Herricks v. Chicago & E.I.R. Co.

• Decision Date: 20 February 1913
• Court: Illinois Supreme Court
• Parties: HERRICKS v. CHICAGO & E. I. R. CO.

257 Ill. 264

100 N.E. 897

HERRICKS

v.CHICAGO & E. I. R. CO.

Supreme Court of Illinois.

Feb. 20, 1913.

Error to Appellate Court, Third District, on Appeal from Circuit Court, Vermilion County; E. R. E. Kimbrough, Judge.

Action by Clarence Herricks against the Chicago & Eastern Illinois Railroad Company. A judgment for plaintiff was affirmed by the Appellate Court, Thire District, and defendant brings certiorari. Reversed and remanded.H. M. Steely and H. M. Steely, Jr., both of Danville, for plaintiff in error.

Action & Acton, of Danville, for defendant in error.

CARTWRIGHT, J.

The defendant in error, Clarence Herricks, suing by his next friend, recovered a judgment in the circuit court of Vermilion county against the plaintiff in error, the Chicago & Eastern Illinois Railroad Company, for damages resulting from the loss of an eye while employed by plaintiff in error as a helper for a blacksmith. The Appellate Court for the Third District affirmed the judgment, and we granted a writ of certiorari for the purpose of reviewing the record.

The defendant asked the court to direct a verdict of not guilty, which the court refused to do; and the refusal raises the question whether there was any evidence fairly tending to prove the cause of action alleged, which was that the set hammer used by the plaintiff and the blacksmith, with whom he was a helper, which had become battered by use, had been repaired by the defendant in a negligent manner, and that, as a consequence of the defendant's negligence, a piece of the hammer flew off, when it was struck by the plaintiff, and caused the injury. A set hammer has a fact on each end, and is used to square angles by setting it on iron at the angle and striking it with a sledge. The set hammer in question had gradually become battered in use, so that the edges of the upper face had curled over and formed burrs around the top, a quarter of an inch deep or thereabouts. The blacksmiths in the shop repaired their own tools, and John J. Higgins, the blacksmith with whom the plaintiff worked, repaired the hammer. There was no controversy concerning the method of making the repair necessary to make the hammer safe for use. Eleven blacksmiths of considerable experience were examined as witnesses, four by the plaintiff, and seven by the defendant. While they differed somewhat as to minor details, they agreed that it was necessary to cut off the hammer below where the burrs had formed, because the broken and separated parts of the steel could not be welded. The only material controversy of fact was whether the hammer had been cut off to a square face below where the burrs had formed, and as to that fact there were only two witnesses, and they contradicted each other. The plaintiff testified that Higgins heated the hammer and placed it on the anvil; that the plaintiff mashed the burrs down with a hammer, and then Higgins took it over to the big steam hammer and mashed it down a little more, and then smoothed it up; and that nothing more was done and the burrs were not cut off. Higgins, who had been a blacksmith for 27 years, testified that he heated the hammer and put it on the anvil; that the plaintiff did the striking and dressed it down; that Higgins then cut off the hammer below the burrs and heated it again and rounded the corners off; and that he did not take it to the big steam hammer. According to his testimony, the hammer was repaired in a proper manner so as to make it safe for use by first hammering the burrs down and then cutting the face off back far enough to cut off the burrs; and the theory of the defendant was that the small piece of steel was caused to fly off by a glancing blow by the plaintiff. The hammer was repaired about 7:30 in the morning, and was used until 11:45, when the accident happened. There was no direct evidence for the defendant as to the kind of blow that was struck at that time; but the evidence was that a set hammer must be struck with a fair, square blow of the sledge, and that the plaintiff was in the habit of striking glancing blows, and had been frequently cautioned not to strike in that way. He testified that the blow at this time was square and not glancing.

[1][2][3] The ground upon which it is insisted that the court erred in refusing to direct a verdict is that the hammer was a simple tool, and as to such tools the master assumes no liability. It is the law that the master is not liable for a defect in a simple, ordinary tool procured and provided in the ordinary way. It is one of the essential facts, to be proved by a servant seeking to recover on account of a defective tool or appliance, that he did not know of the defect and had not equal means with the master of knowing of it (Goldie v. Werner, 151 Ill. 551, 38 N. E. 95); and, as to a simple tool, the opportunities of the servant for knowing of the defect are at least equal to those of the master. If the tool is procured by the master from another, and there is a latent defect, neither one would know of it, and the master would not be liable; and, if there is a patent defect, the servant has as good an opportunity to know of its existence as the master. This rule includes all common tools and appliances, such as hammers, wrenches, axes, hoes, spades, and ladders. Webster Manf. Co. v. Nisbett, 205 Ill. 273, 68 N. E. 936;Lynn v. Glucose Sugar Refining Co., 128 Iowa, 501, 104 N. W. 577;Marsh v. Chickering, 101 N. Y. 396, 5 N. E. 56;Stork v. Stolper Cooperage Co., 127 Wis. 318,106 N. E. 841,7 Ann. Cas. 339. Neither is the master bound to inspect simple tools furnished to his servant to discover whether defects appear in the course of their use. Dompier v. Lewis, 131 Mich. 144, 91 N. W. 152;Wachsmuth v. Shaw Electric Crane Co., 118 Mich. 275, 76 N. W. 497;Meyer v. Ladewig, 130 Wis. 566, 110 N. W. 419,13...