Ohio Valley Ry. Co. v. Copley
Decision Date | 15 May 1914 |
Citation | 159 Ky. 38,166 S.W. 625 |
Parties | OHIO VALLEY RY. CO. v. COPLEY. |
Court | Kentucky 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.
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: 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: ...
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