Donahue v. Louisville, H. & St. L. Ry. Co.

• Decision Date: 18 March 1919
• Citation: 183 Ky. 608,210 S.W. 491
• Parties: DONAHUE v. LOUISVILLE, H. & ST. L. RY. CO.
• Court: Kentucky Court of Appeals

210 S.W. 491

183 Ky. 608

DONAHUE v. LOUISVILLE, H. & ST. L. RY. CO.

Court of Appeals of Kentucky.

March 18, 1919

Appeal from Circuit Court, Jefferson County, Common Pleas Branch First Division.

Action by Jerry Donahue against the Louisville, Henderson & St Louis Railway Company. From a directed verdict for the defendant, plaintiff appeals. Judgment affirmed.

Elmer C. Underwood, of Louisville, for appellant.

Helm &amp Helm, of Louisville, for appellee.

SAMPSON J.

The Louisville, Henderson & St. Louis Railway Company operates an interstate railroad, and was at the times complained of and is now engaged in interstate commerce. Appellant Jerry Donahue was employed by said railway company as one of a crew of trackmen engaged in maintaining the tracks in the Louisville yards of said company. On September 21, 1916 appellant Donahue and a colored man named Logsdon were directed by the foreman of the gang to take a spike maul and a chisel Trail cutter, and go to a certain pile of Trails in the yards of the company and there cut an ordinary steel railroad rail into two parts. This work was accomplished by placing the chisel on the steel rail at the point where it was marked to be cut, and then by striking the chisel with the maul. The colored man held the chisel on the rail, while appellant Donahue struck the top of the chisel with the spike maul. The chisel was an old one, that had been long in use, and the top or head of it had been battered and "mushroomed" by heavy strokes from the spike maul. The spike maul likewise was old and battered. In the course of the work a sliver or steel splinter flew from the head of the chisel and struck appellant Donahue in the left eye, inflicting a more or less painful injury, and impairing the sight of the eye in part. From this injury Donahue lost only a few days' work.

About a month later Donahue, with his gang, were engaged in repairing a switch in one of the yards. The foreman directed Donahue to take the clawbar, a steel bar about four or five feet long, with a claw on one end so arranged as to pull spikes from cross-ties, and place the claw thereof over the head of a steel spike, which had been driven into the bolt hole of the rail and splice, in order to drift the rail into position, and hold the bar in such position as to allow a fellow workman to strike the heel thereof with the spike maul, and thus drive the spike from the hole in the steel rail. While appellant Donahue was thus holding the clawbar and the fellow workman was striking the heel as aforesaid, a sliver of steel flew from the heel of the clawbar and struck appellant in the right eye, destroying the sight thereof. On the 18th day of January, 1917, Donahue instituted this action in the Jefferson circuit court under the federal Employers' Liability Act (Act April 22, 1908, c. 149, 35 Stat. 65 [U. S. Comp. St. §§ 8657-8665]), in two paragraphs, seeking to recover of appellee, railway company, damage for each of said injuries.

After a general demurrer to the petition had been overruled, and other preliminary motions passed upon, defendant filed an answer traversing the allegations of the petition, and in a second paragraph averred that plaintiff Donahue was guilty of such contributory negligence as would bar his right of recovery. By the third paragraph the answer alleged that plaintiff Donahue--

"in entering and remaining in the service of the defendant assumed certain risks and dangers incident to his work, and by his contract of service with the defendant he assumed all the ordinary risks and dangers incident to his employment, among which was the risk of injury set up in the petition."

The affirmative allegations of the answer were controverted by reply. The case came on for trial before a jury, and at the conclusion of plaintiff's evidence counsel for defendant company moved the court to peremptorily instruct the jury to find and return a verdict for it, which motion was sustained by the court, and plaintiff's action dismissed, and of this he complains upon this appeal.

The railroad company is an interstate common carrier, and was engaged in interstate commerce at the time of the two injuries of which Donahue complains, and Donahue is admitted to have been in its employ at each of said times, and it may be conceded was engaged in interstate commerce. Appellee company insists that the clawbar, chisel, and spike maul employed by appellant Donahue and his fellow workman, at the times of which he complains of injury, are common tools, governed by what is generally known as the "simple tool" rule, and that the master did not owe to Donahue the duty of inspecting the tools for defects, but that such duty rested upon Donahue as the workman having the tools in charge. To this contention appellant Donahue responds by conceding the tools employed to come within the rule stated, but asserts the most that could be said against appellant is that he was guilty of contributory negligence in continuing to use the tools which he knew to be in a defective condition, and that by the federal act, under which this suit is prosecuted, contributory negligence is not a bar, but may be pleaded in mitigation of damages only, and the trial court erred to appellant's prejudice in sustaining the motion for peremptory instruction. Appellee company does not accede to this insistence, and attempts to avoid it by saying that the act of appellant Donahue in continuing to use the tools after he knew of their defective condition is not properly classified as contributory negligence, but was an assumption of risk on his part, the tools not being within the federal Appliance Act, which is conclusive of his right to recover.

Appellant Donahue admits that he was thoroughly acquainted with the tools with which he was working at the time of the two accidents. He had been engaged as a trackman for about 15 years, 9 years of which had been spent in the yards of the appellee company, where the injuries occurred. During that 9 years he had used many different chisels similar to the one employed at the time of the first accident. The clawbar with which he was working at the time of the second accident, he testifies, had been on the job, and he had been using it, for 9 years. He admits that he knew of its battered condition, that he had seen it hammered in the same manner with the spike maul before the occasion in question, and that the heel of the claw was battered and bruised so as to be quite visible. A photograph of the clawbar and the heel thereof is made a part of the evidence. Donahue also admits that there were some 12 or 13 chisels in the tool box at the time he and his colaborer selected the maul and chisel with which to do the cutting on September 21st, and that all of said chisels were about alike; the top or head of each was spread and battered by long use. The defective condition of the tools was open and obvious; the defects were as apparent to Donahue as to any one, and the nature of the tools was so simple and uninvolved as to be understood by any one with ordinary vision and mentality. Donahue had a better opportunity to see and know the condition of the tools with which he worked than did the foreman or master.

Under facts similar to those in this case, this court has repeatedly held that the simple tool rule, which exempts the master from liability where the instrument or tool which is the cause of the injury is of so simple a nature and character that a person accustomed to its use cannot fail to appreciate the risks of...