Southern R. Co. v. Cowan
| Decision Date | 09 January 1936 |
| Docket Number | 24742. |
| Citation | 183 S.E. 331,52 Ga.App. 360 |
| Parties | SOUTHERN RY. CO. v. COWAN. |
| Court | Georgia Court of Appeals |
Syllabus by the Court.
1. While a servant assumes the ordinary risk of his employment where simple tools are furnished for his use, still where the master is negligent in furnishing a defective simple tool and the defect is not obvious, the servant does not assume the risk of the master's negligence; and while the burden is on the servant to show that the master had actual or constructive knowledge of the defective condition of the tool, where it appears that the master reconditioned a simple tool for use and improperly tempered it or left it without being properly tempered, it is inferable that the master had knowledge of its defective condition, and a jury would be authorized so to find.
2. The petition set out a cause of action, and was not subject to the demurrers. There was evidence to support the case as laid in the petition, and the verdict in favor of the plaintiff was not contrary to law. No reversible error appears from any of the grounds of the motion for new trial.
Error from Superior Court, Fulton County; Edgar E. Pomeroy, Judge.
Suit by R. L. Cowan against the Southern Railway Company. Judgment for plaintiff, defendant's motion for a new trial was overruled, and defendant brings error.
Affirmed.
In suit under Federal Employers' Liability Act based on employer's negligence in that employer either improperly tempered maul or left maul untempered, charge holding to ordinary care in furnishing servants with reasonably safe appliances held not error. Federal Employers' Liability Act, 45 U.S. C.A. §§ 51-59.
Neely Marshall & Greene, of Atlanta, for plaintiff in error.
Hewlett & Dennis, of Atlanta, for defendant in error.
1. R. L. Cowan brought suit against the Southern Railway Company for damages on account of alleged negligence in furnishing to him an unsafe and unfit tool with which to do his work. The case was based on the Federal Employers' Liability Act, 45 U.S. C.A. §§ 51-59. The defendant demurred generally and specially, and to the judgment overruling the same the defendant excepted pendente lite. The defendant set up that the plaintiff assumed the risk of his employment and that he was guilty of contributory negligence. The trial resulted in a verdict for the plaintiff for $5,000. The defendant's motion for new trial was overruled, and it excepted.
Cowan was foreman of a section gang employed by the defendant, a railroad engaged in interstate commerce, in the repair, upkeep, and maintenance of a certain portion of its roadbed and tracks. On the occasion of the injury Cowan was engaged in wielding a steel hammer or spike maul, by striking the end of a claw bar for the purpose of driving it under a spike embedded in a crosstie in order to remove the spike from the tie, when a fragment of the head of the hammer or maul slivered or chipped off its face and struck Cowan in the eye, causing him to lose the same. Cowan contended that the hammer was a tool furnished him by the railway company, which had been repaired and reconditioned by it, and on account of such reconditioning it was left in a defective condition in that it was improperly tempered, that he did not know that the tool was in a defective condition and could not have discovered the same by casual inspection thereof, that it was the duty of the railroad to furnish him with safe tools, which it failed to do, and that a hammer in the condition this one was in was not suitable and fit for the purpose to which it was intended to be used, and that the defendant company was negligent in the reconditioning of the hammer and in furnishing him a defective and unsafe tool with which to work. This case, as stated above, is brought under the Federal Employers' Liability Act, and under the allegations of the petition it is properly one under that law. Louisville & N. R. Co. v. Kemp, 140 Ga. 657, 79 S.E. 558.
Every common carrier by rail while engaging in interstate commerce shall be liable in damages for injury to an employee, resulting in whole or in part from the negligence of any of its officers, agents, or employees, or by reason of any defect or insufficiency, due to its negligence, in its cars, engines, appliances, machinery, roadbed, works, boats, wharves, or other equipment. Federal Employers' Liability Act § 1, 45 U.S. C.A. § 51.
An employee engaged in repair or maintenance work designed to preserve the safe condition of a railroad track used in whole or in part for interstate commerce is within this section. 45 U.S. C.A. p. 158, note 226; Louisville & N. R. Co. v. Kemp, supra.
In a case brought under the Federal Employers' Liability Act the mere happening of the accident will not warrant a recovery. There is no presumption of negligence on the part of the railroad or any of its servants arising alone from proof of injury to one of its employees. The act itself states that the railroad is liable when the injury is due to negligence of any of its officers, agents, or servants, or where the injury is the result of the negligence of the railroad in furnishing tools, appliances, etc. See Louisville & N. R. Co. v. Kemp, supra; Williams v. Western & A. R Co., 20 Ga.App. 726, 729, 93 S.E. 555; Landrum v. Western & A. R. Co., 146 Ga. 88, 90 S.E. 710; Southern Ry. Co. v. Blackwell, 20 Ga.App. 630, 93 S.E. 321; San Antonio, etc., R. Co. v. Wagner, 241 U.S. 476, 36 S.Ct. 626, 60 L.Ed. 1110. Ordinary diligence requires the railroad to furnish its servant tools reasonably suited for the uses intended. Williams v. Alabama Great Southern R. Co., 15 Ga.App. 652, 84 S.E. 149. This federal law does not give a new cause of action which did not exist at common law, but modifies the common-law rule, under the master and servant doctrine, with respect to the defenses of contributory negligence, assumption of risk, and fellow-servant negligence. The relation of master and servant must be shown between the railroad and the complaining employee. In Rome Scale Mfg. Co. v. Harvey, 15 Ga.App. 381, 385, 83 S.E. 434, 435, it was held: "There is proof that the hammer chipped and was defective, and that it was furnished by the master, who was chargeable with the duty of inspection." See Harvey v. Rome Scale, etc., Co., 13 Ga.App. 571, 79 S.E. 487; Maloy v. Port Royal, etc., Ry. Co., 97 Ga. 295, 22 S.E. 588; Williams v. Garbutt Lumber Co., 132 Ga. 221, 64 S.E. 65. The Federal Employers' Liability Act does not affect the master's nonassignable duty to excercise reasonable care in providing reasonably safe tools and appliances to his servant. While the rule is that the master must excercise ordinary care in furnishing its servants reasonable safe tools to work with, there is no absolute responsibility on the master for the safe condition of the tools furnished. 45 U.S. C.A. p. 187, note 292; Baltimore & O. S.W. R. Co. v. Carroll, 280 U.S. 491, 50 S.Ct. 182, 74 L.Ed. 566; Seaboard Air Line Ry. v. Horton, 233 U.S. 492, 34 S.Ct. 635, 58 L.Ed. 1062, L.R.A. 1915C, 1, Ann.Cas. 1915B, 475. The railroad company is not an insurer of the safety of its employees. Renn v. Seaboard Air Line R. Co., 170 N.C. 128, 86 S.E. 964. But the employee has a right to assume that the railroad has furnished him with a reasonably safe tool with which to do his work. Wichita Falls & N.W. Ry. Co. v. Davern, 74 Okl. 151, 177 P. 909. And where the railroad with knowledge, either actual or constructive, furnishes a tool that is unsafe, the servant does not assume the risk, unless the defect is so patent or obvious that any man of ordinary prudence would discover it on casual observation. However, the railroad in this case contends that the tool furnished to the plaintiff employee was a simple tool, and it was not its duty to inspect it. Counsel state that in the case of simple tools, where a master has performed his initial duty of using ordinary care to furnish his servant with a safe tool, the master may rely on the servant to discover and warn him of defects. Swaim v. Chicago, etc., Ry. Co., 187 Iowa 466, 174 N.W. 384. The defendant contends that the principle that it is not the duty of the master to inspect simple tools, where the defect is necessarily obvious, is applicable and controlling in this case. Ft. Smith, etc., R. Co. v. Holcombe, 59 Okl. 54, 158 P. 633, L.R.A. 1916F, 1237. Gekas v. Oregon-Washington R. & Nav. Co., 75 Or. 243, 146 P. 970; Cole v. Seaboard Air Line R. Co., 199 N.C. 389, 154 S.E. 682. Where a simple tool is defective and the employer has knowledge thereof, actual or constructive, and the employee has not, the employer is liable. Ft. Smith, etc., R. Co. v. Holcombe, supra; 39 C.J. 763, cases note 72. It cannot be said as a matter of law, without reference to the use made of it, that because a hammer or maul is a simple tool the master, when furnishing it to his servant, does not owe to him the duty to use ordinary care to see that such tool is reasonably suitable and safe to use in the work to be done. Hines v. Flinn (Tex.Civ.App.) 222 S.W. 679. The reason usually assigned for the "simple tool doctrine" is that the defects and dangers inherent in the use of the defective tools and appliances are obvious and that the servant has an equal or better opportunity than the master to learn of such defects and to comprehend the risks of injury therefrom. 39 C.J. 762. While it is true that it is the duty of the master to excercise ordinary care in furnishing safe tools to work with, still, if the tool furnished is not safe and the servant knows of it, he assumes the risks incident to its use and if injured the master would not be liable. Young v. Norfolk, etc., Ry. Co., 171 Ky. 510, 188 S.W. 621; Swaim v. Chicago, etc., Ry. Co., supra. It is true...
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