Hefferen v. N. Pac. R. Co.

• Decision Date: 02 March 1891
• Citation: 48 N.W. 1,45 Minn. 471
• Parties: HEFFEREN v NORTHERN PAC. R. CO., (TWO CASES.)
• Court: Minnesota Supreme Court

45 Minn. 471

48 N.W. 1

HEFFERENvNORTHERN PAC. R. CO., (TWO CASES.)¹

Supreme Court of Minnesota.

March 2, 1891.

(Syllabus by the Court.)

1. A master who provides and keeps proper tools for the use of his servants, whose duty it is to select such as they require for their work, is not in general responsible if a servant voluntarily uses a tool which has become obviously defective and unfit for use, and is injured by reason of such defect.

2. This principle applied in respect to a side-set,-a tool for cutting iron,-the power being applied to it by means of a heavy hammer, with which the side-set is struck by one person while another holds the side-set. The tool had become so battered from use that fragments were obviously liable to be broken off by a blow of the hammer. This did occur, the detached fragment putting out the eye of the servant holding the side-set. Held, that the master was not responsible, although the servant was only 17 years of age.

3. A servant, although a minor, assumes the risk of the negligence of fellow-servants as a hazard incident to his service.

4. The court having ruled upon the sufficiency of the evidence on a motion that a verdict be directed for the defendant, the sufficiency of the evidence to sustain the verdict may be reviewed on an appeal from the judgment, although no motion for a new trial had been made.

Appeal from district court, Crow Wing county; MILLS, Judge.

John C. Bullitt, Jr., for appellant.

W. H. Adams, (J. B. Douglas and S. L. Pattee, of counsel,) for respondents.

DICKINSON, J.

These two actions are for the recovery by a father (Patrick) and by his minor son (Thomas) of damages for an injury suffered by the son while engaged as a servant of the defendant in its shops at Brainerd. The father seeks to recover for loss of service of his son and for expenses to which he was subjected by reason of the injury; the son, for the personal injury to himself. The facts in the two cases are substantially the same, and both may be considered together. When the accident occurred (December, 1886) Thomas was 17 years old. He had been for about two years and a half at work for the defendant,-at first in the building of the shops, and after that in the shops. His work in the shops had been of a somewhat miscellaneous character, including the cleaning of machinery, working in blacksmith and boiler shops, operating a steam-hammer, pointing bolts, heating rivets, and, as he says, doing whatever he was directed to do. His father was a machinist in the same shop. On the occasion under consideration the foreman had ordered Thomas to go to the engine-house to work with one Torkleson cutting off the heads of rivets on the tank of a locomotive. He found Torkleson already there, with the tools which they used. These consisted of a hammer with what is called a “side-set.” This is a tool designed to be used for such purposes. It is made of steel, has a cutting edge, and the opposite side, which may be designated the “head,” is formed for and intended to receive the blow of a hammer. A handle is fitted to it, by which it is held by one person, with the cutting edge against the rivet or substance to be cut, while another strikes the head of the side-set with a hammer. On this occasion Thomas at first used the hammer, while Torkleson held the side-set. Then they changed, and, while Thomas was holding the side-set and Torkleson using the hammer upon it, a thin scale of steel broke from the head of the side-set as the hammer fell upon it, and was driven into the plaintiff's eye. The cases show no cause of action unless it be negligence on the part of the defendant in respect to the condition of the side-set. It does not appear that Torkleson was not a competent, skillful workman; and even if, on this occasion, he was negligent, that would not justify a recovery. One of the ordinary risks incident to such service is that of the negligence of fellow-servants, and this risk a servant takes upon himself as incident to his service, even though he be a minor. King v. Railroad Co., 9 Cush. 112;Curran v. Manufacturing Co., 130 Mass. 374; Brown v. Maxwell, 6 Hill, 592;Gartland v. Railway Co., 67 Ill. 498;Railway Co. v. Harney, 28 Ind. 28; Railroad Co. v. Hammersley, 28 Ind. 371;Fisk v. Railroad Co., 72 Cal. 38,13 Pac. Rep. 144. Nor is there ground for claiming that the plaintiff was required to do work of a more dangerous character than that which was within the scope of the service for which he was employed, or such as was unsuited to his years and experience.The evidence tended to show that the head of this side-set had become much worn and battered, the pounded surface having become rounded over and a ragged edge formed; and that pieces of the metal were more likely to be broken from it than would be the case if it were not in that condition, although this is liable also to occur even with a tool not thus worn. This condition of the tool was the ordinary result of use. The uncontradicted evidence showed that the defendant kept a tool-repairer in the shops, whose business it was to repair the tools; that the defendant kept a full supply of tools of this kind in a closet and scattered about the shop; that when a workman was to use a tool he would get it for himself, selecting such as he required; and that, when a workman found that a tool needed to be repaired, he would take it to the tool-repairer for that purpose. There was nothing to show that in selecting tools for use the workmen had not opportunity to act deliberately, and to select such as might be fit for use in the work to be done.

Under the...