Tompkins v. Marine Engine & Mach. Co.

• Decision Date: 24 June 1904
• Citation: 70 N.J.L. 330,58 A. 393
• Parties: TOMPKINS v. MARINE ENGINE & MACH. CO.
• Court: New Jersey Supreme Court

58 A. 393

70 N.J.L. 330

TOMPKINS

v. MARINE ENGINE & MACH. CO.

Court of Errors and Appeals of New Jersey.

June 24, 1904.

(Syllabus by the Court.)

Error to Supreme Court.

Action by John E. Tompkins against the Marine Engine & Machine Company. Judgment for defendant. Plaintiff brings error. Affirmed.

This case was tried at the Essex circuit court before Gummere, C. J., and a jury, and a judgment of nonsuit ordered. The plaintiff in error, a young man of the age of 19 years, in the employ of the defendant, was injured while setting a tool in a planer with a machinist's steel hammer. A chip of steel came from the tool and entered his left eye, destroying the sight thereof. The plaintiff had been at work in the shop of the defendant for between five and six months, being first employed as a helper on a rail planer, and subsequently he said he took the rails himself on the planer, and had them taken off and set the tools. The tools were set in what is termed an "apron," and adjusted to a gauge. They were set by tightening them first and then tapping them into position with a hammer. It appeared that the defendant provided nothing for the workmen to set the tools in the planer; the men employed were required to bring with them their own kit of tools; that plaintiff brought his own hammer, which was a machinist's steel hammer, and kit of tools; that the other men used steel hammers in setting the tools, and some of them used heavier hammers than his. Plaintiff had previously worked for 10 months in an automobile shop, and had there been taught planing. One Dean had recommended him to defendant, and it also appeared that after he entered the employment of defendant Dean instructed plaintiff how to set his tools and use the hammer, and in doing so showed the plaintiff by example how to set the tools so that they could be safely hit with a steel hammer. It also appeared that the majority of the tools used for the planers were of air hardened steel. At the conclusion of the case for the plaintiff a motion to nonsuit was made on the ground that the proofs did not show negligence on the part of the defendant, that the accident was caused by the ordinary risks and dangers incident to the employment in which plaintiff was engaged, and that the danger of using a steel hammer and doing the work in the manner testified to by the plaintiff was an open and obvious one. The trial judge directed a nonsuit and error has been assigned thereon.

Samuel Kalisch, for plaintiff in error.

George Holmes, for defendant in error.

VROOM, J. (after stating the facts). The contention of the plaintiff in error is, first, that the defendant was guilty of negligence in failing to provide a proper and safe tool or implement with which to do the work; and, second, the plaintiff being inexperienced, an additional duty devolved upon the master, which was to warn the plaintiff of any danger attending the work which was not obvious to the plaintiff.

The court has repeatedly laid down the master's duty under the contract of employment. In the recent case of McDonald v Standard Oil Co., 69 N. J. Law, 445, 55 Atl. 289, it was held to be "to use reasonable care to provide a proper and safe place in which the servant may work, to furnish suitable tools with which he may work," etc.; the underlying obligation being the use of the reasonable care. And in Campbell v. The Gillespie Co., 69 N. J. Law, 279, 55 Atl. 276, this court said that the master "is not bound to adopt the latest improvements in machinery; neither is he liable for an accident which would not have occurred if such improvements had been adopted. He is not required to furnish the best appliances possible to be obtained, but they must be reasonably safe, and kept so." This accords with the rule as laid down in Shearman & Redfield on Negligence, vol. 1, § 195: "The master is not bound to provide the very best materials, implements, or accommodations which can be procured, nor those which are absolutely the most convenient or most safe. His duty is sufficiently discharged by providing those which are reasonably safe and fit." Marsh v. Chickering, 101 N. Y. 396, 5 N. E. 56. Granting that the permitting by the defendant of the use of the steel hammer on the part of the plaintiff was an adoption of it by the defendant, it by no means follows that it was an improper implement to use, and that the sanctioning of its use was negligence of the defendant for, if it was a tool in common and ordinary use for the purpose to which it was applied in this case, the duty of the master to the servant is discharged. That duty is defined to be to furnish "only such appliances, safeguards, and tests as are usual." Shear. & Red. on Negl. (5th Ed.) p. 314. There was no evidence in the case to show that the setting of tools by the use of a steel hammer...