Mississippi Central Railroad Co. v. Bennett

• Citation: 71 So. 310,111 Miss. 163
• Court: Mississippi Supreme Court
• Decision Date: 10 April 1916
• Parties: MISSISSIPPI CENTRAL RAILROAD COMPANY v. BENNETT

71 So. 310

111 Miss. 163

MISSISSIPPI CENTRAL RAILROAD COMPANY v. BENNETT

Supreme Court of Mississippi

April 10, 1916

March 1916

APPEAL from the circuit court of Lamar county, HON. A. E WEATHERSBY, Judge.

Suit by A. H. Bennett against the Mississippi Central Railroad Company. From a judgment for plaintiff, defendant appeals.

The facts are fully stated in the opinion of the court.

Reversed and remanded.

S.E Travis, for appellant.

The fact being established, we direct the court's attention to the law applying in such case. For the convenience of the court, we submit excerpts from some of the authorities. Labatt states the rule as follows:

"The most frequent application of the so-called simple-tools doctrine is found in those cases which hold that the duty of the master in respect to simple tools is not continuous, and he is under no obligation to inspect simple tools which he has placed in the hands of his servants for use. And it has been held that no liability can be predicated on the master's failure to instruct a servant in the use of a simple tool.

"It does not seem entirely logical to say that the master is under no obligation to exercise ordinary care to furnish reasonably safe appliances, simply because those appliances chance to be a simple character. The more reasonable view would seem to be to place the non-liability of the master on the ground that any defect in a simple tool must be obvious to the servant, and any risk of danger therefrom must be held to be assumed by him; and this, indeed, is the view taken very frequently.

"Other cases dismiss the allegations of negligence on the part of the master by the statement that the defect was obvious, or was as obvious to the servant as it could have been to the master, without directly invoking the rule of assumption of risk. Decisions of this character would seem to be based upon the theory discussed in chapter XL, namely, that the servant's knowledge or ignorance of the risk involved determines the existence or absence of culpability on the master's part." 3 Labatt's Master & Servant (2 Ed.), sec. 924a.

We direct the attention of the court to the following notes under said section: "The law requiring the master to exercise ordinary care to provide reasonably safe tools and appliances for his servants has no application where the servant possesses ordinary intelligence and knowledge, and the tools and appliances furnished are of a simple nature. Vanderpool v. Partridge (1907 Neb.), 165, 13 L. R. A. (N S.), 668, 112 N.W. 318."

"It is only machinery and appliances which are recognized as in their nature dangerous to employees using them, or working in proximity to them, as to which the employer owes a duty to the employee of looking out for his safety. Lynn v. Glucose Sugar Ref. Co. (1905), 128 Iowa 501, 104 N.W. 577."

"The rule of employer's liability applicable to complicated and dangerous machinery does not apply to simple things like ladders. Smith v. Green Fuel Economizer Co. (1908), App.Div. 672, 108 N.Y.S. 45.

"In Missouri, where the servant does not assume the risk of dangers due to the master's negligence, it has been held that the servant assumes the risk due to defects in simple tools, and it would seem that the court must proceed upon the assumption that negligence cannot be predicated upon the furnishing of tools of this character, although they are defective."

"In Blundell v. W. A. Miller Elevator Mfg. Co. (1905), 189 Mo. 552, 88 S.W. 103, it was held that a servant assumed the risk of using a ladder without prongs to prevent it from slipping."

"In Mathis v. Kansas City Stock Yards Co. (1904), 185 Mo. 435, 84 S.W. 66, it was held that an engineer assumed the risk of injury of standing on a plank resting on the steam chests of two pumps, because the appliance was a simple one."

"A scythe is a simple tool, used by mankind from remote ages to the present for the cutting of grass, grain, and weeds, and it would be absurd to treat as an issue of fact the propriety of its use for such purposes on any kind of ground where the mower could stand. Post v. Chicago, B. & O. R. Co. (1906), 121 Mo.App. 562, 97 S.W. 233."

"The master may assume that employees using a simple tool will discover a defect resulting from its being worn out. O'Brien v. Missouri, K. T. R. Co. (1904), 36 Tex. Civ. App. 528, 82 S.W. 319."

"It has been repeatedly held that if injuries befall an employee from the use of a simple implement or contrivance of this kind (ladder) the master is not liable. Hart v. Clinton (1906), 115 A.D. 761, 100 N.Y.S. 1092."

"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. Koschman v. Ash (1906), 98 Minn. 312, 116 Am. Rep. 373, 108 N.W. 514."

We respectfully submit, in the light of the foregoing authorities, since the anvil is admitted to have been a simple tool or appliance, that there is no escape from the conclusion that no case was made out in appellee's favor, and that said motions should have been sustained for that reason.

Tally & Mayson, for appellee.

It is strenuously insisted by learned counsel for appellant in his brief, that appellee assumed the risk incident to working on the defective anvil and is not entitled to recover and this is predicated of the idea that the anvil comes within that category of implements denominated simple tools. Many citations are taken from Mr. Labatt on abstract principles by which he undertakes to sustain this contention; but an examination of the facts in this record, we think, will fairly disclose that the voluminous citations are not applicable to the case at bar. It is not a question of simple tools vel non as to whether the appellee is entitled to recover. If he had a reasonable safe appliance or tool with which to work and for some reason that tool became no longer suited and it had to be substituted by another, then it devolved upon the appellant to furnish him with another tool that was reasonably safe. All the well considered cases that we have been able to find, as well as the text-books, support the contention that a promise to furnish other instrumentalities in the place of those from which the servant apprehends danger, or in the place of those that are no longer suited for the purpose, should be deemed equivalent in legal effect to a promise to remedy a defect in...