McDonald v. Tandard Oil Co.

• Decision Date: 22 June 1903
• Parties: McDONALD v. TANDARD OIL CO.
• Court: New Jersey Supreme Court

55 A. 289

69 N.J.L. 445

McDONALD

v. TANDARD OIL CO.

Court of Errors and Appeals of New Jersey.

June 22, 1903.

(Syllabus by the Court.)

Error to Supreme Court.

Action by Thomas McDonald against the Standard Oil Company. Judgment for de-fondant, and plaintiff brings error. Affirmed.

This was an action of tort, brought by the plaintiff against the defendant corporation. The plaintiff's declaration alleged that the defendant was the possessor of certain tanks, made of iron or steel plates fastened to gether with rivets; that the plaintiff was a general workman or laborer in the defendant's employ; that the particular duty assigned to him was to hold a cold-chisel upon the edges of the rivets while another workman struck the chisel with a hammer, so as to cut the heads from the rivets and separate the plates; that the plaintiff was without knowledge of the dangers of the employment, and was unacquainted with the necessary tools and necessary shields to be used therein; that the defendant did not provide suitable tools or chisels, or any shield whatsoever to protect the plaintiff, and did not warn him of the dangers of the business, by means whereof, while the plaintiff was at work on a certain day, a piece of the tank or of a rivet was chipped off, and thrown with great force against the plaintiff's left eye, and thus the sight thereof was permanently destroyed, and the sight of the right eye endangered, which injuries were sustained by the plaintiff solely through the defendant's negligence. The defendant pleaded not guilty of the supposed grievances, and the issue joined thereupon was sent down to the Hudson circuit for trial.

The plaintiff's own testimony at the trial showed that the plaintiff was a laborer, never having learned any trade; that about the middle of August, 1900, he, with other men, was employed by the defendant to take down certain metal tanks at Bayonne, which had been injured by an oil fire; that a foreman gave them tools, and showed them what to do; that the men worked in pairs, and to the plaintiff and his companion were given a sledge hammer and a "set," described as a chisel with a blade about six inches wide and a handle about a foot long; that the foreman showed the plaintiff how to hold and use the set; that he and his companion worked on the side of a tank between three and four weeks, and then, a little more than a week, on the bottom of a tank, and during all this time the plaintiff never saw or beard of a "stopper" (a primitive contrivance to keep chips from flying), but he observed that the pieces of rivets flew according to the way in which the set was held and the sledge was struck (that is to say, in the general line of the blow); and that on Friday, September 14th, while he was holding the set against a bottom rivet, and his associate was striking, a "shave of the rivet" flew into his left eye, causing him to undergo 11 weeks of hospital treatment, great physical pain, and the ultimate loss of the eye. From other witnesses, sworn by the plaintiff, it appeared, according to the experience of a practical boiler maker, that the cutting of iron or steel with a chisel is dangerous; that, in shops in which he had warked, swabs (little sticks with rags or cotton waste about them) were held in front of the rivets, when cut, to prevent them from hitting anybody, that chipping is common, and that it is hard to tell in what direction a chip might go, for, as he said, "yon might hold the set a little eater-cornered, and it would go to me, or hold it this way, and it would go to you"; and, according to the observation and experience of a professor of mechanical engineering, that, in cutting rivets, fragments fly off in a constant bombardment; that this fact is discoverable after the first few blows; and that it is customary to require students to protect their faces by holding over the hand and over the chisel a handkerchief, or something like it.

At the close of the plaintiff's proofs, the trial justice took the case from the jury, and ordered a nonsuit. This direction is the subject of the only assignment of error.

F. E. Kellogg, D. Emery, and Flaacke & Ryan, for plaintiff in error.

Charles W. Fullner, for defendant in error.

The opinion of the court (the foregoing statement having been made) was delivered by GREEN, J.

The facts in the case, and the arguments made thereon, bring to view two legal principles which are fully recognized in the jurisprudence of this state:

1. The Master's Undertaking. Under the contract of employment, it becomes the master's duty to use reasonable care to provide a proper and safe place in which the servant may work, to furnish suitable tools and implements with which he may work, to inspect and repair the apparatus at reasonable intervals and with ordinary prudence, and to select and employ competent workmen. This rule of duty was stated at least as early as the case of Harrison v. Central Railroad Co., 31 N. J. Law, 293 (1865), and in this form: "An employer contracts with his employs to use reasonable diligence to protect him from unnecessary risks, and, for negligence or want of care, he will be answerable for all the damages which may ensue." Page 300. In the form herein set forth, its several parts may be drawn from the case just cited. Maher v. Thropp, 59 N. J. Law, 186, 188, 35 Atl. 1037; Atz, Adm'r, v. Newark Lime & Cement Co., 59 N. J. Law, 41, 45, 34 Atl. 980; McAndrews v. Burns, 39 N. J. Law, 117, 119. This is settled law in this court. Maher v. Thropp, supra; The Steamship Co. v. Ingebregsten, Adm'x, 57 N. T. Law, 400, 31 Atl. 619; West. Union Tel. Co. v. McMullen, 58 N. J. Law, 155, 33 Atl. 384, 32 L. R. A. 351; and later cases, including Campbell v. Gillespie Co. (decided at the present term) 55 Atl. 276. The rule has also been negatively defined in this court thus: The master "is not bound to adopt the latest improvements in machinery. Neither is he liable for an accident which would not have occurred if such improvements had been adopted. He is not required to furnish...