E. Tenn., Va. & Ga. R.R. Co. v. Duffield

• Decision Date: 30 September 1883
• Parties: EAST TENNESSEE, VIRGINIA AND GEORGIA RAILROAD COMPANY v. JOHN DUFFIELD.
• Court: Tennessee Supreme Court

80 Tenn. 63

EAST TENNESSEE, VIRGINIA AND GEORGIA RAILROAD COMPANY

v.JOHN DUFFIELD.

Supreme Court of Tennessee.

September Term, 1883.

FROM M'MINN.

Appeal from the Circuit Court of McMinn county. D. W. TREWHITT, Judge.

W. M. BAXTER and JOHN ALLISON for Railroad Company.

S. J. KIRKPATRICK and WEBB & MCCLUNG for Duffield.

COOPER, J., delivered the opinion of the court.

Duffield was a section hand in the employment of the railroad company, and was at work in spiking down rails on the road, under a section boss, when the injury was sustained for which he brought this suit. The rails had been taken up, and were being relaid as fast as possible for the next train. The plaintiff below was using a hammer with which he had been working for six months. The hammer was furnished by the company, and was an old hammer, the plaintiff says, when he got it, and with a handle that he himself had put in it, which was cracked. The face of the hammer at one end was bursted partially off, and the face of the other end was rounded like an egg. The plaintiff says the hammer was broken on the day before the accident in cleaving rails, but there is other testimony tending to show that the hammer had been in the same condition for a week or longer. The section boss directed the plaintiff to take the hammer and drive the spikes in the rails. The plaintiff objected that the hammer was dangerous to work with, but the section boss told him, with an oath, to take it and go on with the work, other wise he would lose his place. The plaintiff did accordingly proceed to drive spikes with the hammer, when one of the spikes ““flew” under a blow of the hammer, and struck him on the shin, breaking the bone, and creating a severe and ulcerous wound. According to the testimony work of driving spikes is a dangerous one, the spikes frequently flying when struck by the most skilful men with the best hammer. The plaintiff testifies that he knew the condition of the hammer and the handle. He says: “Of course I was obliged to see that the hammer was broken; any man who wasn't blind could have seen the condition of the hammer. I knew when I saw it that it wouldn't do to drive spikes with, and that is why I spoke to the section boss about it.” He had been a railroad hand for thirteen years.

The verdict and judgment were in favor of the plaintiff below, and the railroad company appealed in error. The grounds relied on for reversal are alleged errors in the charge of the court or in the refusal to charge as requested. The Referees have reported in favor of reversal because of an error in the charge.

The court, among other things, charged: “If the evidence shall show you that the defendant furnished to plaintiff a defective or unsuitable hammer, and that the defects in the hammer were such that plaintiff could have seen them and known them, and judged of the unsuitableness of the same as well as his superior; and if he, plaintiff, accepted service using the same, or continued in service using the same, with full knowledge of such defects, he would be regarded as voluntarily taking the risk, and he could not recover for any injury resulting from such defective implement. But if the evidence shall show that the plaintiff had already entered upon his employment under the defendant's servant, and if, while so engaged, he discovered the defective condition of an implement with which he was ordered or required by his superior to work; and if the evidence shall further show you that he complained to his superior of such defective implement; and if the evidence shall also show you that he was ordered by his immediate superior to use the same on pain of being discharged; then, if the proof shall show that he did so use such defective implement, and while using the same was injured while in the exercise of ordinary care, then the defendant would be liable, and for such damages as all the facts and circumstances may warrant.”

The Referees suggest that the charge is self-contradictcry, the latter end having forgotten the beginning. For while the first paragraph says broadly that the plaintiff cannot recover if he used the hammer with knowledge of its defects, the last paragraph says he may recover notwithstanding such knowledge. The charge is loosely worded, but his Honor no doubt intended to say that while, as a general proposition, a servant cannot recover for an injury occasioned by the use of a defective tool while he continues to use it with knowledge of its defects, yet he may recover in the particular case where he was ordered by his immediate superior to use the implement on pain of being discharged notwithstanding his knowledge of its defects. And the question is whether the proposition enunciated is correct as matter of law in view of the facts of this case.

The master is not an insurer of the safety of his servants in respect to the machinery or implements used, nor is he under an obligation, under all circumstances, to make use of the safest known instruments, nor is he responsible for a failure to discard an implement which is not such, and supply its place with something safer. His general duty is to supply proper tools. But if the servant knows before he enters service, or discovers afterwards that an instrument is unsafe or unfit in any particular, and, notwithstanding such knowledge, voluntarily enters into, or continues the employment without objection or complaint, he is deemed to assume the risk of the danger thus known, and to waive any claim for damages against the master in case it shall result in injury to him: East Tennessee, Virginia & Georgia Railroad Co. v. Hodges, 2 Leg. Rep., 6. The fact that a servant has complained of a defect will not entitle him to recover unless a promise to repair has been made. And if he continues to serve after the expiration of a reasonable time from the date of a promise to repair, he will be deemed to have accepted the risk of the dangers, and the master will not be liable. On the other hand, there is a class of cases which hold that, although the servant may be aware of the defect, yet if it was of such a nature that a man of ordinary prudence would not, on account of it, have abandoned the service, and the servant continues therein, and was in consequence of the defect injured, he may recover damages: 2 Thomp. Neg., 1010. The rule, if sustainable, must be defended upon general views of policy, based upon the consideration of the unequal situation of master and servant: Louisville & Nashville Railroad Co. v. Bowler, 9 Heis., 866. So if the servant incur the risk by the express direction or command of the master or his agent, and the danger was not inevitable or the necessary result of performing the service, it is a question for the jury to say whether the performance of the service was negligence in fact: Wood on Master and Servant, sec. 378. The duty of the servant being obedience, if the master orders him to perform a dangerous service, and he obeys, and is thereby injured, the law will not deny him a remedy on the ground of contributory negligence, unless the danger was so glaring that no prudent man would have entered into it, even where,...