Parker v. W.C. Wood Lumber Co.

Citation98 Miss. 750,54 So. 252
Decision Date13 February 1911
Docket Number14682
CourtUnited States State Supreme Court of Mississippi
PartiesERNEST E. PARKER v. W. C. WOOD LUMBER COMPANY

APPEAL from the circuit court of Covington county, HON. R. L BULLARD, Judge.

Suit by Ernest E. Parker against the W. C. Wood Lumber Company. Judgment for defendant and plaintiff appeals.

The record shows that, it was part of plaintiff's duty to place pieces of timber on the rollers to be carried to a saw for cutting. Where timbers were large, implements known as "cant hooks" were used by laborers with which to place such timbers. The cant hook consisted of a large handle made of wood, over which an iron cuff was slipped and fastened a few inches from the bottom. Into this cuff a hook shaped something like a fish hook was fastened by a bolt, so as to give it play. It was operated by hand; the operator catching hold of the handle and placing the hook on the log and using the implement as a sort of lever. The particular hook in question was defective in this: That the cuff was not fastened to the handle, the bolt or screw having come out, so that, when plaintiff attempted to use it and threw his weight against the handle, the cuff slipped and he was thrown injuring his leg, so that amputation became necessary.

Judgment reversed and cause remanded.

R. N Miller, for appellant.

It is ancient law, well understood, that the master is bound not only to furnish his servant with reasonably safe appliances in safe condition, but he is also bound by frequent inspections and attentions to keep them in such reasonably safe condition, and that the servant is not bound to make inspection in the first instance but may rely upon the performance of his duty by the master, and assume that the instrument furnished him is in a reasonably safe condition. Citation of authority is unnecessary upon these elemental principles.

The court below gave a peremptory charge for the defendant, not because the plaintiff had not made out a perfect case by showing that he was injured because of a breach of the master's duty to furnish him with a safe implement and appliance, but solely and alone because the court thought that a cant hook was not one of those implements and appliances which the master's duty bound him to inspect, and the cant hook was what is called a "simple appliance" which the servant in using it had better opportunity than the master to know its defects. I admit there is authority for this position, that the master's duty to inspect does not extend to what is called "simple appliances," while in use, and the master may rely upon the presumption that when they were out or become defective, the servant will first discover the defect. See vol. 20 Am. and Eng. Ency. Law, 2nd Ed., page 89, note 3. It is therefore the only question in the case, is the cant hook such simple appliance or tool?

If it is not such tool, then the court erred and this case must be reversed; again if it was a question of fact, connected with the manner of its use, then it was for the jury and the case must be reversed.

At page 82, vol. 20 Am. and Eng. Ency. Law, 2nd Ed., it is stated:

"The general rule requiring the master to furnish reasonably safe and suitable machinery and appliances has been applied in cases where injuries resulted while using the following appliances and machinery: Brakes, break chains, break beams, brake pins, brake wheels, brake staffs, bents, boilers, cables, chains, coal of inferior quality, cranes, derricks, engines, flanges, fans, gearing, hame straps, hammers, hooks, horses, hosepipe, ice tongs, kettles, ladders, lanterns, mauls, pile drivers, poles, reaping penants, rollers, ropes, shafts, skids, shaperheads, tackles, turntables, wires, wagons," etc.

A large number of cases are cited in the notes in which the defects in these various appliances were held negligence of the master, and that the duty of inspection was on him for the same.

Flowers, Fletcher & Whitfield, for appellee.

The action of the trial judge in excluding the evidence and giving a peremptory instruction for the defendant may be sustained upon several different views or theories of this case.

In the first place the cant hook is a very simple implement. It is not so intricate as to allow hidden defects. There is nothing concealed about it. Every part is obvious to the senses. It needs no inspection, that is no such as is called for by the use of complicated machinery or implements made up of numerous pieces. It is nothing but a piece of wood with a piece of iron tied to it. It is a hook and a handle. Whether the hook is loose on the handle would be determined simply by picking the implement up, and using it or handling it. It would not have to be taken apart. No piece of it would have to be detached from the other pieces. Whatever its condition is may be ascertained from a simple handling of the instrument. If there is a defect it is on the outside. It needs no expert to determine whether it is in usable condition. The novice as well as the professional can say whether it is in good condition. And it is well settled that the character of the instrument determines the extent of the necessary inspection. The master is supposed by special inspection and care to discover and remedy defects which are not open and obvious. The employes or servants using the implements are expected to know the obvious defects and remove them themselves or report them. Miller v. Erie R. R. Co., 21 A.D. 45 (1897); Marsh v. Chickering et al., 101 N.Y. 396; Waschsmuth v. Electric Crane Co., 118 Mich. 275; Lyon v. Glucose Sugar Refining Co., 128 Iowa 501, 104 N.W. 577; Wachsmuth v. Shone Electric Crane Co. (Mich.), 76 N.W. 497; Marsh v. Chickering, 110 N.Y.S. 285; Georgia R. R. Banking Co. v. Nelms, 83 Ga. 70, 9 L.E. 1049, 20 Am. St. Rep. 308; Martin v. Highland Park Mfg. Co., 128 N.C. 264, 38 S.E. 867, 83 Am. St. Rep. 670; Talley v. Reeves (Tex.), 78 S.W. 23; R. R. Co. v. Liahe, 29 P. 175, 176; Stork v. Stolper Cooperage Co., 7 Am. and E. Ann. Cas. 339 and note, pp. 342-343.

Argued orally by J. N. Flowers, for appellant.

OPINION

WHITFIELD, C.

It is earnestly insisted by the appellee, which obtained a peremptory instruction in the court below, after the evidence for the plaintiff was in, that the cant hook in question is a tool of so simple and common and ordinary use as that the servant had equal opportunity of ascertaining any defect in it with the master, and that consequently with respect to such simple tool, of such ordinary and common use, the rule requiring the master to inspect tools furnished the servant does not apply. For a full discussion...

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