Lehman v. Chi., St. P., M. & O. Ry. Co.

• Decision Date: 26 October 1909
• Citation: 122 N.W. 1059,140 Wis. 497
• Court: Wisconsin Supreme Court
• Parties: LEHMAN v. CHICAGO, ST. P., M. & O. RY. CO.

140 Wis. 497

122 N.W. 1059

LEHMAN

v.CHICAGO, ST. P., M. & O. RY. CO.

Supreme Court of Wisconsin.

Oct. 26, 1909.

Appeal from Circuit Court, Chippewa County; A. J. Vinje, Judge.

Action by F. W. Lehman against the Chicago, St. Paul, Minneapolis & Omaha Railway Company. Judgment for defendant, and plaintiff appeals. Affirmed.

Among other references upon the part of the appellant were the following: Boelter v. Ross L. Co., 103 Wis. 324, 79 N. W. 243;Stork v. Cooperage Company, 127 Wis. 318, 106 N. W. 841;Dowd v. Railway Co., 84 Wis. 105, 54 N. W. 24, 20 L. R. A. 527, 36 Am. St. Rep. 917;Hardt v. Railway Co., 130 Wis. 512, 110 N. W. 427;Polaski v. Coal Co., 134 Wis. 259, 114 N. W. 437, 14 L. R. A. (N. S.) 952;Horn v. Box Company, 123 Wis. 399, 101 N. W. 935;Mauch v. Hartford, 112 Wis. 40, 87 N. W. 816;Ruscher v. Stanley, 120 Wis. 380, 98 N. W. 223;Hocking v. Windsor Spring Co., 125 Wis. 575, 104 N. W. 705; Zazdzeweski v. Barker, 131 Wis. 494, 111 N. W. 689, 120 Am. St. Rep. 1059;Bandekow v. C., B. & Q. Ry. Co., 136 Wis. 341, 117 N. W. 812;Bloor v. Delafield, 69 Wis. 273, 34 N. W. 115;Anderson v. Brass Co., 127 Wis. 273, 106 N. W. 1077;Leque v. Madison, etc., 133 Wis. 547, 113 N. W. 946;Clemons v. Railway Co., 137 Wis. 387, 119 N. W. 102;Olwell v. Skobis, 126 Wis. 308, 105 N. W. 777.

Among other references upon the part of the respondent were the following: Poluckie v. Wegenke, 137 Wis. 433, 119 N. W. 188;Hyer v. Janesville, 101 Wis. 371, 77 N. W. 729;Klatt v. N. C. Foster L. Co., 92 Wis. 622, 66 N. W. 791;Holt v. Railroad Co., 94 Wis. 596, 69 N. W. 352;Kucera v. Merrill L. Co., 91 Wis. 637, 65 N. W. 374;Raffke v. Patten Paper Co., 136 Wis. 535, 117 N. W. 1004;Nass v. Schulz, 105 Wis. 146, 81 N. W. 133;Dean v. Railway Co., 43 Wis. 305;Goltz v. Railway Co., 76 Wis. 136, 44 N. W. 752;McKeon v. Railway Co., 94 Wis. 477, 69 N. W. 175, 35 L. R. A. 252, 59 Am. St. Rep. 910; Montanye v. N. M. Co., 127 Wis. 22, 105 N. W. 1043.W. H. & T. F. Frawley, for appellant.

Bundy & Wilcox and James B. Sheean, for respondent.

TIMLIN, J.

The complaint in this case averred that the plaintiff was a locomotive fireman in the employment of defendant. In the performance of such duty he was required to use a pick or hammer for the purpose of breaking the larger pieces of coal preparatory to putting the same in the fire box. In striking the coal with this pick or hammer a piece of coal flew into his eye, and injured it. The pick or hammer was defective, in that the outer edges of its face had become worn and rounded from long continued use. The defendant failed in its duty to furnish the plaintiff reasonably safe tools and appliances. The jury found that the pick was in a defective condition, and this defective condition was the cause of the plaintiff's injury, but that the plaintiff was guilty of a want of ordinary care which contributed to his injury.

Various errors are assigned by appellant, but, the verdict being in appellant's favor on all points submitted to the jury except his contributory negligence, only those alleged errors affecting the verdict and relating to contributory negligence or bearing upon that issue can be considered prejudicial to the appellant. The accident occurred on March 7, 1907, prior to the time at which chapter 254, Laws 1907, went into effect. The pick or hammer is an implement having a wooden handle about three feet long inserted in an iron cross-head, having a hammer face on one end and a pick point on the other end, and is in all respects a simple tool within the rule of Meyer v. Ladewig, 130 Wis. 566, 110 N. W. 419, 13 L. R. A. (N. S.) 684, and cases there cited. The hammer end of this pick originally presented a flat surface which had become battered and convex by use. Were the question properly before us, we would not be inclined to hold that the implement was unsafe or defective in this condition. But, the jury having found that the coal pick was in a defective condition at the time of the accident, the case will be decided upon the hypothesis that this finding is a verity. The third question of the special verdict finding the plaintiff guilty of contributory negligence must bar his recovery unless it ought to be set aside, and the answer of the jury changed from “yes” to “no” because of lack of evidence to support such finding.

From the plaintiff's evidence it appears that at the time of the injury he was busy shoveling coal, and in so doing encountered a very large lump of coal which he tried to move with his shovel. “That was the first time I thought of a coal pick, so I reached up to the usual place where coal picks are kept, right up handy on the right side of the engine--I always carry mine--used to. I reached up there, and took the coal pick, and got hold of the coal pick, and I struck the coal, and was struck in the eye. I reached up on the right-hand side of the engine and got the pick, and stepped down and struck it, and tried to break it so it would all come out. It could not come out the way it was. It was too big; too long; and the first blow I struck it flew up and struck me in the eye.” He had not prior to that time ascertained whether there was a pick on the engine or not, evidently presuming that the engine carried a pick as usual, and he further testified upon cross-examination that he did not make any examination of the pick before he struck the coal, did not look at it at all, did not look to see what kind of a face it had on it, or whether it was a new pick or an old pick, just caught it up by the handle and took a swing at the coal. He was an experienced fireman, and claimed to know that picks of this kind so battered as to present a convex surface on the hammer end were apt to cause coal splinters to fly, but did not know that the pick in question was in this condition, and did not look at the pick for the purpose of ascertaining. The question of the contributory negligence of one injured by the negligence of another is usually a question of fact. The question whether one seizing a pick, a hammer, or an ax, and striking a blow with it without even glancing at the condition of the implement, is in the exercise of ordinary care, seems to be peculiarly a question of fact for the jury. The more general rules that there is no duty on the part of the servant to inspect machinery and appliances furnished by the master, and that the servant may rely upon the master to furnish safe tools and appliances, do not at all conflict with this conclusion. Inspection means a somewhat careful or critical examination. Armour v. Brazeau, 191 Ill. 117, 60 N. E. 904;Texas & Pac. R. Co. v. Allen, 114 Fed. 177, 52 C. C. A. 133. Notwithstanding the servant may rely upon the master discharging his duty to furnish safe tools and appliances and is not called upon to inspect them before using, still, if as a matter of fact ordinarily prudent and careful persons are used to glance at the implement with which they strike before striking a blow under the circumstances in this case, and the plaintiff neglected to do so, and such neglect contributed to cause the injury in question, he may well be found guilty of contributory negligence. It is said that contributory negligence must proximately...