The Missouri v. Quinlan

• Decision Date: 11 January 1908
• Docket Number: 15,332
• Citation: 93 P. 632,77 Kan. 126
• Court: Kansas Supreme Court
• Parties: THE MISSOURI, KANSAS & TEXAS RAILWAY COMPANY v. JOHN J. QUINLAN

93 P. 632

77 Kan. 126

THE MISSOURI, KANSAS & TEXAS RAILWAY COMPANY v. JOHN J. QUINLAN

No. 15,332

Supreme Court of Kansas

January 11, 1908

Decided January, 1908.

Error from Labette district court; THOMAS J. FLANNELLY, judge.

SYLLABUS

SYLLABUS BY THE COURT.

MASTER AND SERVANT--Injury to Employee--Defective Appliances--Contributory Negligence--Assumption of Risk. The plaintiff, a skilled machinist employed by the defendant was engaged in the work of chipping a casting. He held a handled chisel while a helper struck it with a plainly defective sledge-hammer supplied by the defendant. A sliver of steel broke from the head of the sledge, flew into plaintiff's eye, and destroyed his vision. Under all the circumstances of the case, stated at length in the opinion it is held: (1) The defendant was guilty of actionable negligence. (2) No duty rested upon the plaintiff to inspect the helper's sledge or to observe its defective condition. He could assume the defendant had performed its duty and had furnished the helper a proper tool. (3) The failure on the part of the plaintiff to observe the sledge did not constitute contributory negligence. He could be negligent only in case he saw the sledge or under the circumstances must have seen it. (4) The plaintiff and the helper were not fellow servants. (5) The plaintiff did not assume the risk of injury from the sledge. (6) The question whether the plaintiff saw the sledge or under the circumstances must have seen it was for the jury to determine.

John Madden, and W. W. Brown, for plaintiff in error.

W. D. Atkinson, for defendant in error.

OPINION

BURCH, J.:

The plaintiff was a skilled machinist employed by the defendant to work in its shops at Parsons. He was directed to fit a large casting, known as a smoke-stack saddle, upon the rounded top of the smoke arch of a locomotive. To do this it was necessary to chip off portions of the casting. The plaintiff marked lines on the casting to guide him in dressing it and secured it to a bench to hold it in position. He then held a handled chisel while a helper struck it with a sledge, the chisel being readjusted with reference to the marks on the casting after each blow. Just as the plaintiff was completing the preliminaries to the work of chipping the casting a helper named Fogleman appeared to do the sledging, bringing with him a sledge of his own selection from a collection of tools supplied to helpers by the defendant. The helper was sent to the work by a foreman, without direction from the plaintiff. The sledge was too highly tempered, and therefore brittle. There were old breaks in each face of it. It was defective and dangerous, and soon after work was begun a sliver of steel broke from it, flew into the plaintiff's left eye, and destroyed his vision. The plaintiff sued for damages and recovered.

In this proceeding in error it is alleged that the petition stated no cause of action; that no cause of action was proved; that the plaintiff was guilty of contributory negligence; that he assumed the risk of the injury which he suffered; that certain instructions given to the jury were inapplicable, because they left to the jury questions which the court should have determined as matters of law; and that the defendant is entitled to judgment on special findings returned by the jury.

The petition stated the nature of plaintiff's employment, his duties, the circumstances of the injury, and contained the following allegations:

"That said sledge-hammer, so used by the said James W. Fogleman, was by defendant supplied and furnished to the servants and employees of defendant engaged as helpers to machinists, for their use in the work about said repair- and machine-shops of defendant; that said sledge-hammer was improperly and too highly tempered, was hard and brittle, would break and sliver off when used, was because thereof not reasonably safe for use, and was because thereof a dangerous and defective tool for use, which facts, from the use and from the appearance of said hammer, were well known to defendant or by the exercise of ordinary care might have been known to defendant."

It is said that this simple charge of knowledge and of means and opportunity for knowledge on the part of the defendant demolished the plaintiff's cause of action. The argument runs thus: The knowledge of the defendant as to the condition of the sledge was no greater than that of the plaintiff; if the defects in the hammer could be ascertained by use and appearance the plaintiff, "who was the last to see the hammer in use before his injury," could have ascertained them; he was called upon for his own protection to make observations and take precautions respecting the tool, particularly since the defects were ascertainable by use and from appearance, and no greater duty in this respect rested upon the defendant than upon the plaintiff.

The same argument is made in discussing the sufficiency of the evidence, the negligence of the plaintiff, assumption of risk, the pertinency of the instructions, and the effect of the special findings. It is continually asserted that the plaintiff owed the duty of scrutinizing his helper's hammer, that he was obliged to know, because of the use and appearance of the tool, if it was safe, and that the defendant's duty of observation rose no higher than that of the plaintiff. Since the argument is based upon a fallacy which permeates the entire brief for the defendant it may as well be disposed of now and once for all.

No duty rested upon the plaintiff to make an independent investigation of the sledge which the helper brought to the work for the purpose of ascertaining if it was safe for use. It was the master's duty to provide the helper with a fit tool. It was not incumbent upon the plaintiff to stop his work to see if that duty had been performed. He could rest upon the assumption that the master would not permit a helper to appear with a defective sledge. Therefore, unless his attention was in fact drawn to the imperfections of the sledge, or unless the sledge was so obtruded upon his gaze that he could not but observe it, the injury could not be charged to any want of care or breach of duty on his part. These principles are fundamental in the law of master and servant, and it is merely carrying coals to Newcastle to cite authorities for them. However, the case of Buoy v. Milling Co., 68 Kan. 436, 75 P. 466, is instructive. The facts are stated in the opinion as follow:

"James Buoy, an employee of the Clyde Milling and Elevator Company, who was assisting in the construction of a warehouse, was injured by the fall of a negligently constructed scaffold. . . . Miller, the general manager of the company, employed Richa to complete the building, and told him that he would send Buoy around to help him. According to plaintiff's testimony, Richa had worked some time and had practically completed the scaffold when Buoy arrived at the building. Buoy inquired if the scaffold was safe, and the reply of Richa was that it could not be pulled down with a team. Plaintiff went upon the scaffold with Richa and within a few minutes it fell to the ground and the plaintiff was seriously injured." (Page 437.)

The syllabus of the case reads:

"The furnishing of a safe place to work and safe appliances with which to do the work is among the absolute duties of the master; and unless the servant's attention is drawn to defects or the dangerous condition of the place or the appliances furnished, or he should have known of them, he is not required to make an investigation, but may rest upon the assumption that the master has performed his duties in these respects."

In the opinion it was said:

"The furnishing of a safe place to work and safe appliances with which to do the work are among the absolute duties of the master. From the testimony a fair inference may be drawn that these duties were not performed. It is said, however, that plaintiff had an opportunity to examine and must have examined the scaffold before using it. According to the testimony he was told to go to the assistance of the carpenter, and when he went he found a scaffold erected upon which he was expected to work, and, unless there was a very obvious defect, he had a right to assume that it was properly built. (Kelley v. Railway Co., 58 Kan. 161, 48 P. 843.) . . . We cannot say that he should have known of the insecurity of the scaffold. Unless his attention was drawn to defects or to the dangerous condition, he was not required to institute an investigation, but might rest on the assumption that the company had performed its duty. . . . As we have seen, the scaffold was not built by him, and the accident occurred within a few minutes after he began work on it. It cannot be arbitrarily said that he knew, or should have known, of the danger to which he was exposed. Under the law, it is not only necessary that the employee shall know of the facts constituting the negligence of the master, or have opportunity to know them, but, in addition to these facts, he must have known, or by the use of ordinary observation ought to have known or understood, the danger to which he was exposing himself by reason of those conditions." (Pages 443, 444.)

With but slight modification this syllabus and opinion could be adopted in the present case. The fact that the helper used a sledge the appearance of which condemned it was not conclusive upon the plaintiff. Such fact did not bind him to knowledge of the sledge's unfitness for use or appreciation of the danger in using it. His relation to the sledge was not the same as that of the defendant, who was obliged to perform the active duty of furnishing its helpers with safe sledges. The plaintiff was under no duty to examine the sledge or...