Koschman v. Ash

• Decision Date: 15 June 1906
• Citation: 98 Minn. 312,108 N.W. 514
• Parties: KOSCHMAN v. ASH.
• Court: Minnesota Supreme Court

98 Minn. 312

108 N.W. 514

KOSCHMAN

v.ASH.

Supreme Court of Minnesota.

June 15, 1906.

Appeal from District Court, St. Louis County; Homer B. Dibell, Judge.

Action by Julius Koschman against Charles R. Ash. Verdict for plaintiff, and from an order denying a motion for judgment notwithstanding the verdict, or a new trial, defendant appeals. Reversed, with directions to enter judgment for defendant.

Syllabus by the Court

No duty rest upon an employer to inspect simple and common tools to discover defects which arise from the ordinary use of such instruments.

The rule applied to a common sledge or hammer, which was purchased by the employer from a wholesale hardware dealer and which was in good condition when delivered to the employé. Miller & Clapp, for appellant.

John Jenswold, for respondent.

ELLIOTT, J.

The respondent, Koschman, was injured while in the employ of the appellant, Ash, and recovered a verdict in the court below. The appeal is from an order of the trial court denying the defendant's motion for judgment notwithstanding the verdict or for a new trial.

In 1903 Ash was operating a sawmill in Virginia, Minn. Koschman was, and for some months had been, in his employ as a blacksmith, working in a shop operated in connection with the mill. At the time of the accident, July 17, 1903, Koschman was engaged with another employé by the name of Olson in cutting bolts from a rod of iron. Koschman placed the bolt on a beveled-edged instrument which rested upon an anvil and held a cold chisel on the upper edge of the bolt. Olson then struck the chisel with a sledge or hammer. After two or three strokes the bolt was cut almost through. Koschman then laid the end of the bolt across the anvil and Olson gave the tip end a light tap with the hammer. When this was done, a piece of steel flew from the end of the hammer and penetrated Koschman's eye. The complaint alleged that defendant did carelessly and negligently fail and omit ‘to furnish for plaintiff's use a suitable and proper hammer to do such work, and in like manner did carelessly and negligently furnish the aforesaid hammer so used for the said use, which hammer was defective and not reasonably safe for use, and though of steel its face or head had not been properly, equally and evenly tempered, and the same was not smooth, but had, for a long time prior thereto, been subject to hard usage, and had been worn away, battered, and made unsafe for further use, and become indented and full of thin splinters, chips, scales, or fragments which were loose, and pieces of steel therein were liable at any time, by a blow of said hammer, to be broken off and to fly therefrom and endanger persons who were present and engaged in and about its use.’ It further alleged that for a period of more than four weeks prior to the time when the plaintiff was injured, the hammer had been in an unsafe and dangerous condition of which fact the defendant had full notice and knowledge, but nevertheless did carelessly and negligently furnish the same and require the plaintiff and his assistant to use the same in their work. The plaintiff's case rests upon the alleged truth of these allegations.

The appellant makes numerous assignments of error, but in view of our conclusion upon the question of the defendant's negligence, it is only necessary to consider one. The sledge or hammer was purchased in the open market from a wholesale hardware dealer, and when furnished to Koschman it was new and in good condition. It is admitted that Ash cannot be charged with negligence in originally furnishing Koschman with a defective tool, but it is contended that it was his duty, not only to furnish to the employé a reasonably safe instrument with which to work, but after having done this to inspect the same while it was being used by the employé and remedy any defects which might be found to exist. The jury were instructed that if the defendant was chargeable ‘with negligence at all, it must be because he kept it in use without repairing, after it became in an unsafe condition for its intended use, knowing it to be in such a condition or charged with such knowledge.’ When the appliances or machinery furnished employés are at all complicated in character or construction, the employer is charged with the duty of making such reasonable inspection as is necessary to detect defects. But the master is under no duty to inspect simple or common tools, or to discover or remedy defects arising necessarily from the ordinary use of such instruments. Miller v. Erie Ry. Co., 21 App. Div. 45,47 N. Y. Supp. 285 (a pushpole by which an engine on one track was able to move a car on an adjoining track); Marsh v. Chickering, 101 N. Y. 396, 5 N. E. 56 (a ladder); Cahill v. Hilton, 106 N. Y. 512, 518,13 N. E. 339 (a ladder); Webster Mfg. Co. v. Nisbett, 205 Ill. 273, 68 N. E. 936 (a hammer); Meador v. Railway Co., 138 Ind. 290, 37 N. E. 721,46 Am. St. Rep. 384 (a ladder); Wachsmuth v. Electric Crane Co., 118 Mich. 275, 76 N. W. 497 (a snaphammer); Dompier v. Lewis, 131 Mich. 144, 91 N. W. 152 (a hammer); O'Brien v. Railway Co. (Tex. Civ. App.) 82 S. W. 319 (a wrench); Railway Co. v. Larkin (Tex. Sup.) 82 S. W. 1026 (a defective globe on a lantern); Lynn v. Sugar Ref. Co. (Iowa) 104 N. W. 577 (a hammer of soft steel...