Nashville, C. & St. L. Ry. v. Coleman
| Decision Date | 14 March 1925 |
| Citation | 269 S.W. 919,151 Tenn. 443 |
| Parties | NASHVILLE, C. & ST. L. RY. v. COLEMAN. |
| Court | Tennessee Supreme Court |
Error to Circuit Court, Davidson County; E. F. Langford, Judge.
Proceeding under the Workmen's Compensation Act by J. W. Coleman employee, opposed by the Nashville, Chattanooga & St. Louis Railway, employer. From a judgment awarding compensation, the employer brings error. Reversed, and suit dismissed.
This is a suit under the Workmen's Compensation Act () by an employee of the railway company to recover for injuries resulting in the loss of an eye, which he sustained in the course of his employment. There was a judgment for the plaintiff below, from which the employer has appealed in error.
The employee was a boiler maker of 15 or 20 years' experience. He was injured November 23, 1921. He was engaged in cutting the head of a rivet off a boiler which he was dismantling when injured. He was holding a hex punch on the rivet head, and his helper was hitting the punch with a large hammer. The rivet head flew off, hit a pipe nearby, and rebounded, striking Coleman in the eye and inflicting such injuries as made the removal of the eyeball necessary.
The railway company bases its defense to Coleman's claim for compensation on section 10 of chapter 123 of the Acts of 1919, which is as follows:
"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."
In doing such work as Coleman was engaged upon at the time of his injury, he was allowed two helpers. One of these helpers wielded the hammer, and customarily the other helper held a broom over the rivet head. At the time Coleman was hurt, work had just begun in the morning, and but one of his helpers had reported. That helper was using the hammer, and no one was holding the broom over the rivet head.
The proof shows that, when cut off in this way, rivet heads are likely to fly with great force about the shop, and to prevent employees from being struck by them, as well as because the work was hard, the men had requested that two helpers be allowed about such a job, one helper to use the hammer and the other helper to hold a broom over the rivet head as before stated. The helpers alternated with the broom and the hammer. This request by the men had been granted by the railway company, and a rule requiring such use of a broom had been promulgated.
The company had a further rule in these words:
"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."
The railway company had provided brooms for use about this kind of work and had supplied Coleman with a pair of goggles, and it insists that Coleman's injuries were due to his willful failure to make use of these safety appliances, which appliances had been furnished to him, and the use of which was required in the work he was doing.
Although Coleman, the plaintiff below, was reluctant to say so, we think it clearly appears from his testimony that he knew of the existence of the rule about the use of the broom and of the rule about the use of the goggles. The trial judge found that Coleman knew of the rule requiring him to use goggles "in the character of work he was doing when injured." Coleman testified that the men asked for and were given two helpers about such work, and customarily one helper held a broom over the head of a rivet when it was being cut off, but he said that he did not know such use of a broom was required by any rule. He did know, however, that brooms were to be had for this purpose and were ordinarily so used.
We do not think that the employee can be excused for failure to use a safety appliance at hand, when the nature of his work demands the use of such appliance and he knows it, even though such use of such appliance...
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