Ernst v. The Chicago Great Western Railroad Company
| Decision Date | 10 January 1920 |
| Docket Number | 22,347 |
| Parties | J. S. ERNST, Appellee, v. THE CHICAGO GREAT WESTERN RAILROAD COMPANY, Appellant |
| Court | Kansas Supreme Court |
Decided January, 1920.
Appeal from Wyandotte district court, division No. 1; EDWARD L FISCHER, judge. Opinion denying a rehearing filed January 10, 1920. (For original opinion of reversal, see 105 Kan 706, 185 P. 1053.)
Rehearing denied.
A. L. Berger, of Kansas City, and Walter H. Jacobs, of Chicago, Ill., for the appellant.
J. K. Cubbison, and William G. Holt, both of Kansas City, for the appellee.
It is contended in the appellee's petition for a rehearing that the decision in the present case (Ernst v. Railroad Co., 105 Kan. 706, 185 P. 1053) is at variance with S. K. Rly. Co. v. Croker, 41 Kan. 747, 21 P. 785, where a recovery was permitted on an injury to a workman's eye caused by a particle which flew from a stone which the workman had hit with a hammer, the handle of the hammer being a crooked green stick cut from the brush near by. But in the Croker case, the dangerous nature of the defective tool had been ascertained before the injury to Croker's eye occurred. He had already been slightly injured by the use of such a handle. Moreover, it does not appear that the precise question which controls the present case was urged or discussed in the Croker case. Here we have only to do with a defective tool, not one apparently or obviously dangerous, as well as one which was simple and common in the plaintiff's vocation. No hint of danger was given to or recognized by the master. The most that could be inferred from the plaintiff's statement, "This wrench is bad; this wrench is not very good; I've got to have one," was that the workman could not do good work with it nor work conveniently with it.
Again, it might be observed that the Croker case was itself an extreme one. It was so declared in Morbach v. Mining Co., 53 Kan. 731, 746, 37 P. 122. It was cited in Railway Co. v. Puckett, 62 Kan. 770, 774, 64 P. 631, where it was hardly pertinent, and again in Railway Co. v. Sledge, 68 Kan. 321, 327, 74 P. 1111, in which it was said that the principle governing exemption of masters for injuries to workmen in the use of simple, common tools with which the workmen were familiar had not (at that time) been pushed very far in this state.
But in Hill v. Railway Co., 81 Kan. 379, 105 P. 447, the matter was carefully considered, and the venerable jurist (Justice Benson) who had to write the court's opinion, but who did not personally agree with it, admitted in his dissenting opinion that the principles of law laid down in the syllabus were correct. The syllabus reads:
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