St. Louis & S. F. R. Co. v. Mayne
Citation | 1912 OK 684,127 P. 474,36 Okla. 48 |
Decision Date | 23 October 1912 |
Docket Number | Case Number: 2335 |
Parties | ST. LOUIS & S. F. R. CO. v. MAYNE. |
Court | Supreme Court of Oklahoma |
¶0 MASTER AND SERVANT--Injuries to Servant--Defective Tools-- Knowledge of Servant. An auger bit, the cutting points of which have become shortened and dull from use and frequent sharpening, is an ordinary simple tool, with the use and condition of which a servant of experience has as much or greater knowledge than the master, and where a servant with twelve years' experience as a carpenter, is injured while boring a hole with such tool, and the only negligence relied on or attempted to be proven, is such defect, of dull and worn condition, it not being claimed that it broke, or was otherwise out of repair, held, that the evidence fails to show a violation by the master of any duty owing to the servant, and that the judgment is therefore not supported by evidence.
W. F. Evans, R. A. Kleinschmidt, and E. H. Foster, for plaintiff in error.
R. L. Evans and T. A. Johnson, for defendant in error.
¶1 This suit was filed by Frank H. Mayne in the district court of Choctaw county against the St. Louis & San Francisco Railroad Company on October 8, 1909, for the recovery of damages for personal injuries alleged to have been caused by the negligence of the railroad company in providing plaintiff with a defective tool with which to work. It appears that plaintiff was a carpenter by occupation, having had some twelve years' experience in such trade; that he had worked for defendant about three years and in the repair shops at Hugo for more than a year; that on the day of the injury plaintiff undertook to bore an inch hole through a piece of timber two inches thick, ten inches wide, and 25 inches long, with a hand boring machine belonging to defendant and found there in the shop. The only negligence claimed, shown, or attempted to be shown is that the auger bit which worked in this hand boring machine was dull and the cutting edge of the bit considerably worn down from having been sharpened with a file. It is not claimed that the machine or the bit were otherwise out of repair. It is shown that the machine is a simple contrivance, no more complicated in its mechanism than the ordinary brace and bit. While using it upon the day in question, plaintiff lay a heavy piece of timber upon two wooden saw-horses 23 inches high. Upon this piece of timber he placed the smaller piece which he was working upon. On top of that he put the boring machine, sitting astride it, and clamping it with his legs. In operating the machine, holding to its wooden handles, he pulled with force in turning it, which caused it to move under him and he toppled over and fell, striking his side against a doorknob in close proximity to where he was working. Plaintiff recovered a judgment of $ 500, to review which this proceeding in error was instituted. At the conclusion of plaintiff's evidence defendant demurred thereto, which being overruled, it offered its testimony, and at the close of all the evidence asked the court to give the jury a peremptory instruction in its favor. The refusal of the court to so charge the jury is the serious question presented here. This involves the doctrines of negligence and inspection as applied to a master furnishing the ordinary simple tools used in common labor to his servant. On this question Judge Bailey in his work on Personal Injuries (1 Bailey, Personal Injuries [2d Ed.], sec. 160), under subtitle of "Ordinary Tools," says:
¶2 And in 3 Elliott on Railroads (2d Ed.), sec. 1278a, under title "Simple Tools," we extract the following:
¶3 In the case of Martin v. Highland Park Mfg. Co., 128 N.C. 264, 38 S.E. 876, 83 Am. St. Rep. 671, where the servant was injured by a piece flying from the face of a hammer which he was at the time using in driving an iron key or bolt into a shaft where the bolt was too large, this rule was applied and the master held not liable, and in the course of the opinion the court said:
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