Chicago, R.I. & P. Ry. Co. v. Lillard

• Decision Date: 12 May 1914
• Docket Number: 3259.
• Citation: 141 P. 8,42 Okla. 109
• Parties: CHICAGO, R.I. & P. RY. CO. v. LILLARD.
• Court: Oklahoma Supreme Court

141 P. 8

42 Okla. 109

CHICAGO, R.I. & P. RY. CO. v. LILLARD.

No. 3259.

Supreme Court of Oklahoma

May 12, 1914

Syllabus by the Court.

When the appliance or machinery furnished employés is at all complicated in character or construction, the employer is charged with the duty of making such reasonable inspection as is necessary to detect defects; but the master is under no duty to inspect simple or common tools, or to discover or remedy defects arising necessarily from the ordinary use of such instruments.

Where an employé is injured in adjusting an ordinary, blunt-ended straight drill bit, thirteen-sixteenths of an inch in size and eight inches in length, by tapping it into the socket with a hammer, it is error to instruct the jury that "it is the duty of the employer to use ordinary care in furnishing to his employés safe and suitable appliances with which to perform the work required of them, and also to see that the same are kept in proper repair, and use ordinary care in making proper inspection of the tools as will protect the employés against dangers incident to their employment," without qualifying such instruction by a statement of the law applicable to the use of simple tools and appliances.

Commissioners' Opinion, Division No. 2. Error from District Court, Seminole County; Tom D. McKeown, Judge.

Action by H. G. Lillard against the Chicago, Rock Island & Pacific Railway Company for damages. Judgment for plaintiff, and defendant brings error. Reversed and remanded.

C. O Blake, H. B. Low, R. J. Roberts, and W. H. Moore, all of El Reno, and Willmott & Dean, of Wewoka, for plaintiff in error.

J. T Williams, of Shawnee, for defendant in error.

HARRISON C.

This was an action brought by plaintiff for injuries resulting in the loss of his eye in endeavoring to drive a steel drill bit into a socket preparatory to drilling a hole through a sheet of steel. Plaintiff was an employé operating a drilling machine in defendant's shops in Shawnee. The bit in question as it appears from the record, was an ordinary hardened steel, blunt-ended straight bit, thirteen-sixteenths of an inch in size and about 8 inches in length, flattened on each side of the top end so as to prevent its turning in the socket into which it was being placed for operation. It appears that, in adjusting these bits in the socket in which they were intended to work, it was necessary to tap them with a hammer or mallet in order to drive them far enough into the sockets that the flattened end or head of the bit would enter a slot and prevent its turning in the socket when the machinery for drilling started.

It is contended by Lillard that the flattened end of the bit in question had at some time become twisted off, thereby leaving no flattened surface to fit into the slot of the socket, and thereby necessitating that it be driven tighter into the socket so as to hold it and prevent it turning when the machinery started. And it is alleged, and this point is not denied, that, in tapping the bit so as to drive it tighter into the socket, a sliver or piece of steel struck Lillard in the eye, putting his eye out. It is contended by counsel for Lillard that the piece of steel which put his eye out flew from the twisted end of the drill and escaped through a slot in the socket which is about an inch in length by a quarter of an inch in width and maybe about 2 1/2 inches above the mouth of the socket so as to enable the driller to look through the slot and see when the end of the drill had reached its proper place, and also to furnish an opening for the insertion of a wedge by which the bit was loosened and taken out when they were through with it. At least counsel for Lillard presents his case on the theory that the piece of steel which put out Lillard's eye came from the twisted top end of the drill and escaped through the slot in question as plaintiff tapped the drill into the socket. As to whether this theory is correct, or whether the particle of steel came from the point of the hardened bit where plaintiff was tapping it with his hammer, it is impossible to tell. Plaintiff himself testified he had no idea where it came from, but that he was stooped over with his face about even with the drill, and that maybe in tapping it too hard he had caused the piece of steel to fly off and strike him in the eye.

The cause was tried, resulting in a verdict and judgment against the railway company in the sum of $2,500, and, from such judgment, the railway company appeals.

Numerous errors are assigned and argued at length; but, as we view the case under the record, and the well-settled rule of law applicable to such cases, there is one material error which necessitates a reversal of the judgment, viz.: That the instructions of the court on the duty of the master to furnish safe tools and appliances for the use of servants, and its duty to inspect them and keep them in repair, were too broad to be properly applicable to the issues made by the pleadings and evidence in this case. The theory upon which the plaintiff based his right of recovery was that the bit in question was defective and unfit for use, in that the top end or head of the bit had been twisted off, and that, the plaintiff being compelled by order of the foreman of the machine shops to use a defective bit, and his injuries having resulted from the use of such defective bit, the company should be held liable for the consequences. Upon the other hand, it is contended by the railway company that the bit in question was so simple in its make and construction that any existing defect could, by the exercise of any degree of care and prudence on the part of the plaintiff, have been as easily seen by him as by the master himself, and that therefore the case came within the rule as to simple tools and appliances, and that the court's instructions were inapplicable to that class of tools or appliances, and therefore misleading and erroneous.

The court instructed the jury on this phase of the case as follows:

"You are instructed that it is the duty of the employer to use ordinary care in furnishing to his employés safe and suitable appliances with which to perform the work required of them, and also to see that the same are kept in proper repair, and use ordinary care in making proper inspection of the tools, as will protect the employés against dangers incident to their employment."

This instruction, it is claimed by plaintiff in error, does not correctly state the law applicable to the facts in the case at bar, in that it imposes upon the master a higher degree of care than the law requires...