Ten Mile Lumber Co. v. Garner

78 So. 776, 117 Miss. 814

Opinion

Ethridge, J.,

delivered the opinion of the court.

“Ester Garner, a minor of nineteen years of age,, was employed by the Ten Mile Lumber Company, a corporation, and was engaged with a track and bridge-crew of the said company with his father, who was also an employee of the company. In the course of the-work on a bridge on one of the lines of the company a peavey, or cant hook, was bent to an extent that it needed straightening or repairing. Some of the employees of the company and the appellee undertook to repair the cant hook by laying the hook upon a steel maul and striking the hook, to straighten it, with an axe. While this was being done, the appellee held the cant hook in position, and a piece of the steel from the maul struck appellee in the eye, inflicting a permanent injury, for which the appellee sued the appellant and recovered judgment. It appears in the evidence that the steel maul was used for the purpose of driving spikes in railroad cross-ties to hold rails in position, and also in driving bolts to hold the rails in position where they were joined together and connected. The crew having this maul, and it having become damaged and unfit for use for that purpose, came to the crew of which appellee was a member and borrowed a steel maul which they had, they being at the time engaged in work on a bridge. The steel maul was not used in the work in the present case as a maul, but was used to place the hook upon while it was being struck with an axe. It appears in the evidence that the company maintained a blacksmith shop for the repair of tools, and that the appellee and his witnesses testified that the proper place to repair the peavey, or cant hook, was at the blacksmith shop. The appellant requested a peremptory instruction, and assigns for error the refusal of the court below to grant this instruction.

It appears that the defect was not in the axe or in the cant hook, but that it was in the maul, and that the maul was not being used for the purpose for which it was assigned for use by the company, and that the axe was not a proper instrument to use in repairing a peavey, or cant hook. This case is governed by the case of Illinois Central R. R. Co. v. Daniels, 73 Miss. , 19 So. 830, where the court laid down the following rule:

“An employer is not liable in damages to one of its employees where the injury resulted from putting one of the appliances supplied to a use for which it was not intended in an improper manner.”

See, also, Vicksburg etc., Co. v. Vaughn, 27 So. 599; Capital City Oilworks v. Black, 70 Miss. 8, 12 So. 26; Hatter v. Railroad Co., 69 Miss. 642, 13 So. 827; Railroad Co. v. Bennett, 111 Miss. 163, 71 So. 310.

It further appears that whatever defect there was in the cant hook was caused by its being bent in the course of work, and it does not appear that there was any notice of this defect brought to the attention of the master, or any neglect on the part of the master in-having it properly repaired. The appellant, having-undertaken to repair this tool under these circumstances,, was not entitled to recover from the master, and the-peremptory instruction should have been given. .

The judgment is reversed, and the cause dismissed.

Reversed..