C., N.O. & T.P.R. Co. v. Gossett
| Decision Date | 21 June 1929 |
| Citation | 230 Ky. 240 |
| Parties | Cincinnati, New Orleans & Texas Pacific Railway Company v. Gossett. |
| Court | United States State Supreme Court — District of Kentucky |
1. Master and Servant. — Where employee, while holding chisel, was struck on hand by hammer being used by another employee, both chisel and hammer constituted "simple tools" within the simple tool doctrine as regards employer's negligence.
2. Master and Servant. — Master need not provide the best tools for servant which can be procured nor those which are absolutely the most convenient or the safest, but his duty is sufficiently discharged by providing those which are reasonably safe and fit.
3. Master and Servant. — Doctrine of assumed risk is abrogated in this state only where the injury grows out of violation of federal statute enacted for the safety of employees engaged in interstate commerce or in violation of state statute on the subject of interstate commerce.
4. Master and Servant. — Doctrine of assumed risk applied, where servant, while holding chisel on boiler, was struck on the hand by hammer being used by another employee, since injury did not grow out of a violation of federal statute enacted for safety of employees engaged in interstate commerce or in violation of state statute on the subject of intrastate commerce.
5. Master and Servant. — Where employee, while holding chisel, was struck on hand by hammer being used by another employee, and work could have been done by use of an air hammer or sledge hammer and chisel, and it appeared that one method was as safe as other, there was no negligence chargeable to employer in use of one method rather than other, or in changing from one to the other.
6. Master and Servant. — Where employee, while holding chisel, was struck on hand by hammer being used by another employee, latter employee's negligence was a risk assumed by injured employee for which employer could not be held responsible.
Appeal from Pulaskl Circuit Court.
WILLIAM WADDLE and JOHN WELD PECK for appellant.
VIRGIL P. SMITH and TURNER & CREAL for appellee.
Reversing.
The appellee, Dewey Gossett, sued the appellant to recover damages for an injury sustained while employed by it in its shops near Somerset, in Pulaski county, Ky. The negligence alleged in the petition is (1) in directing how the labor should be performed and in the performance thereof; and (2) in failing to provide and use safe and suitable tools and appliances in the execution of the work being done, and in directing the use of unsafe and unsuitable tools in the work. The answer put in issue the allegations of negligence; pleaded contributory negligence on the part of plaintiff; and that the injuries, if any, complained of resulted from the act of a fellow servant, for which appellee assumed the risk. These pleadings were traversed by reply.
Upon the trial but two witnesses testified as to how the injury occurred. These were appellee and Earl Conners, with whom appellee was working at the time. Conners was a boiler maker, and appellee was a boiler maker's helper. He had engaged in that sort of work in appellant's shops for more than a year prior to the injury. At the time of the injury, he and Conners were repairing an Upright boiler, and had taken out the fire box so as to put in a new fluesheet. When they replaced the fire box, it was found necessary to cut some of the metal from it, and bevel it so as to lay a row of wires around it to hold it in place. In doing the beveling they first used an air hammer; that is, a tool which holds a chisel, or bit, and is operated by compressed air.
Conners testifies that they reached a point in the work where it became impracticable to use the air hammer; but appellee testifies that the foreman, who was Conner's father, came to them at the time they stopped using the air hammer, and that Conners complained to the foreman that the air hammer was too hard on him to operate, and that the foreman directed them to do the work with a sledge hammer and hand chisel, which they did. This was done by holding the chisel through the door of the boiler, an apperture 16 inches by 12 inches, with the cutting point of the chisel inside the fire box, and the end for striking with the hammer protruding outside the boiler. When they commenced the use of the sledge and chisel, Conners held the chisel and appellee used the hammer, but after a while it became necessary to strike left-handed with the hammer, and appellee claimed he could not strike left-handed. Conners then took the hammer, and appellee held the chisel. While he was holding the chisel, on a swing of the hammer made by Conners, it accidentally struck some part of the boiler and glanced off, striking appellee's left hand, with which he was holding the chisel, or struck the chisel a glancing blow, and then...
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