Fishburn v. International Harvester Co.

• Decision Date: 12 June 1943
• Docket Number: 35813.
• Parties: FISHBURN v. INTERNATIONAL HARVESTER CO.
• Court: Kansas Supreme Court

138 P.2d 471

157 Kan. 43

FISHBURN v. INTERNATIONAL HARVESTER CO.

No. 35813.

Supreme Court of Kansas

June 12, 1943

Syllabus by the Court.

It is master's duty to furnish servant safe place in which to work and safe instruments for work in which he is engaged.

An employee may assume that employer's duties to provide safe place to work, including structures and surroundings and safe and reasonably suitable machinery, tools implements, and appliances with which to work, have been performed.

One to whom master delegates duties to provide servants safe place to work and safe and reasonably suitable machinery, tools implements, and appliances becomes "vice principal", for whose acts master is liable.

The ordinary risks "assumed" by employee are only those which occur after master's due performance of duties imposed on him by law.

Whether danger of injury to employee as result of furnishing him defective tools and appliances was so obvious that employee must have known thereof or so remote that employer could not by chance have had knowledge of it is question for jury.

A jury's finding, supported by evidence, that master failed to provide servant with safe tools is conclusive on review.

Where evidence, which, if uncontradicted, would fairly prove all that plaintiff must prove to make out case, is introduced, it is error for trial court to find for defendant, though such evidence might be contradicted by other evidence.

In ruling on demurrer to petition, against which no motion to make definite and certain has been levelled, statement of facts therein must be considered with most generous view.

The master's duty to furnish servant with reasonable and safe instrumentalities and places for work is continuing one, in performance of which regard should be had, not only to character of work, but to ordinary hazards of employment.

Whether master has exercised reasonable care to furnish servant reasonably safe instrumentalities and place for work depends in some degree on servant's maturity, intelligence, and discretion, and, in case of youthful employees, master must exercise degree of care which has regard for their youth and inexperience.

Where servant is of full age and ordinary intelligence, rule that master must exercise ordinary care to provide reasonably safe tools for servants is inapplicable, if tools are simple ones in which defects can be readily observed.

Where injured servant had no knowledge of defective conditions in place of work or appliances furnished him by master and danger therefrom was not so obvious that he should have observed it, master cannot escape liability for damages on ground that safe place or appliances doctrine is inapplicable.

The degree of care required of master for servant's safety is greater than that required of servant, and master may be chargeable with negligence in failing to ascertain danger though servant is not chargeable therewith.

An employer's liability for injuries to his employees rests on assumption that employer has more comprehensive knowledge of danger than employees and is inapplicable where employees' means of knowledge thereof is equal to that of employer, as where instrument or tool, defect in which causes injury, is so simple that person accustomed to its use cannot fail to appreciate risks incident thereto.

An employer is not bound to inspect, test, and keep in repair common or simple tools which are reasonably safe when furnished to employees.

It is master's duty, not only to use ordinary care to furnish servant with reasonably safe tools and appliances, but to use such care to make repairs on appliances furnished and keep them in reasonably safe condition.

An employee's "assumption of risk" of injury because of defective tools furnished by employer begins after employer has performed his full duty by providing safe and reasonably suitable tools, and failure to perform such duty constitutes "negligence", unless employee knows of defective condition of tools or could know thereof by reasonable observation.

A servant "assumes risk" only of hazards which are natural incidents of his employment, and hence does not assume risk of injury because of dangerously defective tools furnished him by master, unless he has knowledge or equivalent of knowledge of facts and danger.

The "simple tool doctrine" does not bar servant from bringing action against master for injuries sustained as result of defects in a number of simple tools furnished by master, regardless of whether servant knew or should or could have known of their condition, but cause of action for such injuries may properly be predicated on master's alleged negligence.

Where all tools furnished servant by master were defective, pleading alleging facts showing injury to servant as result of using common tool states cause of action against master for damages, especially where defense of assumption of risk is unavailable because of master's election not to come under Workmen's Compensation Act. Gen.St.1935, 44-544.

In employee's action against employer for injuries sustained when piece of metal flew into plaintiff's eye from hammer, furnished by defendant, when plaintiff tapped head of bolt being fitted into hinge on defendant's truck, petition, alleging that defendant knowingly furnished its employees hammers which were all defective in that they were old cast hammers susceptible of giving off slivers when used for pounding metal objects, stated cause of action as against demurrer.

1. It is the duty of the master to furnish his servant with a safe place in which to work and with safe and reasonably suitable machinery, tools, implements and appliances, with which to perform the work in which the servant is engaged.

2. An employee may enter upon the discharge of his labor assuming his employer has performed his duty with respect to the furnishing of reasonably safe tools.

3. Assumption of risk by an employee begins after the employer has performed his full duty by providing the workman with safe and reasonably suitable tools, and failure to furnish or provide such will constitute negligence unless the workman knew of the defective condition or could have known of it by reasonable observation.

4. Where a master knowingly furnishes a servant with a number of simple tools, all of which are adapted for use in a certain kind of work and all of which are defective, held, the fact that such tools are "simple tools" does not bar a servant from maintaining an action against the master on the theory the latter is guilty of negligence in furnishing the former such defective tools for use in the performance of the work in which he is engaged.

5. Under the circumstances and conditions related in the foregoing syllabus, the question of liability for such negligence is one of fact to be determined from evidence subject to the application of existing laws prescribing the duties, obligations, liabilities and responsibilities, of both master and servant in cases where the latter is engaged in the performance of labor requiring the use of simple tools.

6. The allegations of the petition examined and held to be sufficient as against a demurrer on the ground such petition failed to state a cause of action.

Appeal from District Court, Sedgwick County, Division No. 3; Grover Pierpont, Judge.

Action by Rex J. Fishburn against the International Harvester Company for personal injuries resulting from defendant's failure to furnish safe and proper tools for use by plaintiff as defendant's employee. From a judgment overruling a demurrer to the petition, defendant appeals.

George C. Spradling, of Wichita (Jos. G. Carey, W. F. Lilleston, Henry V. Gott, and A. M. Buzzi, all of Wichita, on the brief), for appellant.

Harold H. Malone, of Wichita, for appellee.

PARKER Justice.

This was an action to recover damages for personal injuries alleged to have been caused as the result of the failure of an employer to furnish safe and proper tools for the use of his employee.

The petition alleged in general terms that the plaintiff was employed by the defendant as a mechanic in a machine and repair shop operated by the latter in the city of Wichita, and in the course of his employment was directed to perform certain work upon one of defendant's trucks, the performance of which required plaintiff, among other things, to hammer on a bolt which was being fitted into a hinge; while engaged in the performance of such duty the plaintiff lightly tapped the head of the bolt with the hammer, furnished by defendant for that purpose, and immediately a small fragment of metal separated from the hammer and flew into plaintiff's left eye with the result he eventually lost the sight thereof and suffered other damages, a detailed statement of which is unimportant to a determination of the issues involved in this appeal; on the date of occurrence of the injury the defendant was engaged in a business, within the terms and provisions of the Workmen's Compensation Act of the State of Kansas, and had filed an election not to come within the provisions of such act, which election was in force and effect at that time.

With respect to the negligence relied upon by plaintiff, the petition contained the following specific allegations:

"*** That plaintiff procured a hammer for said purpose from defendant's tool crib containing hammers and other tools furnished by defendant for said purpose. That said hammers were all cast hammers which had been in long and continuous use in defendant's shop, the exact time being unknown to plaintiff, ***.

"That defendant negligently furnished plaintiff with an unsafe and dangerously defective tool with which to drive said metal bolt and negligently failed to furnish plaintiff with a safe tool

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