Crader v. St. Louis & San Francisco Railroad

164 S.W. 678, 181 Mo. App. 526, 1914 Mo. App. LEXIS 368

• Court: Missouri Court of Appeals
• Decided: March 3, 1914
• Status: Published

Opinion

ALLEN, J.

This is. an action for personal injuries sustained by plaintiff while in the employ of defendant railroad company. Plaintiff recovered and the defendant prosecutes the appeal.

At the time-of plaintiff’s injuries, to-wit, July 25, 1911, he was working for the defendant as a car repairer, at its car shops at Chaffee, Missouri. It appears that he had previously worked for the defendant in a similar capacity, but had been out of its employ for some years prior to May 22, 1911. After again entering defendant’s employ, on the last mentioned date, it seems that he was not in the car department until about seven and one-half days before he was injured ; that after being placed in the car department, he was engaged for six days in filling oil boxes of cars, and that a day and a half before he was injured, he began work as a car repairer.

When injured, plaintiff and a fellow workman, named Moit, were at work beneath a freight car doing-repair work upon the same. It appears that plaintiff, was endeavoring to drive an .old bolt out of a beam beneath the car, which bolt had been broken off about even or “flush” with the beam. He was working with a hammer known as a pin maul. The latter, it seems, weighed about three and one-half pounds, had a “hammer head” upon one side of the “eye” into which the handle fitted, and upon the other side thereof a sort of pin tapering toward the end. In order to force the bolt out of the beam, plaintiff placed the pointed end of this pin maul against it, and asked Moit to strike the face of the pin maul with a sledge. Moit struck the pin maul two or three blows, when a chip or piece of steel flew into plaintiff’s right eye, destroying the sight thereof, and necessitating its removal.

The negligence with which defendant is charged is that it furnished plaintiff with a pin maul with which to perform his work, which was defective and dangerous, in that it was improperly tempered and on that account brittle and fragile, and dangerous for use, when defendant knew, or by the exercise of ordinary care would have known, of such defect or insufficiency therein and of the dangerous character thereof.

Two experienced blacksmiths testified as experts in plaintiff’s behalf. Both of them testified that the pin maul was improperly tempered, and too hard, rendering it liable to chip off or shiver, causing pieces to fly therefrom when used. One of them, who had tested this particular hammer before the trial, stated that it was too hard for any use at all, except for cutting granite, and then could only be used with a light stroke or it would break;, that it was altogether too hard for punching bolts, driving nails or anything of that sort. One of these witnesses also testified that one could! not tell whether the instrument was properly tempered or not by looking at it, but that a simple test, such as using a file thereon, would reveal the same.

It appears that the pin maul was somewhat chipped from use, before plaintiff received his injury; but from the evidence its appearance seems not to have been such as to excite suspicion that it was dangerous for use. Plaintiff and his fellow workman had but little space within which to work beneath the ear. They were attempting to drive this bolt upward, out of the beam in question. Plaintiff testified that, owing to lack of room, Moit was able to draw the sledge back but a short distance, perhaps from eighteen inches to two feet; plaintiff saying that he could not tell just how long the stroke was. Mo.it testified that the length of the stroke was only about sixteen inches. Both testified that the blow was a straight one upon the face of the pin maul, and not a slanting blow. The testimony was that neither the face of the sledge, nor the face of the pin maul which received the blow, showed evidence of any fresh break or chipping off. No witness could say whether any chip or sliver came from the bolt; but there was a fresh break in the small end of the pin maul which was being held against the bolt, showing that it had chipped off or shivered.

Appellant earnestly contends that its demurrer to the evidence should have been sustained; that plaintiff wholly failed to make out a case entitling him to go to the jury, and that the trial court should have peremptorily directed a verdict for defendant.

I. The first reason assigned by appellant, why, as it says, its demurrer to the evidence should have been sustained, is that there was, as it is contended, an entire failure of proof that the pin maul in question was furnished plaintiff by defendant. The testimony respecting this question shows that the particular pin maul which plaintiff was using at the time was taken out of a'box of tools belonging to Moit, plaintiff’s fellow workman. Plaintiff testified that on the morning of the day preceding the accident, he was directed by the foreman, one Lundy, to go to work repairing cars; that plaintiff had no tools, and that he was told by the foreman to work with Moit and that Moit had the tools to work with. It appears that Moit had a box of tools of his own which he had purchased from one Rumley, and it is said that this pin maul was among the tools which he thus received from the latter. Moit testified that the maul did not belong to him. He undertook to testify to what Rumley had said as to where the maul came from, but such testimony was excluded. The maul, however, was exactly like others which were furnished by the defendant for the use of its employees.

It seems that the tools used by defendants’ employees were regularly kept in a certain car, called the carpenters ’ car, which was kept standing at a particular place for this purpose; that Moit kept there the box of tools which he had purchased from Rumley, and in which it seems was this particular maul; that upon the morning when plaintiff began this repair work the maul was thus among Moit’s tools, and that plaintiff used it in such ways as he found convenient, or as he. thought suitable for the work in hand, up until the time of his injury.

It is argued that the evidence fell short of showing where the pin maul came from; that it did not appear that it was owned by the defendant company or that it was furnished to plaintiff with which to do his work. This argument might be very persuasive were it not for the fact that plaintiff testified very positively that on the morning before his injury, when he was put to doing repair work upon cars, and had no tools therefor, he was told by the foreman to go to Moit and use Moit’s tools for such purpose. This, in point of fact, was not denied by the foreman, for the latter in testifying stated, that he could not recall what instructions he gave to the plaintiff, at the time in question. But had it been denied by the foreman, it would still have been a question for the jury. If defendant’s foreman directed plaintiff to use.such tools as Moit had, this was in fact a furnishing of such tools to plaintiff for his work. It matters not whether defendant owned the instrument in question or not, nor where it originally came from, if defendant furnished it to plaintiff with which to do his work. There is ample evidence that defendant did thus furnish it to plaintiff. For defendant’s foreman to direct plaintiff to get from Moit the tools with which he was to work, was in all respects tantamount to supplying him with such tools.

The evidence, as a whole, tends very strongly to support the inference that this particular maul belonged to the railroad company. It was a maul precisely like others used by defendant at its car shops' and supplied to its workmen; and there was evidence that this particular maul had been used by other employees of defendant. Moit stated that he did not own it, though he had been keeping it, for his use, among other tools which he kept in the tool car. But, however this may be, it is quite clear that the tool in question must be regarded as having been furnished and supplied to the plaintiff with which to perform the work required of him by the 'master; and it is wholly immaterial who actually owned it.

II. Appellant says that the risk of injury from a flying splinter from the pin maul was one assumed by plaintiff. This, however, can not be true if there is any substantial evidence of negligence on the part of the defendant with respect to furnishing plaintiff with reasonably safe appliances with which to do his work. Where negligence is shown on the part of the master, a recovery can not be denied the servant on the ground of assumption of risk, though he may be precluded by reason of his contributory negligence. It is well settled that a servant does not assume the risks of perils and dangers arising from the negligence of the master, but assumes only those risks which are naturally incident to the employment, and which inhere therein, after the master has performed his whole duty in the premises. [See Jewell v. Bolt & Nut Co., 231 Mo. 176, 132 S. W. 703; Jarrell v. Coal Co., 154 Mo. App. 552, 136 S. W. 754; Bradley v. Coal Co., 167 Mo. App. 177, 151 S. W. 180; Dales v. Railroad, 169 Mo. App. 183, 152 S. W. 401; Bliesner v. Distilling Co., 174 Mo. App. 139, 157 S. W. 980, and further authorities cited.]

III. It is also urged that the pin maul was a common tool, to which the duty of inspection hy the master does not apply. But we are not impressed with this argument, in the particular case, for the reason that there was a defect in the tool here in question, if plaintiff’s evidence be true, which plaintiff could not have discovered by such an examination thereof as he would be required to make to discover defects or insufficiencies therein. The doctrine which appellant seeks to invoke has here no application. There are many cases in which recovery has been denied the servant for injuries received by reason of defects or insufficiencies in common tools; as where the .servant’s means of knowledge was equal to or greater than that of the master with respect to the condition of the tool, or where the-servant was charged with a duty to repair. But obviously the instant ease does not fall within the principles governing such cases.

IV. It is further urged that the evidence leaves it to conjecture as to whether plaintiff was injured by a sliver from the pin maul or by one from the bolt which he was attempting to remove from the beam. [See Modlagl v. Iron & Foundry Co., 248 Mo. 587, 154 S. W. 752.] There was evidence of a fresh break in this end of the pin mau'l, showing that a piece or pieces had chipped off therefrom. On the other hand there is no evidence that anything chipped or flew from the bolt which plaintiff was attempting to remove. The latter was broken off so that it was “flush” with the surface of the beam, and when plaintiff was injured the pin maul had been placed. directly upon this end of the bolt. There is nothing to justify an inference that anything flew from the bolt itself. The piece of metal which flew into plaintiff’s eye, which is said was of steel, had been preserved and was in evidence before the jury. And upon the whole the evidence was ample to justify a finding that this piece of metal came from the small end of the pin maul, which was chipped or shivered.

V. The most serious contention, however, of appellant is that the pin maul was not designed or intended to he used as a punch for removing holts; and that plaintiff in attempting to drive out a bolt with it, as he did, utilized it for a purpose for which it was not furnished him, and that his injury resulted from such negligent and improper use thereof.

It is quite true that the master is not liable for the negligent use by a servant of an appliance furnished him, nor for injuries resulting proximately from the use of such an appliance for a purpose for which it was not intended or supplied him. That is to say, if a master furnishes a tool which is reasonably safe for the purposes for which it is intended, and the servant negligently subjects it to a use for which it is not appropriate, and which the master has not directly or impliedly authorized-the servant to do, whereby it is subjected to a strain beyond its capacity and breaks, causing injury to the servant, such injury will be imputed to the negligence of the servant in improperly using the tool. [See Moran v. Brown, 27 Mo. App. 487; Rogers v. Packing Co., 167 Mo. App. 55, 150 S. W. 556.]

Touching this matter, Moit, plaintiff’s colaborer, testified that driving bolts was not the proper use for the pin maul, though' it was frequently thus used. Defendant’s foreman testified that the instrument was not designed or intended for such purpose, but “for driving spikes, lag screws and like work of that kind. ’ ’ However, plaintiff testified, in effect, that it was an appropriate instrument to be used forsuch purpose; that when he had previously worked with the company, such pin mauls were commonly used for removing bolts as well as- for any other purposes for which they appeared to be suitable. Hpon this- occasion, he had been engaged in this particular work for hut a day and a half before receiving his injury, and during such time-it appears that he made use of the pin maul in such ways (including driving out bolts) as he had'done when previously employed by defendant in the same character of work, and as he had seen such instruments used by other workmen.

There can be no doubt, we think, that the evidence was such as to make this question one for the jury; for it tends to reveal the fact that these pin mauls were commonly used for purposes such as driving out bolts, though it may be that they were intended primarily for other purposes, as defendant contends. Plaintiff’s testimony, coupled with the other facts and circumstances in evidence, makes, the question one, we think, which can not be passed upon, as a matter of law; for, under the evidence, we could not say, as a conclusion of law, that plaintiff’s injury was the result of an improper use of the tool. It would appear from plaintiff’s evidence that such a pin maul was reasonably appropriate for use in driving out bolts; that it might be safely used for such purpose provided it was properly tempered; and that it was provided by defendant for work of this character as well as for other purposes. There is evidence that this particular pin maul, however, was so tempered that it was too brittle for any use to which plaintiff might .have put it. It seems that the blow, which caused it to chip or shiver, was struck by swinging the sledge only some sixteen inches; and it may be inferred that it was not of sufficient force to have caused á steel instrument of this character to shiver or break off, provided the latter was tempered so as to be reasonably safe for use as a tool. We think that the matter was one to be referred, to the jury; and it was so referred by an instruction given at defendant’s request.

VI. A careful review of the evidence has convinced us that the ruling of the trial court upon defendant’s demurrer was proper. The evidence tends to establish the negligence with which defendant is charged. There can be no doubt that to furnish the servant with a tool as hard and brittle as plaintiff’s evidence tends to show this pin maul was, is a breach of the master’s duty owing to the servant. Plaintiff’s evidence indicates that the pin maul was so fragile as to be highly dangerous for any use to which plaintiff might have put it; that this, however, could not be discerned by looldng at it, and hence was not readily discoverable by plaintiff; whereas a simple test by defendant would have revealed the dangerous character of the instrument. Such being the case, there can be no doubt, we think, that the evidence was sufficient, to make a case entitling plaintiff to go to the jury. [See Johnson v. Railway Co., 96 Mo. 340, 9 S. W. 790; Duerst v. Stamping Co., 163 Mo. 607, 63 S. W. 827; Goransson v. Manufacturing Co., 186 Mo. 300, 85 S. W. 338; Franklin v. Railway Co., 97 Mo. App. 473, 71 S. W. 540; Robbins v. Mining Co., 105 Mo. App. 78, 79 S. W. 470; Dales v. Railroad Co., supra.]

VII. It is urged that it was error for. the trial court to permit the two blacksmiths, over defendant’s objections, to give in evidence their opinions respecting the temper of the pin maul. As to this defendant relies upon Guthridge v. Railway, 94 Mo. l. c. 472, 473, 7 S. W. 476; and Hurt v. Railway, 94 Mo. l. c. 260; 7 S. W. 1. But we think these cases are not authority for appellant’s contention. In the former, it was said that “there was no fact in the case which, for its solution, called for scientific or professional knowledge, or for any peculiar knowledge or experience;” that “it was, therefore, not a case for expert evidence.” In the the latter ease it was held that a witness, not testifying as an expert, but merely.as to matters with which the jury may well be supposed to be as conversant as himself, and as capable of drawing a correct conclusion, should not be allowed to give, an opinion.

The witnesses here were clearly experts, and qualified as such. And it cannot be doubted that the subject was one calling for expert testimony, for it cannot be said that the jurors were as capable of forming a conclusion as to the proper temper of a maul as blacksmiths of long experience and possessed of practical knowledge respecting such matter. [See Johnson v. Railway Co., supra.]

VIII. The first instruction given for plaintiff is assailed upon the ground that it makes the master an insurer of the appliance furnished to the servant. This is predicated upon the wording of the earlier part of the instruction, which told the jury that it was the duty of the defendant to furnish its employees with mauls and appliances that were reasonably safe, etc.; whereas, defendant’s duty was only to exercise ordinary care to that end. This assignment of error, however, is fully covered by what we said in Pendegrass v. Railway Co., 179 Mo. App. 517, 162 S. W. 712, where the identical question was. under consideration. Iiere, as there, other portions of the instruction, as well as other instructions given in the case, fully cured the error, if any, complained of, [See also Girard v. Coal & Coke Co., 207 Mo. 242, 105 S. W. 767.]

IS. The only remaining assignment of error which we need to notice pertains to the amount of the verdict, to-wit, $6500. It -is urged that it is grossly excessive, and so much so as to indicate that it was: the result of passion and prejudice, and should not be permitted to stand.

At the time of plaintiff’s injury he was twenty-seven years of age, of goodi health and vigor; and, according to the evidence adduced in his behalf, his eyesight was good. As a result of his injury, he lost his right eye entirely; and he testified that the sight of his left eye had been thereby much impaired. He testified that he suffered great pain, both before and after the operation by which his right eye was removed; that he continued to suffer pain and aching in and about the socket from which the right eye had been removed, and in his left eye as well, even down to the time of the trial. While there was evidence of past loss of earnings, plaintiff’s instruction given on the measure of damages did not include any recovery for loss of earnings either in the past or the future.

A, consideration of this assignment of error has led us to the conclusion that we ought not to interfere with the jury’s verdict. It is true the verdict is rather large, but it does not appear to be so grossly excessive as to warrant us in saying that it appears upon its face to be the result of passion and prejudice. And whatever may be said of our right to compel a remittitur, in a proper case, we feel that it does not here so clearly appear that this verdict is excessive as to call for the exercise of such power. In view of the fact that the plaintiff has lost one eye, and that there is evidence that the sight of his other eye has been greatly impaired by reason of his injury, we think that the jury’s verdict cannot well be said to be beyond all reasonable bounds, calling for interference by this court.

For the reasons given above the judgment of the circuit court is affirmed. It is so ordered.

Reynolds, P. J., and Nortoni, J., concur.