Baltimore & O.S.W.R. Co. v. Walker

• Decision Date: 28 April 1908
• Docket Number: No. 6,352.,6,352.
• Citation: 84 N.E. 730,41 Ind.App. 588
• Court: Indiana Appellate Court
• Parties: BALTIMORE & O. S. W. R. CO. v. WALKER.

41 Ind.App. 588

84 N.E. 730

BALTIMORE & O. S. W. R. CO.

v.WALKER.

No. 6,352.

Appellate Court of Indiana.

April 28, 1908.

Appeal from Circuit Court, Orange County; Asa Elliott, Special Judge.

Action by William E. Walker against the Baltimore & Ohio Southwestern Railroad Company. From a judgment for plaintiff, defendant appeals. Affirmed.Gardiner, Tharp & Gardiner, for appellant. A. J. Padgett, D. H. Padgett, Perry McCart, and Alvin Padgett, for appellee.

COMSTOCK, J.

The appellee was plaintiff below. The material allegations of his complaint are as follows: That on the 18th day of April, 1905, plaintiff was engaged in the service of the defendant as a sectionman, working in what was known as the “extra gang,” and under the supervision and direction of a foreman of defendant, to whose orders and directions he was bound to and did conform. That there were several other employés of defendant working with the plaintiff in said extra gang and subject to the orders of said foreman. That at the same time the defendant had another foreman and gang of workmen, constituting what was known as the “regular section gang,” and that on said day both of said gangs of employés were engaged in taking out and replacing a frog, constituting a part of the defendant's track, and that they were doing said work under the orders and supervision of said defendant's foremen. That plaintiff had never been employed in such line of work prior to the happening of the grievances hereinafter complained of. That while engaged in said work plaintiff and said other workmen were doing the work of the defendant, and were in the line of their duty. That while prosecuting said work one of said foremen ordered one of the persons working at said undertaking to go to the toolhouse of defendant and get a chisel to cut the bolts holding the old frog in place. That said employé, in obedience to said order and directions, went to the toolhouse and got a chisel. That said employé held the chisel on one of said bolts and another of said employés began to strike on the head of the chisel with a heavy hammer. That at said time plaintiff was standing a few feet from where said bolts were being cut, and was required by the defendant and the said Murphey, foreman, to remain in the immediate vicinity of said work, and engaged in the line of his duty, and the men holding the chisel and wielding the hammer were at that time engaged in the line of their duty as employés of the defendant. That while thus engaged a piece of the metal of which the chisel was made flew off of the same and struck plaintiff in the left eye and destroyed the sight thereof. That plaintiff's said injury was caused by reason of the negligence and carelessness of the defendant in this: That said defendant furnished the said chisel for the use of its employés to work with in its employment, and that it carelessly and negligently suffered the said chisel to be and become old, worn, and defective, and the head thereof battered and slivered, and to become thereby dangerous and liable to throw out slivers. That until after plaintiff's said injury he had never seen said chisel, and that he had no opportunity to see and observe the same while working to help remove said frog and before his said injury. That defendant, by and through its foremen and officers, knew, or by the exercise of reasonable diligence might have known, of the defective condition of said chisel at and before said injury. That plaintiff's injury was caused wholly by reason of the defendant's carelessness and negligence in permitting said chisel to become defective as alleged, and to be used while in such defective condition, and that his said injury was received without any fault or carelessness on his part contributing to his injury. That by reason of said injury the sight of plaintiff's eye was entirely destroyed, and he was made thereby to suffer great pain and loss of time from his employment, all to his damage of $10,000. Appellant's demurrer for want of facts to the complaint was overruled, and an answer in general denial filed. The action was begun in the Lawrence circuit court, and upon change of venue was tried in the Orange circuit court, in which court a jury returned a verdict in favor of appellee for $3,000, on which judgment was rendered.

The errors assigned are the action of the court in overruling the demurrer of the appellant to the amended complaint, and in overruling appellant's motion for a new trial. The objections made to the sufficiency of the complaint are that the condition of the chisel was obvious to appellee, who was a mature man with good eyesight; that to look at it would be to inspect it, and that such inspection would reveal its condition as readily to one person as another; that the risk was incident to the service, and was assumed; that the selection of the chisel, if negligent, was the negligence of a co-employé; that the averments show that the appellee realized the danger; and that, though an opportunity existed for him to avoid it, he did not attempt to do so. The first and second objections to the complaint are met by the allegation that appellee never saw the chisel until after his injury, and had no opportunity or occasion to examine or observe its condition; that at the time of plaintiff's injury, by the direction of Murphey, the foreman, the bolts were being cut by one of the extra gang holding the sharp edge of the chisel on said bolts by means of a short handle thereon, and another employé striking powerful blows on the head thereof with a heavy sledge hammer, thus showing the chisel was near the ground. Whether appellee could have seen the chisel depended upon the position of the workmen and chisel at the time. He was not called upon to use or inspect the chisel, and his attention was not called to it. It is the duty of the master to furnish an employé reasonably safe tools with which to perform his work. This requirement applies to the safety, not only of an employé using the tool, but to those whose duties require them to be within the risk of injury arising from any defect therein. An employé only assumes the risk ordinarily incident to his employment of which he has knowledge, and such as by the exercise of ordinary diligence could be known to him. Assumption of risk implies knowledge of danger. Appellee was not assisting in the work in which the chisel was being used. The foreman is a fellow servant, and for his negligence in discharging his duty as foreman, when such negligence is alone the cause of injury, the master is not responsible; but the duty of the master to furnish reasonably safe tools is a continuing one. In the selection of the chisel in question the foreman, although a fellow servant, was acting in place of the master. It was his duty to warn appellant's servants of the defective condition of the chisel. Ohio, etc., R. Co. v. Stein, 140 Ind. 61, 39 N. E. 246;Mitchell v. Robinson, 80 Ind. 281, 41 Am. Rep. 812;Nall, Adm'r, v. Louisville R. Co., 129 Ind. 260, 28 N. E. 183, 611;Taylor v. Evansville R. Co., 121 Ind. 124, 22 N. E. 876, 6 L. R. A. 584, 16 Am. St. Rep. 372;Blondin v. Oolitic Quarry Co., 11 Ind. App. 395, 37 N. E. 812;Louisville, etc., R. Co. v. Berkey, 136 Ind. 181, 35 N. E. 3. Having no reason to anticipate injury because of lack of knowledge of the condition of the chisel, there was no occasion to attempt to avoid it.

The court refused to give instructions 1, 2, 3, and 4 requested by appellant. The second instruction would have told the jury that a railroad company is not required to inspect simple tools like a chisel used to cut bolts and nuts, the condition and nature of which is as obvious to one person as another. This instruction might have been proper if the injured party had knowledge or an opportunity of knowledge of the condition of the chisel. The third instruction was correctly refused, because it entirely ignored the knowledge or want of knowledge of appellee as to the condition of the chisel, it being the duty of appellant to furnish reasonably safe tools. The fourth instruction was in effect that if the jury found from the evidence that the condition of the chisel was obvious, that its condition might have been seen by plaintiff, if he had looked toward it, then he is held to have seen it, whether in fact he did see it or not, and if under such circumstances he stood by while the chisel was being used, with his face toward it, then his failure to turn his face away from the work being done would be contributory negligence, and he cannot recover. In view of the fact that appellee testified that he had never seen the chisel before the accident, and there is no evidence to the contrary, and that he was not taking any part in its use, and that contributory negligence will not be presumed, the instruction, although stated conditionally, was not applicable to the evidence. Said first instruction, which would have peremptorily instructed the jury to find for the defendant, was properly refused because the facts presented were properly for the determination of the jury.

Instruction 8, refused, was substantially given in instruction 7 1/2. After having read to the jury certain instructions requested by the appellant, the court proceeded: “Gentlemen of the jury, the law imposes upon me the duty of instructing you what the law is which governs this case.” It is claimed in behalf of appellant that after having read the instructions requested to the jury, that this introductory statement followed by instructions given of its own motion was equivalent to a declaration that what the jury had already heard was merely pro forma; and what follows is what the court has to say to them and what they must regard. No exception was taken to this introductory statement; but we are not prepared to concede that the jury would place the construction upon the expression of which appellant claims it is susceptible. After all the question remains...