Hul v. Great Northern Railway Company

• Decision Date: 23 October 1903
• Docket Number: 13,605 - (60)
• Citation: 96 N.W. 789,90 Minn. 329
• Parties: HENRY VANT HUL v. GREAT NORTHERN RAILWAY COMPANY
• Court: Minnesota Supreme Court

96 N.W. 789

90 Minn. 329

HENRY VANT HUL v. GREAT NORTHERN RAILWAY COMPANY

Nos. 13,605 - (60)

Supreme Court of Minnesota

October 23, 1903

Action in the district court for Ramsey county to recover $30,000 for personal injuries. The case was tried before Bunn, J and a jury, which rendered a verdict in favor of plaintiff for $14,400. From an order denying a motion for judgment notwithstanding the verdict or for a new trial, defendant appealed. Affirmed.

SYLLABUS

Defective Appliance -- Flogging Hammer.

A flogging hammer, used in a machine shop for striking chisels and similar instruments, when manufactured and furnished by the master, is an implement, within the rule requiring the master to furnish tools and appliances reasonably safe for the purpose used.

Question for Jury.

It was not error to submit to the jury the question whether, under all the circumstances, the workman receiving the injury ought to have known that the hammer was defective, and ought to have appreciated the danger, and that, where inspection was made by the master, the foreman had a right to presume the instrument was reasonably safe for the purpose, and that the jury might take into account the workman's age and experience, in determining whether he ought to have known or discovered the defects.

Expert Testimony.

The condition of the hammer, and the question of its suitability for the purpose, were not proper subjects for expert testimony.

Verdict.

The verdict was not excessive.

M. L Countryman, for appellant.

Sheehan & Keefe, for respondent.

OPINION

LEWIS, J.

Henry Vant Hul, a young man of eighteen years, was in the employ of appellant company as an apprentice in its boiler shops. Having been directed by the foreman in charge of the shops to go to work rounding up flues in the boiler of a certain engine, he did so, using a flogging hammer and steel pin; and while so engaged a small piece of steel broke off the face of the hammer when he struck the pin, and flew into respondent's left eye, destroying its sight, and seriously injuring the power of vision of the right eye. This action was commenced to recover damages, based upon the ground that appellant had been negligent in failing to properly inspect the hammer, and in furnishing respondent with a defective tool.

The trial court submitted the issues to the jury, by stating that it was admitted respondent was directed by the foreman to do the work, and that he was injured by a piece of steel flying from the hammer furnished him, and instructed the jury that it was the duty of the master to furnish tools reasonably safe for the purposes used; submitting to it the question whether in this instance the master had complied with this requirement. This part of the charge embodied the direction that the jury should take into consideration the condition of the hammer, and, from all the evidence, determine whether it was in a dangerous condition -- whether its defects if any, were of such character that a piece of steel might fly from it when used with ordinary care, or whether it was reasonably safe for use.

The court further charged the jury that if, from the evidence, they found that the inspector of tools gave respondent the hammer, then they should, from a consideration of all the circumstances, determine whether respondent ought to have known that the hammer was defective, and ought to have appreciated the danger. The jury were also instructed that, if they found the tool inspector furnished respondent the hammer, they should take into account that circumstance, in deciding whether respondent was excused from not discovering or knowing its defects; that where the master employs an agent or inspector to care for and inspect its tools, and an employee is given a tool by such inspector, the employee has a right to presume it to be in proper condition -- reasonably safe for use.

The court further charged the jury that respondent was not entitled to any consideration by reason of his minority; that he was old enough to be considered a man of ordinary intelligence and capacity; but that they might take into consideration his experience at such work -- his experience in boiler shops, with flogging hammers, or other hammers used around machinery -- in determining whether he ought to have known or discovered the defects in the hammer at the time he was using it. The assignments of error challenge the correctness of these instructions.

Appellant offered expert testimony to the effect that the hammer used by respondent at the time of his injury was not dangerous or improper for such purpose, and that it was safe and a proper tool. Error is assigned upon refusal of the court to permit the following question:

"I will ask you whether or not hammers in the condition that the hammer which the plaintiff used on that day -- hammers with checks on the face -- were in general use around the boiler repair shops at the time the plaintiff was hurt, and during the time he was employed there?"

A verdict of $14,400 was returned for respondent, and appellant appealed from an order denying a motion for judgment notwithstanding the verdict or for a new trial.

1. Was the flogging hammer a tool of that class of instruments within the general rule which requires the master to furnish the employee tools and instruments which are...