Blankenship v. A. M. Hughes Paint & Glass Co.

• Decision Date: 13 February 1911
• Citation: 135 S.W. 970,154 Mo. App. 483
• Parties: BLANKENSHIP v. A. M. HUGHES PAINT & GLASS CO.
• Court: Missouri Court of Appeals

135 S.W. 970

154 Mo. A. 483

BLANKENSHIP v. A. M. HUGHES PAINT & GLASS CO.

Kansas City Court of Appeals. Missouri.

February 13, 1911.

Rehearing Denied April 3, 1911.

1. MASTER AND SERVANT (§§ 101, 102)—SAFE TOOLS—DUTY TO FURNISH.

One must furnish his employés with reasonably safe tools.

2. MASTER AND SERVANT (§ 208)—ASSUMPTION OF RISK—SCOPE.

An employé assumes risks ordinarily incident to the business, but not those arising from his employer's failure to furnish reasonably safe tools.

3. MASTER AND SERVANT (§ 278)—INJURY TO EMPLOYÉ—DEFECTIVE TOOLS — NEGLIGENCE —EVIDENCE.

An employé injured by a sliver of steel flying from a tool struck by him with a hammer made out a prima facie case entitling him to recover on proving that the tool was too highly tempered, that he used ordinary care, and that the injury was caused by the defect.

4. MASTER AND SERVANT (§ 234)—DEFECTIVE TOOLS—CONTRIBUTORY NEGLIGENCE.

That an employé knew the tool, a sliver of which flew off and injured him when he struck it, was battered, does not show contributory negligence in using it.

5. APPEAL AND ERROR (§ 1068) — HARMLESS ERROR—INSTRUCTIONS.

Error in a personal injury action in submitting one question of a defective condition not causing the injury, in connection with a question of another defect, was harmless, where the jury was bound to find existence of the second condition.

6. MASTER AND SERVANT (§ 124) — TOOLS — SAFETY.

An employer purchasing a tool from a reputable manufacturer sufficiently inspects it for defects by looking it over, without separating its parts for hidden defects; but tools of special design, the use of which the manufacturer does not know, are not presumptively safe.

7. APPEAL AND ERROR (§ 715) — REVIEW— BILL OF EXCEPTIONS.

Argument of counsel cannot be reviewed, where the language appears by ex parte affidavits and not by bill of exceptions.

Appeal from Circuit Court, Jackson County; Jas. H. Slover, Judge.

Action by William H. Blankenship against A. M. Hughes Paint & Glass Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Boyle & Howell, for appellant. Frank P. Walsh, E. R. Morrison, and James P. Aylward, for respondent.

BROADDUS, P. J.

This is an action for damages for injury received by plaintiff as the result of the alleged negligence of the defendant. On August 24, 1908, the plaintiff was employed by the defendant, and, while he was engaged in the course of his employment in coopering a certain keg, he struck a coopering tool with a hammer, whereupon a piece of steel broke off the side of the tool and struck him in the left eye, and from the effects of the wound he thereby received he finally lost the sight of the eye altogether. The plaintiff is a corporation owning and operating a paint and glass plant in Kansas City, Mo. For cause of action it is alleged that the tool, which consisted of a piece of steel used for the purpose of coopering barrels, was improper and insufficient for the purpose. Various defects are assigned, among which was one that the tool was not reasonably safe, in that the face was worn and battered and also the edges, and was not properly tempered, in that it was too highly tempered and thereby rendered too hard and brittle, so that there was danger of the same chipping and small pieces flying off and striking defendant's servants while using the same; that defendant negligently failed and omitted to exercise reasonable care to inspect the said tool and failed to warn plaintiff of its unsafe and dangerous condition; and that defendant negligently failed to adopt, promulgate, and enforce adequate rules for the management of the work of the establishment, particularly in and about the use of said coopering tool. The answer is a general denial, and an allegation of contributory negligence.

The plaintiff at the time of his injury was engaged in filling and coopering small barrels or kegs of paint. While coopering the kegs, he would place the edge of the tool under the hoop and against the barrel and strike it from underneath. The keg on which plaintiff was working at the time of his injury was about 14 inches high, and he was working on the second hoop within about 6 inches from the floor. While he was loosening the second hoop, it being hard to get off, it became necessary to strike the tool a hard blow with the hammer. When the blow was struck, a piece of the steel flew off the side of the tool and struck him in the eye. The plaintiff had been using the tool in question for several months and used others of a different kind prior thereto. Plaintiff testified that he had sharpened the tool on a grindstone, to keep it from slipping off the hoops, and that when he needed a new tool he was directed to go to Mr. Morris to get it; that he was told by defendant's superintendent, Mr. Durham, that when he wanted one Morris was the person to go to; that the tool he had formerly used was battered on the edges, and he asked Morris for a new one and got the one in question; that the top of the tool was battered and overhung; but that he did not strike it on top, but on the side; that the chip which struck him did not come from a battered or mashed place on the side of the tool; that the defendant had no system of inspecting tools or any employé that went around examining them; that the side and edge along where this chip came out, as well as the other side, were flattened and mashed down, so it projected, which was the result of being hammered. The blade of the tool in question was a flat piece of steel with blunt end and sides and the handle of the same material and all in one piece. And that it was used by placing the point of the blade on its edge or the side against the hoop as the occasion demanded. Prior to the use of this one the defendant had used a tool with a wooden handle. All the tools used by the defendant up to the time of plaintiff's injury had been bought from the Hauck Tool Works, a standard manufactory of tools, and had given satisfaction. The tools of the kind in question were made after a special design of the defendant, and the manufacturer did not know that it was to be worked by using the sides as well as the point. It was shown by experts this tool was highly tempered, and thereby rendered brittle, and as such was liable to chip off when struck by a hammer; and that this quality could have been detected by a...