Webster Mfg. Co. v. Nesbitt

• Citation: 68 N.E. 936,205 Ill. 273
• Parties: WEBSTER MFG. CO. v. NESBITT.
• Decision Date: 26 October 1903
• Court: Illinois Supreme Court

205 Ill. 273

68 N.E. 936

WEBSTER MFG. CO.

v.NESBITT. ^*

Supreme Court of Illinois.

Oct. 26, 1903.

Appeal from Appellate Court, First District.

Action by Adam Nesbitt against the Webster Manufacturing Company. From a judgment of the Appellate Court (105 Ill. App. 261) affirming a judgment for plaintiff, defendant appeals. Reversed.

O. W. Dynes, for appellant.

Francis T. Murphy (Edward C. Higgins, of counsel), for appellee.

WILKIN, J.

Appellee recovered a judgment in the superior court of Cook county against appellant for $6,000, in an action for a personal injury alleged to have been sustained by him, while in the employ of appellant, on September 23, 1897, which judgment has been affirmed by the Appellate Court for the First District. Appellant prosecutes a further appeal to this court to reverse the judgment below.

The declaration consists of five counts, in one or more of which it is alleged defendant negligently furnished and supplied plaintiff with an ‘old, insufficient, unsafe, and dangerous tool with which to work; that defendant was notified of the condition of said tool, and thereupon promised to repair the same, and induced the plaintiff to continue its use.’ The evidence shows that the appellee at the time in question was at work as a blacksmith in the shop of appellant, working with a helper by the name of Neunschwander, who was using what is known as a ‘backing hammer,’ the face of which had become somewhat chipped and out of repair. It further tends to prove that a few days before the accident the tool was shown to appellant's foreman by appellee, and complaint made as to its condition, and the foreman promised to have it fixed; that, on the day of the accident, appellee again took it to the same foreman, and asked him for the privilege of fixing it, complaining of its condition, to which the foreman replied: ‘Well, go ahead and use it now, and I will fix it, or get some one to fix it. Don't stop that job. I am in a hurry.’ Afterwards, while appellee and the helper were engaged upon the work, a small particle of steel flew from one of the hammers as the helper struck a blow, hitting appellee in one eye and destroying the sight. The jury specifically found that the chip or particle flew from the said backing hammer. At the close of plaintiff's evidence, and again at the close of all the evidence, the defendant requested the court to peremptorily instruct the jury to render a verdict of not guilty, but both instructions were refused, the refusal of which is assigned for error as a question of law. From a careful reading and consideration of the evidence, we find the only counts relied upon by plaintiff for a recovery were those alleging that the defendant negligently furnished the helper with an old, insufficient, and dangerous backing hammer with which to perform his duties, of which condition the defendant was notified, and promised to repair the same, or provide a suitable one in its place, and so induced the plaintiff to continue in the performance of the work.

It is first contended that the hammer at the time of the accident was, by reason of its condition, no more dangerous than it would have been, had it been redressed and repaired as requested by the plaintiff. There is evidence tending to show that a hammer in a worn and defective condition is somewhat more liable to chip off than one which is new or one newly repaired. On that proposition it cannot be said, as a matter of law, that there was no evidence tending to prove that a hammer in the condition described was no more dangerous than one in good repair.

Plaintiff was shown to have had a long experience in the handling of hammers of this character in his business as a blacksmith, and must be held to have assumed the ordinary risks incident to the use of the one in question. The theory and contention of his counsel are that he did not assume any risk arising from the defect complained of, for the reason that the appellant, by its foreman, promised to repair the hammer, or provide a new one for his use. On the other hand, it is contended by counsel for appellant that a promise to repair, which will excuse the person injured from assuming the risk incident to his employment, does not apply to a simple implement or instrument, such as the hammer in question. We think the latter contention is founded upon good reason and authority. The general rule is that when the master, on being notified by the servant of defects which render the service he is engaged to perform more hazardous, expressly promises to make the needed repairs, the servant may continue in the employment a reasonable time to permit the performance of the promise without being guilty of negligence, and if any injury results therefrom he may recover, unless he should continue in the employment when the danger is so imminent that no prudent man would undertake to perform the service. The promise of the master in such case relieves the servant from the charge of negligence by continuing in the service. This doctrine we have often recognized. Missouri Furnace Co. v. Abend, 107 Ill. 44, 47 Am. Rep. 425;Donley v. Dougherty, 174 Ill. 582, 51 N. E. 714, and cases cited. But the rule which exempts an employé from assuming the risk where a promise to repair is made is designed for the benefit of those engaged in work where machinery and materials are used of which the employé has little knowledge, but it does not apply to ordinary labor, which only requires the use of implements with which the employé is entirely familiar. Bailey on Personal Injuries, § 3103.

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