Morris v. Hines

• Decision Date: 16 February 1922
• Docket Number: 21744
• Parties: JOHN F. MORRIS, APPELLEE, v. WALKER D. HINES, APPELLANT
• Court: Nebraska Supreme Court

187 N.W. 130

107 Neb. 788

JOHN F. MORRIS, APPELLEE, v. WALKER D. HINES, APPELLANT

No. 21744

Supreme Court of Nebraska

February 16, 1922

APPEAL from the district court for Cass county: JAMES T. BEGLEY JUDGE. Affirmed on condition.

AFFIRMED ON CONDITION.

J. A C. Kennedy, Edward J. White and Yale C. Holland, for appellant.

Matthew Gering and A. L. Tidd, contra.

Heard before MORRISSEY, C. J., ALDRICH and FLANSBURG, JJ HOSTETLER and MORNING, District Judges.

OPINION

HOSTETLER, District Judge.

The plaintiff for his cause of action alleges that he was employed on January 10, 1919, as a section hand; that he was inexperienced in said work; that defendants knew this; that prior to January 22, 1919, the day he was injured, defendants furnished a fellow servant with a defective and imperfectly tempered spike maul; that the defective condition of said maul was known to defendants, or could have been known by the exercise of reasonable care; that said maul was rough, worn and chipped on the edge; that defendants knew the dangerous condition of said maul; that defendants did not warn or give him notice of such condition. Plaintiff alleges that the fellow servant to whom said defective maul was furnished placed it between a spike and a rail and directed plaintiff to strike the maul for the purpose of straightening the spike; that plaintiff did so, and that a piece of steel from the defective maul flew into his right eye and destroyed the sight thereof. Plaintiff alleges that the fellow servant failed to warn him that the maul was defective.

Defendants admit the employment of the plaintiff as a section hand; allege that he was familiar with his duties and with the use and nature of spike mauls, and that he knew about the defective condition of the spike maul. The answer further admits that plaintiff got something in his eye that caused the loss of the sight thereof. For further answer defendants deny the allegations of the petition, and allege contributory negligence and assumption of risk.

Plaintiff for reply denies the allegations of the answer, except in so far as they admit the allegations of the petition.

Upon the issues joined trial was had, and the jury returned a verdict for plaintiff and against Walker D. Hines, director general, for $ 12,000. Upon this verdict judgment was rendered and motion for new trial overruled. Defendant Hines appeals to this court.

The plaintiff contends that this action is properly brought under the federal employers' liability act. 8 U.S. Comp. St. 1916, secs. 8657-8665.

The defendant in his brief says: "Both parties concede that the federal employers' liability act controls." The legal rights of the parties must be determined by this act. In so far as its provisions apply to the facts in this case, said act is as follows:

"Section 8657. Every common carrier by railroad while engaging in commerce between any of the several states * * * shall be liable in damages to any person suffering injury while he is employed by such carrier in such commerce * * * for such injury * * * resulting in whole or in part from the negligence of any of the officers, agents, or employees of such carrier, or by reason of any defect or insufficiency, due to its negligence, in its cars, engines, appliances, machinery, track, roadbed, works, boats, wharves, or other equipment."

"Section 8659. In all actions hereafter brought against any such common carrier by railroad under or by virtue of any of the provisions of this act to recover damages for personal injuries to an employee, * * * the fact that the employee may have been guilty of contributory negligence shall not bar a recovery, but the damages shall be diminished by the jury in proportion to the amount of negligence attributable to such employee; provided, that no such employee who may be injured * * * shall be held to have been guilty of contributory negligence in any case where the violation by such common carrier of any statute enacted for the safety of employees contributed to the injury * * * of such employee."

"Section 8660. In any action brought against any common carrier under or by virtue of any of the provisions of this act to recover damages for injuries to * * * any of its employes, such employee shall not be held to have assumed the risks of his employment in any case where the violation by such common carrier of any statute enacted for the safety of employees contributed to the injury * * * of such employee."

Defendant contends that the evidence is not sufficient to sustain the verdict and judgment. Defendant alleges that there was no evidence to justify the jury in finding that the chip which struck plaintiff in the eye came from the defective maul. Plaintiff testified that he struck the defective maul three times, and that when he made the third stroke he was struck in the eye by a chip which he thought came from the maul, that he did not strike any object other than the maul, that he could not hit the spike.

B. L. Coffman testified that he saw plaintiff hit the maul once, and that he then threw his hand to his eye.

Robert Earle testified that he heard Hinds tell plaintiff to strike the maul.

Defendant's witness, Guy O. Hinds, testified that plaintiff hit the east end of the maul, that is the end with the chips off; he hit it three times and then dropped his maul and threw his hand to his eye.

Dr. J. F. Kelly, the X-ray specialist, testified that he examined plaintiff's eye and that a piece of metal was located in the orbit above the eyeball.

The maul struck by plaintiff showed where several chips had been broken off. Were the jury justified in finding from this evidence that the chip that struck plaintiff in the eye came from the defective maul? There is no evidence that he struck any other object than the defective maul. It is certainly a reasonable conclusion that the chip came from the object he struck, particularly when said object disclosed places where chips had been broken off. It is unreasonable to believe that the chip came from some object he did not strike. The jury drew from the evidence the only reasonable conclusion the evidence would warrant--that the metal chip came from the defective maul. Swaim v. Chicago, R. I. & P. R. Co., 187 Iowa 466, 174 N.W. 384, is an instructive case upon this subject. It is there said:

"Proximate cause is not always capable of direct proof. Indeed, more often than otherwise, it is a matter of deduction or natural inference from the circumstances appearing in evidence. It is no answer to the plaintiff's claim in this respect to say that fragments of rock will sometimes fly under the impact of a pick in perfect condition, and that it is, therefore, possible for plaintiff to have received the injury of which he complains, even if the pick had not been defective. Absolute certainty of proof is not required, and indeed is rarely obtainable. As it has been stated by this court, 'Proximate cause is probable cause; and the proximate consequence of a given act or omission, as distinguished from a remote consequence, is one which succeeds naturally in the ordinary course of things.'"

Again, defendant alleges that the evidence is insufficient to warrant the jury in finding that the fellow servant, Guy O. Hinds, told plaintiff to hit the defective maul. Plaintiff testified that Hinds told him to hit the maul. He is corroborated by Coffman and Earle, who were in close proximity, who both testified that Hinds told plaintiff to hit the maul. Hinds denies this, and says he told plaintiff to hit the spike. Here were three witnesses against one. To say the least, the evidence was conflicting. The jury were fully justified in finding in favor of the plaintiff on this point.

Again, does the evidence show that the maul was defective? Defendant's witness Hinds testified: "Q. When you went to work where? A. On the section; when I first picked that maul out of the tool house, from the time I went to work it chipped off some. Q. Was the maul rough? A. It would have to be. Q. Well, was it? A. Yes, sir. Q. How long had it been rough and chipped before the accident, to your knowledge? A. A couple of weeks." This evidence clearly established the fact that the maul was chipped, and that Hinds, the fellow servant, knew it for at least two weeks before the accident. He said it chipped off when he used it. If it chipped off once or twice while he used it, he had notice and knew that it was liable to chip again, and it was clearly negligence on his part to direct plaintiff to strike the maul under the circumstances as he knew them to exist.

Plaintiff testifies that he had never observed the maul; that he did not know it was chipped or defective; that it was not in a position so he could see the chips when he struck the blow. No one testifies to the contrary. It was for the jury to say whether he acted as a reasonable man under the circumstances. If a carpenter stopped to examine the head of every nail before he drove it, he would be useless. If a section man stopped to examine every object he struck, he would lose his job.

But defendant contends that the maul was not defective. Defendant introduced witnesses who said it was a reasonably safe tool. Plaintiff also produced witnesses on this subject. Mr. Dodge, in charge of the tool room of the Burlington, testified: "Q. Mr. Dodge, looking at that maul, what would you say with reference to that being a reasonably safe tool to use, and a proper tool to be given to a man to use for the purpose for which it is intended? A. That tool should not be used at all, after it started to fly off to pieces like that. Q. Why? A. Simply because it is defective in the hardening of it. Q. What would you say about that being a defective or proper tool? A. It would be...