Vanderpool v. Partridge
| Decision Date | 24 May 1907 |
| Docket Number | 14,846 |
| Parties | JOHN E. VANDERPOOL, APPELLANT, v. CHARLES W. PARTRIDGE, APPELLEE |
| Court | Nebraska Supreme Court |
APPEAL from the district court for Douglas county: WILLIAM A REDICK, JUDGE. Affirmed.
AFFIRMED.
Weaver & Giller and W. S. Lewis, for appellant.
C. C Wright and B. H. Dunham, contra.
GOOD C. DUFFIE and EPPERSON, CC., concur.
This action was instituted in the district court for Douglas county by the appellant to recover damages for an injury which resulted in the loss of his left eye. At the close of the plaintiff's testimony the trial court directed a verdict for the defendant, and plaintiff brings the case to this court on appeal.
Appellant alleged in his petition that, while he was employed by the appellee in cutting holes for the support of a joist in a brick wall of a building, and while using a two pound steel hammer and a chisel made from an old rasp, a chip or sliver from the end of the rasp flew off and struck him in the left eye, and so injured it that it had to be removed. Appellant alleged that the appellee carelessly and negligently ordered and directed him to perform work outside of his usual and customary employment; that appellee failed and neglected to give appellant proper instructions for the performance of the work; that appellee negligently furnished an old rasp made into a chisel on which there was no wooden handle or top to prevent the same from chipping off. Appellee in his answer admitted the injury resulting in the loss of the eye, and the employment of the appellant, denied all the other allegations of the petition, and pleaded negligence and assumption of risk by the appellant. At the close of appellant's evidence the trial court, upon motion of the appellee, directed a verdict in his favor upon the ground that, under the pleadings and the evidence, appellant was not entitled to recover.
The statement of the facts found in appellee's brief is so clear and nearly in accord with the record that, with slight variation, we adopt it in this opinion. The appellant was 25 years of age, apparently a man of at least average intelligence and knowledge, and received his injury in October, 1904, while cutting holes for joists in a brick wall of what is known as the "Allen Brothers' Building," which was being reconstructed by the appellee in the city of Omaha. Appellant, prior to his injury, had worked on this building about a month off and on. His first work was tearing down an old brick wall, which was done with a crowbar and pick. He next dug holes in the bottom for the foundation. He had been using a hammer and a chisel for about ten days prior to the injury. Part of this time he was tearing down and shaping up a corner of the brick wall, where another wall was to be joined to it. In this work he used a hammer and cold chisel, and was instructed by the appellee and his foreman how to perform the work. While appellant was performing this work with a cold chisel, appellee told him the chisel was too thick, and sent him to Nelson, the foreman, to procure another chisel. The foreman gave him the old rasp, which was afterwards made into the chisel which appellant was using when he received the injury complained of. Appellee told appellant to take the rasp to the blacksmith shop and have it made into a chisel. Appellant took the rasp to the blacksmith shop and watched the blacksmith make it into a chisel, and, when it was finished, returned and showed it to the appellee, and asked him if it would do, and the appellee said: "Yes." Shortly after this the appellant was directed to cut the holes in the wall for the joists. It does not appear that he was given any specific directions as to what tools to use in performing that work. Nelson, the foreman, showed him where to cut the holes, and marked out the places with a line and chalk and showed him how to perform the work, making holes about 10 inches by 12 inches in size and 8 inches deep. In the performance of the work appellant stood on a ladder, holding the chisel in front of him and pounding upon it with the hammer, striking light blows. At the time he was injured he had cut about 20 to 25 holes, and the end of the chisel upon which he hammered had become considerably battered. Prior to his injury appellant had been in the employ of the appellee for about 18 months as a roustabout or carpenter's helper, and had worked for the appellee in remodeling the Barker hotel and several other buildings, where he had been employed in tearing down partitions, repairing and putting in new floors, and tearing down brick walls, and assisting the carpenters in whatever they desired him to do. Sometime prior to his employment by the appellee he had worked in Omaha in the roundhouse of the Missouri Pacific Railway Company, and for the Chicago & Northwestern and the Missouri Pacific railway companies as a section laborer, and later in a roundhouse, firing engines. It also appears from the appellant's own testimony that three or four days prior to his injury, in talking with one of the carpenters engaged in work upon the building, he had stated to the carpenter that he believed the chisel was an unsafe tool to work with, to which the carpenter replied that it was too hard, it was not made for a chisel. The appellant further states that at the time of the injury he thought the chisel was too hard, and admits that he told the carpenter that the tool was too hard or dangerous prior to the injury, and that he at no time made any complaint or protest to the foreman or to the appellee concerning the unsafe or dangerous condition of the tool.
The rule of law is well recognized that it is the duty of the master to use ordinary care in furnishing reasonably safe tools and appliances for his servants. In Central Granaries Co. v. Ault, 75 Neb. 255, 107 N.W. 1015, it was said: ...
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