Hunt v. Hurst

• Decision Date: 01 March 1926
• Docket Number: 207
• Citation: 280 S.W. 652,170 Ark. 644
• Parties: HUNT v. HURST
• Court: Arkansas Supreme Court

280 S.W. 652

170 Ark. 644

HUNT v. HURST

No. 207

Supreme Court of Arkansas

March 1, 1926

Appeal from Ouachita Circuit Court; L. S. Britt, Judge; affirmed.

Judgment affirmed.

T. J Gaughan, J. T. Sifford, J. E. Gaughan and E. E. Godwin, for appellant.

Jones Ragsdale & Matheny, Harry E. Meek and L. B. Smead, for appellee.

OPINION

SMITH, J.

Appellee was employed by appellant as a common laborer in constructing a derrick to be used in drilling for oil. He was what was known, in oil field parlance, as a "roustabout," it being his business to help do whatever was required to be done. He had worked in a similar capacity for several oil companies. One morning, about an hour after appellee commenced work, he was directed by his foreman to take a hatchet, which was lying on the derrick floor, and nail a brace on the jack-post. Appellee picked up the hatchet and some twenty-penny nails, which were about five inches long, and got a piece of board 2x12, about a foot and a half long, for a brace, and started to nail the brace to the jack-post. He had driven one nail completely up in the brace, and started to drive another, and, as he struck the nail, something hit him in his left eye. The injury to his eye was very painful, and as a result of this injury the eye was later removed.

There was no other hatchet about the derrick, and appellee used it at the direct command of his foreman to drive the nail. The testimony shows that the hatchet had been used until it had become slightly "mushroomed," as the witnesses expressed it, on the face used in striking nails, but the face of the hatchet was dirty and covered with oil so that its condition would not be observable except upon inspection. Appellee had never used the hatchet before, and had been using it about a minute when he was injured. The defect in the hatchet had not therefore developed through his use of it. The foreman later inspected the hatchet, and found that a piece about as large as a match head had been recently broken off the face of the hatchet used in driving nails, and on further inspection the foreman discovered that the nail appellee was driving at the time of his injury was in good condition, and no part of the nail had been broken off.

Appellee recovered a judgment to compensate this injury, which is not complained of as being excessive, and this appeal is prosecuted to reverse that judgment.

The chief insistence for the reversal of the judgment is that a verdict should have been directed in appellant's favor, under the facts stated, for the reason that the hatchet was a tool of such simple construction that there was no duty of inspection. In other words, appellant invokes what is called the simple tool doctrine, and insists that, as applied to the facts in this case, there is no liability for appellee's injury.

In the case of Arnold v. Doniphan Lumber Co., 130 Ark. 486, 198 S.W. 117, we said: "This doctrine (simple tool), as such, has never had recognition by this court; yet the principles upon which that doctrine is based have been recognized in a number of decisions of this court. That is, the simplicity of a tool, and the skill or lack of it required in its use, have been treated as questions to be considered in determining the degree of care to be used by the master in the selection of such tools for the purposes of his servant, and of the directions and instructions which should be given the servant in its use."

A case very similar to the instant case is that of Chicago, R. I. & Pac. Ry. Co. v. Smith, 107 Ark. 512, 156 S.W. 166. The servant, who had there sued for an injury he had sustained, alleged that he was injured by the use of a hammer having a defective striking face, and it was there insisted on behalf of the master that the hammer was a simple instrument, which the master was not required to inspect, and that the verdict should, on that account, have been directed in the master's favor. In affirming the judgment which the servant recovered the court said: "There is no hard and fast rule that may be laid down as governing the liability of an employer for a defect in common tools. In view of this condition, we do not undertake to say what state of facts the rule of liability should embrace, and what state of facts it should not." After stating that the servant was not permitted to make his own choice of tools, the court further said: "It can not be said, as a question of law, that the defect in the face of the hammer was so open and obvious that they could have seen the defect by a glance or by such casual observation as it would be natural for plaintiff to have made * * *."

So here, while it is not disputed that the hatchet was a simple tool, it is...