McAllister v. Rocky Fork Coal Co.

• Decision Date: 01 December 1904
• Citation: McAllister v. Rocky Fork Coal Co., 31 Mont. 359, 78 P. 595 (Mont. 1904)
• Parties: McALLISTER v. ROCKY FORK COAL CO. OF MONTANA.
• Court: Montana Supreme Court

78 P. 595

31 Mont. 359

McALLISTER v. ROCKY FORK COAL CO. OF MONTANA.

Supreme Court of Montana

December 1, 1904

Commissioners' Opinion. Appeal from District Court, Carbon County; Frank Henry, Judge.

Action bye James H. McAllister against the Rocky Fork Coal Company of Montana. From a judgment for plaintiff, and from an order overruling a motion for a new trial, defendant appeals. Reversed.

Wm Wallace, Jr., for appellant.

Geo. W Pierson, for respondent.

CLAYBERG C. C.

Appeal from judgment against defendant, and from an order overruling a motion for a new trial. The action was to recover damages for a personal injury arising from the alleged negligence of defendant. The record discloses that plaintiff was employed at the time of the accident in operating a shearing machine in defendant's coal mine; that there was supplied to operators of these machines a pump jack for raising the machines when such raising was required or necessary; that this pump jack was intended to be operated by means of a handle about 27 inches long, fitting closely in the socket of the pump jack; that plaintiff used a sprag in such operation which is about 17 inches long, and pointed at both ends, and which was intended for use in blocking the wheels of cars that the teeth or cogs upon the upright bar and upon the sprockets of the pump jack used by plaintiff were so worn that, in raising the shearing machine with this pump jack, the teeth or cogs slipped past each other, and the weight of the shearing machine, falling upon the upright bar, threw the sprag upward, so that it struck plaintiff in the eye, destroying the same. The negligence alleged, and upon which the judgment is based, is want of reasonable care on the part of defendant in furnishing the plaintiff this pump jack, which it is claimed was defective. It is alleged in the complaint that the defendant knew that it was out of repair, and that the plaintiff did not know it, and could not have ascertained that fact by the exercise of reasonable diligence. The answer denies all the material allegations of the complaint, and alleges as a defense contributory negligence of plaintiff, and that he assumed the risk of injury when he was employed by the defendant in the capacity of machine runner. Plaintiff testified that he had no knowledge of the worn condition of the pump jack, but testimony was given by defendant's witnesses, and also drawn out of some of plaintiff's witnesses on cross-examination, that the condition of the jack could have been ascertained by merely lifting the upright bar so as to expose the notches or cogs thereon, and by pushing the handle of the machine down so as to expose the upper sprocket, and by lifting the handle so as to expose the lower sprocket. Therefore defendant claims that plaintiff should be charged with knowledge of its condition. Defendant also claims that a pump jack is a common tool, which needs no inspection by the defendant, and that the plaintiff must have known of its condition at the time he used it, and therefore assumed the risk of injury from such use. Defendant further insists that the jack was not intended to be operated with a sprag, but with a handle made for that purpose, and that, if no handle was with a sprag, but with plaintiff took it for use, it was his duty to have procured one prior to the use of the jack, and he is guilty of contributory negligence which bars a recovery.

The court instructed the jury with reference to defendant's liability on account of the defective pump jack as follows:

"There is no duty, even as to complicated machinery, to see to it at all times that it is in perfect condition, but only to use reasonable care in its inspection. And as to defects that can be seen as readily by the person working with the implement as by an inspector specially appointed by the master, it is equally the duty of the workman using the tool or implement to know of the defect, if any there is. So as to the pump jack. If its slipping was due to the wearing of the teeth or ratchets, and this worn condition could have been discovered by an examination of the jack, then, in placing the plaintiff to work with such a pump jack, even though it was liable to slip, defendant would not be violating any duty owed plaintiff, and he could not recover in this action, unless you find by a preponderance of the evidence that the condition of the pump jack could not have been seen by raising the lifting bar and examining its notches, and the possibility of its slipping could not have been thus discovered. The court instructs you it was the duty of the plaintiff to make such examination, and if by doing so he might have discovered the

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