Nolen v. Halpin-Dwyer Const. Co.

• Decision Date: 26 May 1930
• Docket Number: No. 16954.,16954.
• Citation: 29 S.W.2d 215
• Parties: JOHN NOLEN, RESPONDENT, v. HALPIN-DWYER CONSTRUCTION COMPANY, APPELLANT.
• Court: Missouri Court of Appeals

29 S.W.2d 215

JOHN NOLEN, RESPONDENT, v. HALPIN-DWYER CONSTRUCTION COMPANY, APPELLANT.

No. 16954.

Kansas City Court of Appeals. Missouri.

May 26, 1930.

Appeal from Circuit Court of Jackson County. — Hon. Brown Harris, Judge.

REVERSED AND REMANDED.

Harris & Koontz for appellant.

Allan R. Browne for respondent.

BARNETT, C.

This is a suit for personal injuries. The plaintiff was employed by the defendant in a rock quarry. It was his duty to break up the rock into small pieces, and for this work he used a hammer or sledge, the head of which was flat or rounded on one end and shaped like a hatchet on the other. The flat end was used for the purpose of breaking thin strata of rock, but the sharp end was used for splitting stone which was too thick to be broken otherwise. Plaintiff was an experienced servant and understood the use of the tool in question. The evidence most favorable to the plaintiff indicates that there were a number of these tools kept by the defendant for the use of its servants, but some were already in use and the one he used was the best of those not already in use. The foreman picked out this particular tool, he and the plaintiff looked it over, and they discovered that there were cakes of rust upon it and it showed checks in the hatchet face of the hammer. The foreman said:

"This looks pretty good. It is better than anything we got. It is a little rusty along the side there. It is a good hammer. Go ahead with the rusty hammer and use that, it will be all right."

Plaintiff used the hammer, on the next day the foreman again told him to use it, and on the third day the same order was given and plaintiff asked him if he did not have a better hammer, and the foreman replied, "not yet." While he was using the hatchet edge of the hammer some rust and steel on the hammer flew up and hit plaintiff in the eye causing injury thereto. Whereupon plaintiff looked at the tool and discovered a piece of steel about one-half inch long and one-half inch thick broken out of the face of the hammer.

Plaintiff, in order to prove the extent of his injury, placed one Dr. Beil on the stand who testified that he had examined the plaintiff's eye on the 11th day of October, 1926, and treated him until the 8th day of November of the same year and examined him again on September 21, 1929, shortly before giving his testimony. Plaintiff's attorney then asked: "Who paid for the other treatments?"

Defendant objected to this on the ground that this was not material and was incompetent. The objection was overruled and the doctor stated that if he remembered right the Maryland Casualty Company paid him, or Halpin-Dwyer, he didn't remember which. Defendant then made the following objection out of the hearing of the jury:

"This is a witness introduced by the plaintiff and put on the stand and hired by the plaintiff and vouched for by the plaintiff and I object to the question and object to the ruling and I ask that the jury be discharged for the reason that the only purpose of it is to get before the jury the fact that the Maryland Casualty Company employed him when they put him on and cannot ride him down."

"The court sustained the objection but refused to discharge the jury. According to the record before us this also happened out of the hearing of the jury. There was a verdict for plaintiff, a motion for new trial was overruled and defendant has appealed.

OPINION.

Appellant claims that respondent, plaintiff below, had assumed the risk of the danger which resulted in his injury and was guilty of contributory negligence as a matter of law. In this connection he invokes the so-called simple tool doctrine. The respondent claims that in Missouri the simple tool doctrine is but an application of the doctrine that contributory negligence defeats recovery, and calls attention to the fact that the plaintiff, although he used a defective tool, used the best one that was to be had of those not already in use; that the foreman looked at the hammer, mentioned that it was a little rusty along the side, but said it was a good hammer and for plaintiff to use it; that it would be all right. There is a rule observed in Missouri that if a master is possessed of an amount of material or a number of tools, some good and others bad, he may leave the duty of selecting proper material or tools to an experienced servant, and if the servant selects insufficient or defective materials or tools when he need not do so, the master may not be held liable. [Probst v. Heisinger Motor Car Co., 16 S.W. (2d) 1005.] That doctrine is not involved here, because the plaintiff used the best of the tools that was not already in service. In the case of Pelster v. Shamrod Boiler Co., 268 S.W. 890, this court refused to apply the doctrine in a case where plaintiff was injured when a chip of steel flew from a hammer and struck him in his eye. In that case a number of hammers were available, but there was evidence that all of the hammers were worn, battered and had little cracks in them, and that no others were to be found. [See also State ex rel. Malleable Casting Co. v. Reynolds, 200 S.W. 57.] The evidence most favorable to plaintiff in the instant case is to the effect that he made the best choice he could have made under the circumstances.

The shred of the simple tool doctrine as it remains in Missouri is peculiar, due to the fact that the Missouri courts hold that the servant never assumes the risk growing out of the master's negligence. For all practical purposes the courts might as well say that the defense of assumption of risk does not exist in Missouri, because if the master was not negligent the servant may not recover whether he assumed the risk or not. In Lowe v. Railroad, 265 Mo. 587, our Supreme Court held that while a master is required to use ordinary care to furnish a servant with safe tools and appliances and to keep them in a safe condition for the performance of the labor required, yet the servant is required to use ordinary care for his own safety; that any ordinary pick is a simple tool and that the experienced servant is possessed of all the knowledge that can be acquired in relation to its safety; that it therefore follows that if the master was negligent because he should have apprehended the danger arising from using a dull pick then plaintiff must be chargeable with the same apprehension. This case does not expressly state that the simple tool doctrine is not an application of the doctrine of the assumption of risk, but the reasoning is to the effect that when the master and the experienced servant are on an equal footing because the tool is simple and each fully understands the nature of the instrument, a jury may not find that the master was negligent and the servant was not. In Williams v. Pryor, 200 S.W. 53, 272 Mo. 613, the defendant furnished the plaintiff an old, battered and worn claw bar. The court said:

"We now come to the simple tool doctrine urged by the defendants. As indicated above, this so-called doctrine cannot avail the defendants, except upon one of two theories, i.e.: (1) that it is not negligence upon the part of the master to furnish a tool which is not reasonably safe for the performance of the work, if such is of simple mechanism and not a complicated one, and (2) that the servant assumed the risk of using such tool.

What we have previously said practically disposes of this question. It is negligence for a master to furnish a tool which is not reasonably safe to be used on the work, and we care not what the character of the tool, in so far as the negligence of the master is concerned, because the contract of hiring called for a reasonably safe place wherein to work, and reasonably safe tools with which to work... . Going back to the so-called simple tool doctrine, what is there to be found in it? In its last analysis it is nothing more than that of contributory negligence. A servant picks up a hoe, an ax, or a claw bar, and if the defects are open and glaring, and so open and glaring that a reasonably prudent person would not undertake to use them in the work being done, then the use of the tool would not be the exercise of ordinary care upon his part for his own protection. This failure to use ordinary care is negligence, and if he sues the master for the master's neglect in furnishing an unsafe tool, the master may respond and say the tool was a simple device, and any ordinary person could have seen and known the defects thereof, and in using it in that condition you have been guilty of negligence which contributed to your injury, and you cannot recover. To my mind that is all there is in the so-called simple tool doctrine in states like Missouri, where we have fixed views upon assumed risk. You can show the simple character of the tool, and the obviousness of the defects, to show contributory negligence."

The court also held that contributory negligence did not defeat recovery under the Federal Employer's Liability Act and therefore a finding by the jury that the master was negligent in furnishing the tool made a case for the jury. The fact that the Supreme Court of the United States reversed the case makes no difference here as this case is not brought under a federal statute. The court mentions the fact that it is negligence for the plaintiff to use an unsafe tool "if the defects are open and glaring, and so open and glaring that a reasonably prudent person would not undertake to use them in the work being done." Whether the defects were so open and glaring as to convict the plaintiff of contributory negligence as a matter of law was not stated, and the court did not overrule, criticize or distinguish the case of Lowe v. Railroad, supra, but based its holding that the case was for the jury on the ground that contributory negligence was not a complete defense. In State ex rel. McLaughlin v. Trimble, 274 S.W. 391, the Supreme Court adopted an opinion of this court in which it was said that the...