Nashville, C. & St. L. Ry. v. Wright

• Decision Date: 05 May 1923
• Citation: 250 S.W. 903
• Parties: NASHVILLE, C. & ST. L. RY. v. WRIGHT.
• Court: Tennessee Supreme Court

Page 903

250 S.W. 903

NASHVILLE, C. & ST. L. RY. v. WRIGHT.

Supreme Court of Tennessee.

May 5, 1923.

Appeal from Circuit Court, Davidson County; A. B. Neil, Judge.

Proceeding by Elam E. Wright under the Workmen's Compensation Act against the Nashville, Chattanooga & St. Louis Railway. From an award for plaintiff, defendant appeals. Affirmed.

Frank Slemons and Wm. Waller, both of Nashville, Seth M. Walker, of Lebanon, and Fitzgerald Hall, of Nashville, for appellant.

G. S. Moore and John H. DeWitt, both of Nashville, for appellee.

GREEN, C. J.

This is a proceeding under the Workmen's Compensation Act (chapter 123 of the Acts of 1919). The plaintiff below was a steel worker in the employ of defendant railway, and lost his eye while engaged in the railway company's service. There was a statutory award in favor of the plaintiff, from which the defendant appealed in error to this court.

The employee was engaged with two other men in straightening an iron bar on the door of a freight car. He was holding a daddy maul against one side of the bar, another employee held a flatter against the other side, and a third employee was striking the flatter with a hammer weighing about 11 pounds. A sliver flew off the flatter and pierced the eyeball of the plaintiff, making its removal necessary.

Section 10 of chapter 123 of the Acts of 1919 is as follows:

"Be it further enacted, that no compensation shall be allowed for an injury or death due to the employee's willful misconduct or intentional self-inflicted injury, or due to intoxication, or willful failure or refusal to use a safety appliance or perform a duty required by law. If the employer defends on the ground that the injury arose in any or all of the above-stated ways, the burden of proof shall be on the employer to establish such defense."

There was posted on the bulletin boards in the shops of the railway company where the plaintiff was employed a circular containing the following:

"All Concerned:

"Some of our shopmen are paying little or no attention to our repeated instructions in connection with use of safety goggles.

"Goggles must be worn by all workmen when chipping, using air motors, drilling, sledging of any kind, when using emery wheels, electric welders, or any work where their duties require that their eyes be protected from flying particles.

"There is no excuse for 99 per cent. of eye injuries sustained by our employees. We are anxious to eliminate such injuries, and employees as well as foremen should call one another's attention to such matters when they notice one of their fellow employees taking chances and not in line with safety first.

"Am sending you extra copies of this circular to be posted on your bulletin boards.

"Acknowledge receipt.

                    "Yours truly,   J. J. Sullivan
                                       "Supt. of Machinery."
                

Pictures of accidents showing the benefit from and the necessity of wearing goggles were constantly posted on the bulletin boards.

Although the plaintiff had been furnished with goggles and had them with his tools near at hand, he was not wearing them at the time of this accident. The railway company insists that he was doing "sledging" work when hurt, and that his failure to wear his goggles at this time was a willful failure to use a safety appliance provided for him, and that under the statute he was not entitled to compensation.

There was considerable proof introduced by the plaintiff below tending to show that the work in which he was employed when hurt was not known among the employees as "sledging," but as "`striking." These witnesses say that a hammer such as was used in this operation was known as a striking hammer, and that hammers heavier than this were known as sledge hammers; that accordingly work done with the lighter hammers, such as here employed, was not sledging, and therefore not within the scope...