Southern Ry. Co v. Burford

• Decision Date: 16 November 1916
• Citation: 90 S.E. 616
• Parties: SOUTHERN RY. CO. v. BURFORD.
• Court: Virginia Supreme Court

(120 Va. 157)

90 S.E. 616

SOUTHERN RY. CO.

v.BURFORD.

Supreme Court of Appeals of Virginia.

Nov. 16, 1916.

Error to Circuit Court, Amherst County.

Action by John Burford against the Southern Railway Company. Judgment for plaintiff, and defendant brings error. Reversed, and judgment entered, sustaining the demurrer to the evidence and dismissing the plaintiff's case.

Coleman, Easley & Coleman, of Lynchburg, and Robert B. Tunstall, of Norfolk, for plaintiff in error.

Wm. K. Allen, of Amherst, for defendant in error.

HARRISON, J. This action was brought by John Burford against the Southern Railway Company to recover damages for personal injuries alleged to have been caused by the negligence of the defendant company. There was a demurrer to the evidence, which was overruled by the lower court and judgment given in favor of the plaintiff for $1,000, the damages assessed by the jury in the event the court should consider the plaintiff entitled to recover. This judgment is brought under review by the present writ of error.

The salient facts of the case are very few and simple. It appears that the plaintiff was one of three section hands who were engaged in cutting in two a steel rail with a cold chisel. One of the plaintiff's coemployés was holding the chisel by the handle, and the other was striking the chisel with a sledge hammer, while the plaintiff, a few feet from these two, was holding the rail and turning it when told to do so. The head of the chisel, from constant blows, was battered, with little frazzles sticking off the edge. In the progress of this operation a sliver of steel penetrated the plaintiff's eye and put it out. It is not shown with absolute certainty where the particle of steel came from; the only reasonable inference from the evidence is that it came from the head of the chisel. In our view of this case, however, it is immaterial whether the sliver of steel came from the head of the chisel or, as suggested, from the rail that was being cut and in consequence of the defective condition of the blade of the chisel. The same result would follow in either event.

These men were engaged in a very ordinary and simple operation, with simple tools, that required, in the use, no experience or skill. The part taken by the plaintiff in the work was so simple that any child with sufficient strength could have held the rail and turned it when told. The battered condition of the head of the chisel was open and obvious. It was a condition that resulted from its use and was necessarily better known to those who used it than to the master. It is well settled that the employer is under no obligation to his servants to inspect, during their use, those common tools and appliances with which every one in conversant, and that it is not the master's duty to repair defects arising in the daily use of such appliances.

In C. & O. Ry. Co. v. Sparrow, 98 Va. 630, 37 S. E. 302, this court, quoting with approval from an Indiana case, says:

"In cases, however, where persons are employed in the performance of ordinary labor, in which no machinery is used and no materials are furnished, the use of which requires the exercise of great care and skill, it can be scarcely claimed that a defective instrument or tool furnished by the master, of which the employs has full knowledge and comprehension, can be regarded as making out a case of liability within the rule laid down. A common laborer, who uses agricultural implements while at work upon a farm or in a garden, or one who is employed in any service not requiring great skill and judg ment, and who uses the ordinary tools employed in such work, to which he is accustomed, and in regard to which he has complete knowledge, cannot be said to have a claim against his employer for negligence, if, in using a utensil which he knows to be defective, he is accidentally injured.

"In such case, it does not rest with the servant to say that the master has superior knowledge, and has thereby imposed upon him. He fully understood that the spade, the axe, the hoe, or the ladder, the instrument which he used, was not perfect, and if he...