Ft. Smith & W. R. Co. v. Holcombe
Decision Date | 29 May 1916 |
Docket Number | Case Number: 6887 |
Citation | 1916 OK 593,158 P. 633,59 Okla. 54 |
Parties | FT. SMITH & W. R. CO. v. HOLCOMBE. |
Court | Oklahoma Supreme Court |
¶0 1. Master and Servant--Injuries to Servant--Tools and Appliances--Inspection.
It is the duty of the master to use ordinary care to provide his employees with reasonably safe tools and appliances, and from time to time inspect such tools and appliances, and use ordinary care in keeping them in reasonably safe condition, but he owes no duty to the employee of inspecting simple tools where the defects are necessarily obvious.2. Same--Defects In Tools--Knowledge of Defects.
Where a simple tool becomes defective, and the master had actual notice of such defect, and the servant injured had no knowledge of such defect, and injury results from the use of such tool by a fellow servant, the master is liable.
3. Same -- Tools and Appliances -- Negligence of Master.
H. was injured by the head of a steel maul flying off the handle as it was being used by a fellow workman. This workman knew of the defect in the maul and had notified the foreman of said employees, whose duty it was to repair defective tools. H., who was not using or holding the tool, had no knowledge of the defect. Held, notice to the foreman was notice to the master, and the master was negligent in the breach of a positive duty, that of repairing a known defect.
4. Same--Assumed Risk--Negligence of Master.
H., a member of a bridge gang, impliedly assumed the ordinary risks incident to his employment, among which was such accident as a maul flying from its handle and striking him, but did not assume any risk of the master's neglect or breach of duty to repair a known defect.
5. Trial -- Instructions -- Construction as a Whole.
Where the trial court generally instructed the jury in plain and simple language defining the issues made by the pleadings, and the law applicable to the facts as proven in the trial error predicated upon definitions of legal terms, correct as far as the definitions went, but incomplete, held harmless.
Error from District Court, Okfuskee County; John Caruthers, Judge.
Action by George Holcombe against the Ft. Smith & Western Railroad Company. Judgment for plaintiff, and defendant brings error. Affirmed.
Warner & Warner, for plaintiff in error.
W. N. Maben, for defendant in error.
¶1 For convenience the parties hereto will be designated as they appeared in the trial court, plaintiff and defendant, respectively. In this case George Holcombe brought suit for personal injuries alleged to have been received by him while working as a member of a bridge gang and as a servant of the defendant, the Ft. Smith & Western Railroad Company. The injury is alleged to have occurred by reason of a maul flying off the handle while being used by a fellow servant and striking him in the head, and he alleges that the defective condition was known to the foreman of the bridge gang and to the fellow servant using the same, and was unknown to him. The defendant answers by a general denial, alleging contributory negligence, and that plaintiff assumed the risk as incident to his employment. Upon trial to a jury a verdict was rendered for plaintiff in the sum of $ 1,000, upon which judgment was rendered, and to reverse this judgment the case is brought here by petition in error for review.
¶2 The defendant presents its assignments of error in four propositions, viz:
First. The case at bar: is one to be governed solely by the federal laws and decisions. This proposition is apparently conceded in so far as the federal courts have decided the question presented in this case, and therefore will not be discussed. St. Louis & S. F. R. Co. v. Snowden, 48 Okla. 115, 149 P. 1083; Railway v. Lenahan, 39 Okla. 283, 135 P. 383; Railway v. Hesterly, 228 U.S. 702, 33 S. Ct. 703, 57 L. Ed. 1031; Roberts, Inj. Int. Em. secs. 1 and 7.
¶3 Defendant urges that the demurrer to plaintiff's evidence and its request for a peremptory instruction should have been sustained: (a) Because no negligence was proven; (b) Because plaintiff assumed the risk of receiving the injury as one that was incident to his employment.
¶4 The general rule is well established that it is the duty of the master to exercise ordinary care to provide reasonably safe tools and appliances for his servants. This duty applies alike to simple and complicated tools. However, the law does not impose the same obligations with reference to the two classes of tools. The master must inspect the complicated tools and appliances from time to time and use ordinary care and prudence in keeping them in a reasonably safe condition. The master owes no duty of inspection of simple tools, for the reason that it is assumed that there is an equality of knowledge and ability on the part of the master and servant to discover such defects, and in most cases it is held that the servant who uses the tools has the better opportunity of discovering the defects. C., R. I. & P. Ry. Co. v. Lillard, 42 Okla. 109, 141 P. 8, and cases therein cited.
¶5 There is, however, an exception to the rule that the master is not liable for injuries from the use of simple tools selected with ordinary care. When a simple tool becomes defective, and the master has actual notice of such defect, and the servant injured has no knowledge of the defect, the master is liable for exposing the servant to a peril unknown to him and must respond in damages.
¶6 26 Cyc. at page 1142, lays down this rule:
¶7 In the footnote, among other cases, reference is made to the case of Savannah R. Co. v. Pughsley, 113 Ga. 1012, 39 S.E. 473, which holds that where there is evidence that a fellow servant of the plaintiff was furnished with a defective tool by the master, with full notice of the defect, and that, by the use of the tool by the fellow servant, plaintiff, who had no notice of the defect, was injured, a verdict finding the master liable will be sustained.
¶8 In the case of Stork v. Cooperage Co., 127 Wis. 318, 106 N.W. 841, 7 Ann. Cas. 339, it is held that the rule that the master is not liable for defects in simple tools which cause injury has no application where the master has actual knowledge of such defects and the servant has none. Noble v. Bessemer S. Co., 127 Mich. 103, 86 N.W. 520, 54 L.R.A. 456, 89 Am. St. Rep. 461.
¶9 In this case the undisputed evidence shows that Bowers was foreman of the bridge gang, that Conrey, Todd, and Farmer were working on a drift bolt under a bridge, or culvert, using a sledge or maul with a wooden handle, which maul had a steel head weighing about eight pounds; that the plaintiff, engaged in work as one of the members of said gang, was passing near where Farmer was striking the bolt in clearing away the debris, which was a part of his duty, when the maul slipped from its handle and struck plaintiff in the head. One of the men, prior to the injury, while using the maul notified the foreman of its unsafe condition and asked to be allowed to fix it; but the foreman refused to allow the same to be repaired, and shortly thereafter plaintiff was injured. Plaintiff did not know of the dangerous or loosened condition of the handle of the maul, and had not been using it. The witness Conrey testified as follows (page 44, case-made):
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¶10 Mr. Bowers on his cross-examination testified about this matter as follows:
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