Fischer v. Chicago, Milwaukee & St. Paul Railway Co.
| Decision Date | 22 December 1922 |
| Docket Number | 23,164 |
| Parties | JOSEPH H. FISCHER v. CHICAGO, MILWAUKEE & ST. PAUL RAILWAY COMPANY |
| Court | Minnesota Supreme Court |
Action in the district court for Goodhue county to recover $30,000 for injuries received while in defendant's employ. The answer alleged that the injuries were due solely to the negligence and want of care on the part of plaintiff. The case was tried before Johnson, J., who denied defendant's motion for a directed verdict, and a jury which returned a verdict for $3,000. From an order denying its motion for judgment notwithstanding the verdict or for a new trial defendant appealed. Affirmed.
Assumption of risk in use of simple tool.
1. An employe ordinarily assumes the risks in using a simple or common tool which is defective. But, where he complains of the defect and the employer promises to remedy it, the employer assumes the risks pending the fulfilment of the promise.
Employe's complaint of the defect.
2. It is not necessary for the employe to assert expressly that he makes the complaint because of danger to himself. The fact that he complains is sufficient unless the circumstances justify the employer in believing that the element of danger is waived.
Effect of employer's promise to remedy it in the future on condition.
3. Where the employer, instead of promising to remedy the defect immediately, promises to do so on the happening of a certain event in the future, he assumes the risk pending the fulfilment of the promise.
Question of risk in this case for the jury.
4. Whether plaintiff assumed the risk in the present case was a question of fact for the jury.
F. W Root, C. O. Newcomb and A. C. Erdall, for appellant.
Samuel A. Anderson and P. B. Green, for respondent.
This is an action for personal injuries in which plaintiff had a verdict and defendant appeals from an order denying its alternative motion for judgment notwithstanding the verdict or for a new trial.
Plaintiff was a pipe fitter in defendant's shops at Austin, Minnesota, and at the time of the accident was engaged in repairing the air hose on a locomotive employed in interstate commerce. A Stillson or pipe wrench which he was using slipped, causing him to fall in such a manner that he sustained an injury to the lower part of his spine. The teeth of the wrench had become worn and blunt, and the action is based on the claim that defendant had failed in its duty to furnish plaintiff a safe and suitable tool with which to do his work. The court submitted to the jury the question whether defendant was chargeable with negligence and the question whether plaintiff has assumed the risk.
Plaintiff had been in the employ of defendant in this same line of work for about 3 years. Whenever the teeth of his Stillson wrench became worn and blunt from use he procured an order from the foreman and presented it to the local storekeeper of the company and obtained a new one. The teeth of the wrench in question became worn, and he procured an order from the foreman which he presented to the storekeeper, saying that the old wrench was worn out and he wanted a new one. The storekeeper replied that he had none on hand, but would give him one as soon as they came in. About a week later he procured another order from the foreman which he presented to the storekeeper and received the same reply as before. He continued work with the old wrench and a few days later the accident happened.
Defendant insists that as the wrench was fit and suitable when originally furnished and was a common and simple tool, plaintiff assumed the risks attending its use. It is well settled that an employe ordinarily assumes the risks incident to the use of simple or common tools, and that the employer owes no duty to inspect such implements for the purpose of discovering and remedying defects resulting from their use in the customary manner. Koschman v. Ash, 98 Minn. 312, 108 N.W. 514, 116 Am. St. 373, and the numerous cases which follow and apply the principle there stated. And defendant insists that the rule suspending the assumption of risk where an employe, who has complained that an appliance or instrumentality is defective, continues to use it in reliance on a promise of the employer to remedy the defect, does not apply where the defect is in a simple or common tool. Authorities are cited sustaining this claim. Webster Mnfg. Co. v. Nisbett, 205 Ill. 273, 68 N.E. 936; Standard Oil Co. v. Helmick, 148 Ind. 457, 47 N.E. 14; Turkey Foot Lbr. Co. v. Wilson, 182 Ky. 42, 206 S.W. 14; McGill v. Cleveland & S.W. Traction Co. 79 Oh. St. 203, 86 N.E. 989, 19 L.R.A. (N.S.) 793, 128 Am. St. 705; Ernst v. Chicago Great Western R. Co. 105 Kan. 706, 185 P. 1053.
This court has never extended the simple tool doctrine to include such cases. There was no promise to remedy defects in any of the cases in which that doctrine has been applied in this state. While the question may not have been passed upon directly, this court seems to have taken it for granted that the promise of the employer to repair a common tool or implement relieved the employe from assuming the risk of injury in using it while waiting for the repairs.
In Koschman v. Ash, 98 Minn. 312, 108 N.W. 514, 116 Am St. 373, the court observed that the employe had not complained of the condition of the hammer there involved. In De Greif v. Northwestern Knitting Co. 106 Minn. 15, 118 N.W. 558, 119 N.W. 956, it is said "that in the absence of complaint to the master and of promise on his part to remedy," the servant assumes the risk incident to the use of common tools in a defective condition. In Schlitz v. Pabst Brewing Co. 57 Minn. 303, 59 N.W. 188, the driver of a delivery wagon complained that it was defective. He was told to use it that day and they would give him another the next day. He used it and was injured. The court remarked that both employer and employe knew the condition of the wagon equally well, and that ordinarily the risk would have been assumed by the employe, but held that under the circumstances the risk was assumed by the employer. In Anderson v. Fielding, 92 Minn. 42, 99 N.W. 357, 104...
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