Cincinnati, N.O. & T.P. Ry. Co. v. Burton

• Decision Date: 18 April 1919
• Citation: 184 Ky. 2,211 S.W. 186
• Parties: CINCINNATI, N. O. & T. P. RY. CO. ET AL. v. BURTON.
• Court: Kentucky Court of Appeals

211 S.W. 186

184 Ky. 2

CINCINNATI, N. O. & T. P. RY. CO. ET AL. v. BURTON.

Court of Appeals of Kentucky.

April 18, 1919

Appeal from Circuit Court, Pulaski County.

Action by G. D. Burton against the Cincinnati, New Orleans & Texas Pacific Railway Company and another. Judgment for plaintiff and defendants appeal. Reversed.

O. H Waddle & Son, of Somerset, and John Galvin, of Cincinnati Ohio, for appellants.

Wm Catron, of Somerset, for appellee.

QUIN J.

Appellee was injured by a flying sliver or splinter striking his eye and destroying his vision. He was employed at appellant's shops near Somerset, Ky. At the time of the injury he was attempting, through the use of an ordinary hammer, to drive a bushing from a brake hanger. He claims he was doing the work in the manner directed by the company's foreman.

Appellee had been an apprentice machinist for about 3 1/2 months, and prior to that time he had been a machinist's helper. According to his testimony he had assisted in driving out from 75 to 100 bushings, but in each of these instances a sledge hammer was used; the work being done by two men, instead of one. He bases his cause of action on the fact that the foreman did not furnish him sufficient help and negligently directed him to drive the bushing out in an improper way. It is also in evidence that a pair of goggles had been furnished appellee, the use of which would have prevented the injury; but he contends it had not been the custom to use goggles in the removal of bushings. That particles of steel are likely to fly when two metals are brought together seems self-evident; appellee's theory being that these slivers are not so likely to fly when the sledge hammer and punch are used, the punch being of softer metal and not casehardened.

The case was submitted to a jury, and a judgment returned in favor of the appellee against the company and its foreman.

Many defenses relied upon are urged as grounds for reversal, among others the simple tool doctrine. There is a recognized distinction between a master's duty and liability to a servant in the use of complicated or dangerous tools and in the use of so-called simple tools. In the use of the latter the nonliability of the master is grounded on the fact that any defect in a simple tool or the resultant effects of its use must be so obvious to a person of ordinary intelligence that the risk of danger incident to such use must be held to be assumed by the servant.

An ordinary hammer is one of the most simple of tools. There is no complication about a hammer; it is not a piece of machinery which requires any attention whatsoever to keep in order; it cannot get out of fix, unless the handle breaks; it requires neither art, science, nor skill in its use; brawn and muscle do the work, and it is known to be one of the most harmless of all tools to the person using it.

It is a matter of common knowledge that, when a steel hammer is used with great force upon other steel implements, small chips or scales are liable to break off and fly from one implement or the other, and hence danger therefrom is an ordinary risk. Bailey on Per. Inj. § 370; Thompson on Negligence, §§ 4707, 4708; Labatt's Mas. & Ser. § 914.

The simple tool doctrine, as a defense, has been upheld in this state in the following cases: Ladder, Duncan v. Gernert Bros. Lumber Co., 87 S.W. 762, 27 Ky. Law Rep. 1039; rail cutter, Langhorn v. Wiley, 91 S.W. 255, 28 Ky. Law Rep. 1186; shovel, Stirling Coal & Coke Co. v. Fork, 141 Ky. 40, 131 S.W. 1030, 40 L.R.A. (N. S.) 837; iron rod, Flaig v. Andrews Steel Co., 141 Ky. 391, 132 S.W. 1015; sledge hammer and T-rail cutter, Ohio Valley Riv. Co. v. Copley, 159 Ky. 38, 166 S.W. 625; claw bar and spike maul, Hoskins v. L. & N. R. R. Co., 167 Ky. 665, 181 S.W. 352; axe, Consolidation Coal & Coke Co. v. Music, 178 Ky. 790, 199 S.W. 1074; tie pick, Turkey Foot Lum. Co. v. Wilson, 182 Ky. 42, 206 S.W. 14; spike maul and chisel T-rail cutter, Donahue v. L., H. & St. L. Ry. Co., 183 Ky. 608, 210 S.W. 491.

In the cases below cited, various kinds of hammers, backing hammer, riveting hammer, hand hammer, sledge hammer, snap hammer, bolt hammer, etc., have been classed as simple tools: Georgia R. R. v. Brooks, 84 Ala. 138, 4 So. 289; Wrought Iron Range Co. v. Zeitz (Colo.) 170 P. 181; Baker v. Western & Atlantic R. Co., 68 Ga. 699; Buaso v. Wells Bros. Co., 167 Ill.App. 574; Webster Mfg. Co. v. Nisbett, 205 Ill. 273, 68 N.E. 936; Amer. Car & Foundry Co. v. Fess, 53 Ind.App. 136, 101 N.E. 318; Lynn v. Glucose Sugar Ref. Co., 128 Iowa 501, 104 N.W. 577; Wiggins v. Standard Oil Co., 141 La. 532, 75 So. 232; Golden v. Ellis, 104 Me. 177, 71 A. 649; Edward L'Houx v. Union Cons. Co., 107 Me. 101, 77 A. 636, 30 L.R.A. (N. S.) 800; Rawley v. Collian, 90 Mich. 31, 51 N.W. 350; Wachsmuth v. Shaw Elec. Co., 118 Mich. 275, 76 N.W. 497; Dompier v. Lewis, 131 Mich. 144, 91 N.W. 152; Koschman v. Ash, 98 Minn. 312, 108 N.W. 514, 116 Am.St.Rep. 373; Rahm v. C., R.I. & P. Ry., 129 Mo.App. 679, 108 S.W. 570; Martin v. Highland Park Mfg. Co., 128 N.C. 264, 38 S.E. 876, 83 Am.St.Rep. 671; O'Hara v. Brown Hoisting Mach. Co., 171 F. 394, 96 C.C.A. 350; Ruger v. Coatesville Boiler Wrks., 257 Pa. 252, 101 A. 639; Mo. P. Ry. v. Hill, 3 Wilson, Civ. Cas. Ct. App. § 381; H. S. Hopkins Bridge Co. v. Burnett, 85 Tex. 16, 19 S.W. 886; Meyer v. Ladewig, 130 Wis. 566, 110 N.W. 419, 13 L.R.A. (N. S.) 684.

Appellee seeks to avoid the effect of the simple tool doctrine, so thoroughly and firmly established in this and other jurisdictions, because (1) he was attempting to remove the bushing in the manner directed by the company's foreman; (2) he was not given a safe place within which to work; and (3) it was work that should have been done by two men; in other words, he was required to do the work in an improper way.

As to a servant overtaxing his strength in attempting to perform a task given him, it is held in Harris v. C., N. O. & T. P. Ry. Co., 176 Ky. 846, 197 S.W. 464, that the servant is the best judge of his own strength and should not overtax it. See, also, Sandy Valley & Elkhorn Coal Co. v. Tackitt, 167 Ky. 756, 181 S.W. 349, L.R.A. 1916D, 445. And this court has expressly held that in the use of simple tools the master assumes no additional liability for accidents to the servant, by directing him to continue the use of such tools, though he does so with knowledge of their defective condition. As said in Turkey Foot Lumber Co. v. Wilson, supra:

"If the tool and the uses to which it is devoted are so simple that any defects in the tool or dangers in its use are equally and obviously apparent to both the master and the servant, and for that reason the master is absolved from the duty of inspection and instruction, and the servant assumes the risk of its use, then for the very same reasons the master assumes no additional or new liability by a promise to repair or an assurance of safety, because the master possesses no knowledge of the condition of the instrument or any danger from its use not equally possessed by the servant, and cannot be said to be guilty of any negligence of which the servant is not likewise guilty."

To the same effect is Stirling Coal & Coke Co. v. Fork, supra, involving an injury due to the defective handle of a shovel. Having discovered the defect, the appellee, Fork, told the foreman he did not want to use the shovel, whereupon the foreman told him to go ahead and work with it; that others had been using it, and he could do so; that he would get him another one. The court holds that the doctrine protecting a servant working under an assurance that the thing is safe or will be repaired has no application to the facts of that case.

In Donahue v. L., H. & St. L. Ry. Co., 183 Ky. 608, 210 S.W. 491, it was sought to avoid the effect of the simple tool doctrine, because the appellant...