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

• Decision Date: 25 February 1915
• Citation: 173 S.W. 357,163 Ky. 157
• Parties: CINCINNATI, N. O. & T. P. RY. CO. v. GUINN.
• Court: Kentucky Court of Appeals

173 S.W. 357

163 Ky. 157

CINCINNATI, N. O. & T. P. RY. CO. v. GUINN.

Court of Appeals of Kentucky.

February 25, 1915

Appeal from Circuit Court, Pulaski County.

Action by W. B. Guinn against the Cincinnati, New Orleans & Texas Pacific Railway Company. Judgment for plaintiff, and defendant appeals. Affirmed.

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

Robert Harding, Emmet Puryear, and John W. Rawlings, all of Danville, and R. B. Waddle, of Somerset, for appellee.

CARROLL J.

This appeal is prosecuted from a judgment obtained by the appellee, Guinn, against the appellant railway company in an action in the Pulaski circuit court to recover damages for personal injuries. The injury complained of happened in this way: The appellee was a member of a working crew in charge of a foreman named Haynes. At the time of his injury appellee was holding an iron rod which, after being heated in a wood fire near by, was placed on an anvil so that the ends might be formed into the desired shape by a heavy hammer which was being used by the foreman, Haynes. The rod was new, but the hammer and anvil were both in a very dilapidated condition and while Haynes was striking the rod a small piece or sliver from either the anvil or hammer struck appellee in the right eye, destroying entirely the sight of that eye.

On this appeal it is urgently insisted that the request of the railway company for a directed verdict in the trial court should have been sustained: First, because the case falls within the simple tool rule obtaining in this state; and second, because if the anvil and hammer were unsafe and defective, this fact was so open and obvious that appellee could not escape knowledge of their condition, and by continuing in the work assumed the risk of the accident.

Putting appellee's evidence in narrative form, he said that he did not know where the anvil and hammer came from, and he had never used either of them or seen them used previous to the day he was injured; that his business was working in concrete, but his foreman had directed him to assist in connecting some iron rods and he was holding the iron rod on the anvil after it had been heated, while his foreman was striking it with the hammer; that he had held two rods while links had been formed on the ends of them in the manner stated, and was holding the third when the accident happened that he had never assisted in work of this kind before, and did not know anything about the habit of chips flying from anvils or hammers; that the rod he was holding had just come from the factory and was free from scales or rust, and he knew that the sliver that hit him came from the hammer or anvil, and not the rod, because of its shape, color, and general appearance; that the foreman had charge of the anvil and hammer, and it was no part of his duty to make any examination of them, and he did not do so, although he was standing close enough to see their condition.

Jack Haynes, another employé, who was assisting in the work, said that the hammer "had some chips off; edge kind of chipped, and the anvil was chipped, too;" that the tools had the appearance of having been used "a right smart and chipped up."

Pete Slaven, another employé, said that "the hammer was in pretty bad condition; it was chipped up at the side;" and that the anvil was in very bad condition; "all chipped up, too."

H. D. Haynes, the foreman in charge of these men, said that the hammer had been used considerably; "seemed that it had had rough use; kind of beat up like old tools are. It was an old tool, ragged around the edge like they sometimes get, and showed considerable rough usage. The anvil had been abused some and chipped around the edges. Awkward work will do that." Asked whose duty it was to inspect the anvil and hammer and see that they were in good condition to work with, he said:

"I don't know. We never had any examination of tools that I know of. Q. How long had you known of them being in that condition--the hammer and anvil that you describe? A. I had only known them a short while. We had been using them about three weeks, I guess. Q. I will ask you whether or not after you have used a hammer for some time, and it is chipped off, is that hammer regarded as safe or unsafe? A. That hammer there--you see the condition of it--was about like all we had, and I had been using it right along. Q. Did you regard this hammer as safe or unsafe? A. Never thought of it being dangerous until after this happened."

Ernest Simon, the claim agent for the company, said that appellee told him shortly after the accident that he did not know where the sliver came from that struck his eye; that he (the witness) had seen the anvil, and it looked like pieces had been chipped off on the sides; but that if he had to do any work with it he would not think it was dangerous.

These are the only witnesses who testified concerning the injury and the circumstances surrounding it, and it appears from this testimony that appellee was a common laborer whose duties did not require him to have charge of or inspect either the hammer or the anvil, and that both of these tools were in a defective, if not dangerous, condition, which condition was known to the foreman in charge of the work appellee was engaged in doing, but that the appellee did not know or appreciate the danger of working with or near these tools.

The duty imposed by law upon the master to exercise ordinary care to furnish reasonably safe appliances and implements for the servant to work with applies in all its vigor to this transaction, and we think it was clearly for the jury to say whether the railway company had discharged this duty in connection with these implements.

Nor is it to be said that the danger in their use was so obvious as that an employé situated as appellee was should have quit his work until the tools were repaired or new ones supplied, or have called the attention of the foreman to...