Cudahy Packing Co. v. Skoumal

• Citation: 125 F. 470
• Decision Date: 12 October 1903
• Docket Number: 1,843.
• Court: U.S. Court of Appeals — Eighth Circuit
• Parties: CUDAHY PACKING CO. v. SKOUMAL.

125 F. 470

CUDAHY PACKING CO. v. SKOUMAL.

No. 1,843.

United States Court of Appeals, Eighth Circuit.

October 12, 1903

Edson Rich and Charles E. Clapp, for plaintiff in error.

Matthew Gering, for defendant in error.

Before SANBORN, THAYER, and VAN DEVANTER, Circuit Judges.

THAYER Circuit Judge.

This is an action for personal injuries which Anton Skoumal, the defendant in error, brought against the Cudahy Packing Company, the plaintiff in error, recovering therein a verdict against the defendant company in the sum of $5,000. The plaintiff below filed a petition which contained, among others, the following allegations in substance: That during the latter part of the year 1899 he was employed by the defendant company to work in its blacksmith shop as a skilled blacksmith; that on January 15, 1900, while the plaintiff was in the performance of his usual duties, the defendant company negligently furnished to the plaintiff and to his helper a hammer and holding iron which were defective and unfit for use, in that the hammer was too highly tempered and brittle and was somewhat broken and worn upon the edges thereof; that after using the defective hammer and the holding iron for some time prior to January 15, 1900, plaintiff did no that day direct his helper to report the defective condition of the hammer, and request the defendant, through the foreman of its blacksmith shop, to furnish him and his helper with a new hammer that was fit for use, or to repair the hammer which they were using so that it might be further used without danger; that on said day, when this complaint was made to the foreman of the blacksmith shop, he directed the plaintiff to continue to use the hammer for the present, until he had finished the piece of work upon which he was then engaged assuring him at the time that no immediate danger would be incurred in using it, and promising him that, upon the completion of the job on which he and his helper were then engaged, he would obtain and furnish the plaintiff a new hammer with which to work; that, in reliance upon such assurance and promise, he continued to use the defective tool; that about an hour after such complaint was made and the promise given, and prior to the completion of the job on which the plaintiff and his helper were then engaged, and while the plaintiff was using the hammer with ordinary care and caution, a fragment from the head thereof flew off, striking the plaintiff in his left eye, and injuring it so that his sight was destroyed, and the eye had to be removed. On the trial of the case, evidence was produced by the plaintiff which tended to establish the aforesaid allegations and all other material allegations of the complaint.

On the trial in the circuit court the defendant company saved exceptions to four excerpts from the charge, on which some reliance seems to be placed for the purpose of obtaining a reversal of the judgment; but a careful consideration of the parts of the charge to which the exceptions relate has satisfied us that the exceptions are not well founded, and that the charge, considered as a whole, was substantially correct, or at least that the plaintiff in error has no just cause to complain. Inasmuch as the paragraphs of the charge which are said to be erroneous are somewhat lengthy, and consist largely of commentaries on the evidence, such as the trial judge was clearly entitled to make, it is deemed unnecessary to quote them in full. The rule of law which was enunciated in the several paragraphs in question was to the following effect: That if Skoumal, the plaintiff below, saw the defects in the hammer prior to the accident, and continued to use it in its defective condition, he thereby assumed the risk of injury, and could not recovery, but that he might recover, notwithstanding he was aware of the defects in the hammer, provided the jury were satisfied by the evidence that he caused the defective condition of the hammer to be made known to the foreman in charge of the defendant's blacksmith department prior to the accident and the foreman, after examining the hammer, acknowledged that it was in a bad condition, but directed Skoumal and his helper to go on with the job then in hand, promising them that a new hammer would then be supplied, and provided, further, that Skoumal, in reliance upon this promise, continued to use the implement, and was injured by a fragment flying therefrom before the job was completed. This statement of the law was supplemented by the further statement, in substance, that, even on the state of facts last supposed, the plaintiff would not be entitled to recover, provided Skoumal, as a sensible man, could see that, owing to the condition of the hammer, there was danger in every blow he struck, because in that event the danger of using the hammer was so imminent that he would be guilty of contributory negligence.

As before remarked, we are unable to discover any material error in these excerpts from the charge, since the law is well settled that when a defect in a tool or an instrument is called to the master's attention by his servant, and he directs or requests the servant to continue to use it in its defective condition for the time being, promising to have it soon repaired or to supply a better implement, the servant, by complying with such an order or request, cannot be regarded as having assumed the risk of getting hurt, unless the risk is so great or imminent that a person of ordinary prudence would not have continued to use the defective tool, although he was requested or ordered to do so. It would be little short of absurd to hold that a servant voluntarily agreed to assume the risk of being injured by the use of a defective implement or appliance, and to absolve the master from liability therefor, when it appears that he complained to the master of the defect, and the master admitted that the complaint was well founded, but induced the servant to continue using the defective tool or appliance by promising to repair it within a reasonably short space of time, or to supply a better. That a servant will not be held to have assumed the risk of injury incident to working with a defective implement of any sort, under the circumstances last stated, is well settled. Hough v. Railway Co., 100 U.S. 213, 224, 225, 25 L.Ed. 612, and cases there cited; Homestake Mining Co. v. Fullerton, 16 C.C.A. 545, 549, 69 F. 923; Green v. Minneapolis & St. Louis Railroad Co., 31 Minn. 248, 250, 17 N.W. 378, 47 Am.Rep. 771; Wood on Master & Servant, Secs. 378, 379, 380.

Misconduct of the jury in taking certain exhibits to their room at the conclusion of the trial, and misconduct on the part of counsel for the plaintiff below in his closing address to the jury, are also assigned as reasons for reversing the judgment below.

The record discloses that, when the jury retired to consider their verdict, the hammer which is said to have caused the injury to the plaintiff's eye, and an iron used in connection therewith, called a 'flatter,' were taken to the jury room, and were examined by the jurors while they were considering their verdict. These two implements had been exhibited to the jury repeatedly during the progress of the trial, because one defense which was interposed by the defendant company was to the following effect: That shortly prior to the accident Skoumal had tempered the flatter, and had made that tool too hard and brittle, and that the injury which he sustained was due to this fact, or, in other words, to the plaintiff's own fault. Whether he had thus tempered the flatter and made it too hard, and thereby occasioned the injury of which he complained, was one of the disputable issues of fact before the jury, and experts gave their opinion as to whether the flatter had or had not been too highly tempered. The fact that these implements were taken to the jury room was made one of the grounds of a motion for a new trial, and affidavits on the part of all the jurors were filed. All of the jurors admitted in their respective affidavits that the hammer and flatter were in the jury room and were examined by the jurors, but none of them deposed that such examination had had any influence upon their verdict, while at least ten of the jurors affirmed that such examination of the two implements as was made in the jury room did not, in their opinion, have any effect whatever upon the verdict that was ultimately rendered. In overruling the motion for a new trial, the trial judge remarked that he had no recollection of having told the jury not to take the hammer and flatter to the jury room; but as reputable parties had testified that the court did so instruct the jury, and as the statement of these parties was in no wise contradicted, and as the court had no personal recollection on the subject, it felt compelled to find as a fact that he did direct the jury not to take the hammer or the flatter to their room. Nevertheless the learned trial judge overruled the motion for a new trial, and directed a judgment to be entered on the verdict; being satisfied, apparently, that the presence of these implements in the jury room had had no perceptible effect upon the verdict.

The jury were clearly guilty of misbehavior, if, in violation of directions given by the trial judge, the tools in question were taken to their room. But it...