Ohio Valley Ry. Co. v. Copley

Decision Date15 May 1914
Citation159 Ky. 38,166 S.W. 625
PartiesOHIO VALLEY RY. CO. v. COPLEY.
CourtKentucky Court of Appeals

Appeal from Circuit Court, Boyd County.

Action by Thomas Copley against the Ohio Valley Railway Company. From a judgment for plaintiff, defendant appeals. Reversed.

George B. Martin, of Catlettsburg, for appellant.

Dinkle & Prichard and D. M. Howerton, all of Catlettsburg, for appellee.

MILLER J.

The appellee Thomas Copley was injured while in the service of the appellant. He was engaged in stripping coal bumpers which was effected by cutting the heads from the steel rivets that held sheets of steel in the form of a coal bumper. Two tools were used in this work, an ordinary sledge hammer and a steel T-rail cutter; the latter being a wedge-shaped tool sharp at one end, with a head on the other. The cutter was about two inches broad, and 6 or 8 inches long, and had a handle from 18 to 24 inches long, attached to the center of the cutter. Copley was holding the sharp edge of the cutter against a rivet, while his fellow workman, Walters, struck it with the sledge; and while so engaged a small sliver of steel flew from the head of the cutter, striking appellee on the back of the hand, and inflicting the injury for which he sued. The case was based upon the allegation that the appellant was negligent in failing to furnish appellee with a steel cutter that was reasonably safe for the purpose for which it was used. The answer contains a traverse, and pleads contributory negligence and assumed risk upon the part of the plaintiff. The trial court having overruled appellant's motion for a peremptory instruction, the jury returned a verdict for $72 for lost time, and $128 for pain and suffering; and from a judgment based upon that verdict the defendant appeals.

There was no proof of contributory negligence.

Appellant's argument for a reversal is confined to the single proposition, that its motion for a peremptory instruction should have been sustained; and this contention assumes that the proof shows appellant was not negligent, and sustains the plea of assumed risk upon the part of the appellee.

The proof shows that the head of the steel cutter was burred or battered from use, and that it had a rough or ragged edge. Copley had never used a cutter or done work of this character before the occasion mentioned, and says he did not know it was unsafe or dangerous. When he and Walters were directed by the foreman to cut the rivets, Walters procured the cutter and Copley testified he did not examine it until after the accident had happened, although he had been holding it in his hand and working with it for an hour or more. Appellant had several cutters of this character, and the one used upon the occasion mentioned had been selected by Walters, who testified that the rough edges could have been removed by grinding the head on an emery stone. Furthermore, Copley and Walters took turns in the work by which each would alternately hold the cutter, while the other used the sledge. Neither Copley nor Walters made any complaint that the cutter was dangerous or unfit for the work, and there is no evidence that appellant's boss, or its other servants, had any intimation or suspicion that it was defective, beyond the fact that the top was battered, as above stated, if that be considered a defect. Neither was it shown that appellant's boss directed Walters or Copley to take any particular cutter; on the contrary, Walters said he had taken the cutter from the other tools and had hidden it so he could retain it for his own work, and that he took it from its hiding place the morning of the accident, after he had been directed to cut the rivets.

This case is quite similar to Langhorn v. Wiley, 91 S.W. 255, 28 Ky. Law Rep. 1186, where the plaintiff was injured while using a T-rail cutter of precisely the same pattern as that used by Copley, in splitting rock. While Wiley was holding the cutter and his fellow laborer struck it with a sledge, a small piece of the cutter or sledge flew off and struck Wiley on the arm, severely injuring him. He brought his action upon the ground that the tools furnished by the defendant were not safe, proper, or sufficient for the purpose, which fact it was alleged was not known to Wiley, but was known to the defendant. In that case, however, this court directed a peremptory instruction for the defendant, and in doing so it said: "There is no evidence whatever in the record that either the sledge or T-rail cutter were defective, nor that any latent defects in them, if any, could by the exercise of ordinary care have been discovered. In fact, the testimony showed that the T-rail cutter was made of the best quality of steel, tempered for the purpose of using it in cutting steel rails, that the sledge was the kind in general use, and that the tools were practically new. Nor is there any evidence that these tools were not reasonably safe for the purpose in which they were being used. It is true that generally a small tool called a 'wedge' was used in splitting rock, and the T-rail cutter for cutting rails, although the T-rail cutter was sometimes used in place of the wedge in splitting rock. The mere fact that the small wedge was in more general use in splitting rock than the T-rail cutter is not in and of itself sufficient to hold the master liable, upon the ground that the tools furnished were not reasonably safe. The master is only obliged to furnish the servant with tools and appliances that are reasonably safe." As authority for its ruling in the Wiley Case, the court quoted as follows from Vissman v. Southern Ry. Co., 89 S.W. 502, 28 Ky. Law Rep. 429, 2 L.R.A. (N. S.) 469: "While this court has repeatedly announced, and yet holds to the rule, that it is the duty of the master to use ordinary care to provide the servant with reasonably safe tools, material, and place for the work required of him, it has never been carried to the extent of holding him liable for defects in tools, material, or place of work that no sort of inspection on his part could have discovered, for he is not bound to make the tools, material, or place of work absolutely safe, or to insure those engaged in his service against the ordinary risks incident to the nature of the employment."

It is said, moreover, that this case comes within what is known as the "common" or "simple" tool rule, which exempts the master from liability where the instrument or tool, the defect in which is the cause of the injury, is of so simple a character that a person accustomed to its use cannot fail to appreciate the risks incident thereto. The "common" tool rule may be said to be a relaxation of the general rule, which makes it the duty of a master to exercise reasonable care to provide reasonably safe tools and appliances for his servants, since the general rule has no application where the tools and appliances furnished are of a simple nature, easily understood, and in which the defects, if any, can be easily and readily observed by the servant.

The "common" tool rule was recognized by this court in Stirling Coal & Coke Co. v. Fork, 141 Ky. 41, 131 S.W. 1030, 40 L.R.A. (N. S.) 837, where Fork's hand was injured by the imperfect handle of a shovel he was using in loading coal into a car. In holding that Fork could not recover, we said: "We think we may properly put this case upon the ground that the tool furnished to appellee, as well as the use to which he put it, was so simple, and the place it was being used so free from danger, that he should not be allowed to recover for the injury sustained, assuming that it was caused by the defect in the handle. It must be recognized by every one that the rule of safe tools and appliances should not be extended to every tool and every appliance that is used by laborers and servants in the ordinary everyday affairs of life. There are few persons in employments of any kind who do not at some time or in some way use implements or tools (using these words in their broadest sense) in...

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    ...master. To the same effect are the following Kentucky cases: C., N. O. & T. P. Ry. Co. v. Guinn, 163 Ky. 157, 173 S.W. 357; Ohio Valley Ry. Co. v. Copley, supra. simple tool doctrine has been acknowledged and applied in most, if not all, of the states of the Union. Some of the more recent c......
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