Summary
In Newman Lumber Co. v. Cameron, 179 Miss. 217, 174 So. 571 (1937), this Court had before it a judgment in favor of plaintiff for $30,000 for personal injuries.
Summary of this case from Gillis v. SonnierOpinion
No. 32650.
May 31, 1937. Suggestion of Error Overruled July 19, 1937.
1. MASTER AND SERVANT.
In action against employer for injuries sustained by employee while holding a short chisel which was being struck with heavy maul by helper, on ground that chisel, which foreman negligently required employee to use, was dangerous tool, employer was not entitled to directed verdict on ground that chisel and maul were simple tools and that employee assumed risk, since under statute servant does not assume risk where master is negligent (Code 1930, section 513).
2. MASTER AND SERVANT.
The master is not relieved of liability for injury from use of unsafe tools, though servant may have been as competent as master to determine suitability thereof for performance of required work, where servant is bound to obey order or subject himself to discipline for insubordination, since statute abolishes doctrine of assumption of risk when master is negligent (Code 1930, section 513).
3. APPEAL AND ERROR.
The Supreme Court was not required to determine whether instructions complained of by appellant were erroneous, where, though erroneous, they would not justify setting aside of verdict, which was manifestly correct.
4. DAMAGES.
$30,000 for injury to head which shortly thereafter caused employee to become totally blind was not excessive.
APPEAL from the circuit court of Forrest county. HON.W.J. PACK, Judge.
Heidelberg Roberts and Lamar Hennington, of Hattiesburg, and Watkins Eager, of Jackson, for appellant.
The court below committed error in refusing to grant the defendant a peremptory instruction. There was no negligence for failure of the master to furnish a suitable or safe "simple tool."
Allen Gravel Co. v. Yarbrough, 133 Miss. 652, 98 So. 117; Bear Creek Mill Co. v. Fountain, 94 So. 230; Hammontree v. Cobb Construction Co., 168 Miss. 844; Harley v. Buffalo Car Mfg. Co., 36 N.E. 813; Jones v. Southern United Ice Co., 167 Miss. 886, 150 So. 652; Karras v. Railroad Co., 162 N.W. 923; 13 L.R.A. (N.S.) 671-674 and 676-678; 40 L.R.A. (N.S.) 832; McGinnis v. Canada Southern Bridge Co., 13 N.W. 819; Middleton v. National Box Co., 37 F.2d 89; Mitchell v. Brooks, 147 So. 660, 165 Miss. 826; Phillips v. Chicago, etc., R. Co., 227 N.W. 931; Post v. Chicago, etc., R. Co., 97 S.W. 233; Wausau Southern Lbr. Co. v. Cooley, 94 So. 228, 130 Miss. 333.
Plaintiff failed to prove any negligence on the part of the defendant arising from the employment of a competent fellow servant.
Hines v. Green 125 Miss. 476, 87 So. 649; Ingram Day Lbr. Co. v. Joh, 64 So. 934, 107 Miss. 43; Southern Lbr. Co. v. May, 102 So. 854, 138 Miss. 27, 103 So. 363; Vanner v. Dalton, 159 So. 558, 172 Miss. 183.
The court committed error in refusing the defendant the instruction that it was not negligent in not using an acetylene torch on the occasion in question since the master is not negligent for a failure to furnish the safest, newest and best obtainable equipment.
Columbus, etc., R.R. Co. v. Coleman, 172 Miss. 514, 160 So. 217; Hammontree v. Cobb Construction Co., 152 So. 279, 168 Miss. 844; Hand v. Boatner, 94 So. 162, 130 Miss. 292; Jones v. Y. M.V.R. Co., 44 So. 813, 90 Miss. 457; Kent v. Railroad Co., 77 Miss. 494, 27 So. 620; Mitchell v. Brooks, 147 So. 660, 165 Miss. 826; Mobile Ohio R. Co. v. Clay, 125 So. 819, 156 Miss. 463; Morgan Hill Paving Co. v. Morris, 133 So. 229, 160 Miss. 79; Newell Contracting Co. v. Flynt, 161 So. 298, 172 Miss. 719; Seifferman v. Leach, 138 So. 563, 161 Miss. 853; Vehicle Woodstock Co. v. Bowles, 128 So. 99, 158 Miss. 346.
An appellate court must look over the entire testimony, and if the verdict is against the overwhelming weight or clearly against the preponderance of the evidence, will remand the same for a new trial.
Barbee v. Reese, 60 Miss. 906; Beard v. Williams, 161 So. 750, 172 Miss. 880; Clark v. Moyse Bros., 49 Miss. 721; Columbus, etc., R. Co. v. Buford, 116 So. 817, 150 Miss. 832; Fore v. I.C.R.R. Co., 160 So. 903, 172 Miss. 451; Justice v. State, 170 Miss. 96, 154 So. 265; McFadden v. Buckley, 53 So. 351, 98 Miss. 28; M. O.R. Co. v. Johnson, 141 So. 581, 165 Miss. 397; M. O.R. Co. v. Bennett, 90 So. 113, 127 Miss. 413; Sims v. McIntyre, 8 S. M. 324; Y. M.R. Co. v. Pittman, 153 So. 382, 169 Miss. 667.
The trial court committed error in refusing the defendant the instruction that it was not negligent in not using a cleaver to cut the particular nut being cut and in not holding as a matter of law that there was no liability therefor since, not only is the evidence that plaintiff could have used a cleaver contrary to the great weight of the evidence, thus justifying a new trial, but the undisputed evidence establishes physical facts which show that the cleaver could not have been used for that particular act and a jury verdict contrary thereto would not be permitted to stand since it would be inconsistent with admitted physical facts and with natural laws and common knowledge.
A master is not negligent for failing to furnish an impracticable or impossible tool or using unreasonable or impractical means or methods.
Conklin v. Central Tel. Tel. Co., 114 N.Y.S. 190; Hammontree v. Cobb Const. Co., 152 So. 279; 168 Miss. 852; Huskey v. Heinie Safety Boiler Co., 173 S.W. 16; Jones v. Y. M.V.R.R. Co., 44 So. 813, 90 So. 547; Mitchell v. Brooks, 147 So. 660; Morgan Hill Paving Co. v. Morris, 133 So. 229, 160 Miss. 79; Newell Contracting Co. v. Flynt, 161 So. 298, 172 Miss. 719; Seifferman v. Leach, 161 Miss. 853, 138 So. 563; Woodstock v. Bowles, 158 Miss. 346, 128 So. 99.
A master is only liable for negligence not for danger and an employee assumes the risk of all danger incidental to the character of the employment where there is no negligence.
Anderson-Tully Co. v. Goodin, 163 So. 536, 174 Miss. 162; Eastman Gardiner Hwd. Co. v. Chatham, 151 So. 556, 168 Miss. 471; Section 513, Code of 1930; Morgan Hill Paving Co. v. Morris, 133 So. 229, 160 Miss. 79; Newell Contracting Co. v. Flynt, 161 So. 298, 743, 172 Miss. 719; Seifferman v. Leach, 138 So. 563, 161 Miss. 853; Vehicle Woodstock Co. v. Bowles, 128 So. 98, 158 Miss. 346; Wilbe Lbr. Co. v. Calhoun, 163 Miss. 80, 140 So. 680.
The burden of proving by a preponderance of the evidence negligence of the defendant was upon the plaintiff, and from the statement of facts it is clear that the burden was not sustained and that the most favorable deduction that could possibly be made from plaintiff's evidence is a probability that the cleaver might be used. A jury verdict cannot be based upon conjecture. A verdict cannot be based on evidence contrary to known physical facts.
A. V.R. Co. v. White, 63 So. 345, 106 Miss. 141; Burnside v. Gulf Refining Co., 148 So. 219, 166 Miss. 460; Dr. Pepper Bottling Co. v. Gordy, 164 So. 236, 174 Miss. 392; Elliott v. G.M. N.R.R. Co., 145 Miss. 768, 111 So. 146; G.M. N.R. Co. v. Collins, 151 Miss. 240, 117 So. 593; Gulfport Creosoting Co. v. White, 157 So. 86, 171 Miss. 127; Hand v. Boatner, 130 Miss. 292, 94 So. 162; Hercules Powder Co. v. Calcote, 138 So. 583, 161 Miss. 850; I.C.R. Co. v. Jones, 16 So. 300; I.C.R. Co. v. Humphreys, 170 Miss. 840, 155 So. 421; James v. Y. M.V.R.R. Co., 121 So. 819, 153 Miss. 776; Michelson v. Nebraska Tire Rubber Co., 63 F.2d 597; M. . O.R. Co. v. Johnson, 141 So. 582; Railroad Co. v. Coleman, 160 So. 277, 172 Miss. 514; Railroad Co. v. Holsomback, 151 So. 720, 168 Miss. 493; Shell Petroleum Corp. v. Eagle Lbr. Co., 158 So. 331, 171 Miss. 539; Standard Brewery v. Lynch, 195 Ill. App. 445; S.H. Kress Co. v. Sharp, 126 So. 650, 156 Miss. 693; Tyson v. Utterback, 122 So. 496, 154 Miss. 381; United States v. Harth, 61 F.2d 541; Universal Truck Loading Co. v. Taylor, 164 So. 3; Waldmann v. Construction Co., 233 S.W. 242; Williams v. Lumpkin, 152 So. 842, 169 Miss. 146; Y. M.V.R. Co. v. Green, 147 So. 333, 167 Miss. 137.
The court committed error in giving the plaintiff the first instruction. The instruction assumed as a fact that the chisel bar was not a suitable and proper instrument to do the work with and was not reasonably safe.
Griffith v. Griffith, 46 So. 945, 93 Miss. 651; D'Antoni v. Albritton, 126 So. 836, 156 Miss. 758; Eagle Cotton Oil Co. v. Pickett, 166 So. 764; Jackson Light Traction Co. v. Taylor, 72 So. 856, 112 Miss. 60; Priestley v. Hays, 112 So. 788, 147 Miss. 843.
Even if it could be said that the instruction submits to the jury for determination the question of whether the chisel was a suitable and proper and reasonably safe tool, which is denied, still the instruction is erroneous in that it permits the plaintiff to recover if the chisel was not "reasonably safe;" thus, permitting plaintiff to recover for the furnishing of a defective simple tool.
This instruction makes it the absolute duty of defendant to furnish a suitable, proper and safe tool, rather than making the ground of liability the failure to use reasonable care to furnish a reasonably safe, suitable and proper tool.
Anderson v. McGrew, 122 So. 492, 154 Miss. 291; Barron Motor Co. v. Bass,, 150 So. 202, 167 Miss. 786; Columbus, etc., R.R. Co. v. Coleman, 160 So. 277, 172 Miss. 514; Creosoting Co. v. White, 171 Miss. 127, 157 So. 86; Eagle Cotton Oil Co. v. Pickett, 166 So. 765; Hammontree v. Cobb Construction Co., 152 So. 279, 168 Miss. 844; Hooks v. Mills, 101 Miss. 91, 57 So. 545; 3 Labatt's Master Servant 2d par. 920; Mitchell v. Brooks, 147 So. 660, 165 Miss. 826; New Orleans, etc., R.R. Co. v. Penton, 100 So. 521, 135 Miss. 571.
The court committed error in giving the following instruction at the instance of the appellee: "The court instructs the jury for the plaintiff that it is not necessary that he should prove that the negligence of the defendant, if any, was the sole proximate cause of his injuries, if any, but under the law, if the negligence, if any, of the defendant proximately contributes in any manner or any degree to his injuries, if any, then the defendant is liable."
The foregoing instruction was erroneous, damaging to the appellant, and constitutes reversible error.
The instruction informs the jury that it was not necessary that appellee prove that the defendant's negligence was the sole proximate cause of the appellee's injury, but that if the defendant's negligence contributed in any manner or in any degree, the defendant would be liable. The instruction is erroneous in that the negligence referred to should have been confined to that complained of or proven. The instruction enabled, and in fact authorized, the jury to explore the entire range of conjecture and find, if it might, whether complained of in the declaration or established by the evidence or not, negligence, however slight or remote, and justify a verdict for the appellant thereupon. The jury were not required to find the existence of such negligence as might contribute in any manner or in any degree from the evidence in the case; nor was such negligence confined to that complained of in the appellee's declaration.
Burnside v. Gulf Refining Co., 148 So. 219, 166 Miss. 460; 45 C.J., 666; Davis v. Waynesboro Hardware Co., 118 So. 541, 151 Miss. 532; Hackett v. Ry. Co., 124 N.W. 1018; I.C.R. Co. v. Wright, 100 So. 1, 135 Miss. 435; Knickerbocker Ice Co. v. Leyda. 28 Ill. App. 67; L. N.R. Co. v. Slushers Admr., 290 S.W. 677; Majers v. Okolona, Houston Calhoun City R. Co., 165 So. 416, 174 Miss. 860; People v. Campbell, 212 N.W. 97; Putney v. Keith, 98 Ill. App. 289; Restatement, Law of Torts, pars. 430, 431, pp. 1157-1159; Solomon v. Continental Baking Co., 160 So. 732, 172 Miss. 388; Thompson v. Miss. Central R.R. Co., 166 So. 353, 175 Miss. 547; Y. M.V.R.R. Co. v. Smith, 82 Miss. 656.
The appellee has not established from a preponderance of the evidence that the loss of his eyesight was due to the accident complained of. Upon the other hand, the overwhelming preponderance of the testimony establishes that the appellee's loss of sight was due to influenza, or some other cause producing germs in the blood stream, and which had no relation to the injury suffered by appellee.
Beard v. Williams, 161 So. 750, 172 Miss. 880; Columbus Light Power Co. v. Downs, 106 So. 593; Edenfield v. Wheeles, 151 So. 659; Grant v. New Orleans Railroad Light Co., 56 So. 897; Kress Co. v. Sharp, 156 Miss. 693, 126 So. 650; Woolworth Co. v. Volkin, 135 Miss. 410,, 100 So. 3; Y. M.V.R. Co. v. Boone, 111 Miss. 881, 72 So. 777.
Currie Currie, of Hattiesburg, for appellee.
The liability of the appellant is clear and unavoidable upon the following grounds, all of which are charged in the declaration and established by the evidence: (1) The negligence of the appellant in failing to provide and furnish the appellee fit, suitable and proper tools with which to do the particular work in hand and then and there required of him. (2) The negligence of the car foreman and vice-principal of the appellant in knowingly ordering and requiring the appellee to do said work with said unfit, unsuitable, improper, unsafe and dangerous tool or chisel bar. (3) The negligence of the appellant in providing and furnishing the appellee a dangerous place in which to do the particular work then and there required of him. (4) The negligence of the car foreman and vice-principal of the appellant in negligently ordering and sending the appellee into said dangerous place to do said dangerous work with said unfit, unsuitable, improper, unsafe and dangerous tool or chisel bar.
In full and complete support of each and all of the foregoing grounds of liability, we cite the following authorities, without quoting from the same, because the court will wish to read and study them for itself, and will do so, and we submit them as conclusive on the questions of negligence and liability:
Cotton Mill Products Co. v. Oliver, 153 Miss. 362, 121 So. 111; Goodyear Yellow Pine Co. v. Mitchell, 168 Miss. 152, 149 So. 792; Jefferson v. Denkman Lbr. Co., 167 Miss. 246, 148 So. 237; G. S.I.R.R. Co. v. Bryant, 147 Miss. 421, 111 So. 451; St. L. S.F.R. Co. v. Guin, 109 Miss. 187, 68 So. 78; Orman v. Mannix, 17 Colo. 564; Illinois Steel Co. v. McFadden, 196 Ill. 344; Henry v. Sioux City Pac. Ry. Co., 75 Iowa 84; Long v. I.C.R.R. Co., 113 Ky. 806; Noble v. John L. Roper Lbr. Co., 151 N.C. 76; Shortel v. City of St. Joseph, 104 Mo. 114; Harrison v. Detroit, Lansing, Northern R.R. Co., 79 Mich. 409; Pittsburg, etc., R.R. Co. v. Schaub, 136 Ky. 652; Pullman Co. v. Geller, 128 Ky. 72; Southern Ry. Co. v. Shields, 121 Ala. 460; Vant Hul v. Great Northern R. Co., 90 Minn. 329; Byrne v. Eastmans Co., 163 N.Y. 461; Noble v. Bessemer Steamship Co., 127 Mich. 103; Chicago, etc., R. Co. v. Blevins, 46 Kan. 370; Baltimore, etc., R. Co. v. Amos, 20 Ind. App. 378; Johnson v. Mo. Pat. R. Co., 96 Mo. 340.
The simple tool rule can have no application to the appellee in this case, under the facts in his case, in any view, even if that rule were involved in the case, but is not involved in the case. The negligence charged on the tool is that it was an unfit, unsuitable and improper tool.
3 LaBatt's Master Servant (2 Ed.), page 2483; B. O.S.W.R. Co. v. Walker, 41 Ind. App. 588; Campbell v. T.A. Gillespie Co., 69 N.J.L. 279.
Not only could no assumption of risk arise under the facts and circumstances of this case, but any assumption of risk which might arise from such facts and circumstances, was abolished by section 513, Mississippi Code of 1930.
Sections 511, 512, 513, Code of 1930.
Our investigations and research in this case show that the courts are practically uniform in refusing to apply the simple tools rule to a case like this.
New York N.H. H.R. Co. v. Vizvari, 210 Fed. Rep. 118.
The contention of the appellee was and is that said chisel bar was inherently — within itself — unfit, unsuitable, improper and dangerous with which to do the particular work in hand and then and there required of him, and that it never was a fit, suitable and reasonably safe tool with which to do said work, because it was too short, and necessarily subjected him to danger all the time when being used in the manner necessary to use it in doing said work, and we respectfully submit that the simple tools rule is not involved.
1 Bailey's Personal Injuries, page 347; McIntyre v. Boston M.R. Co., 163 Mass. 189, 39 N.E. 1012; Bushby v. New York, etc., 107 N.Y. 374; Port Blakely Mill Co. v. Garrett, 97 Fed. 537; Coats v. Boston Maine R. Co., 153 Mass. 297; Laning v. New York Central R. Co., 49 N.Y. 521; Krueger v. Bartholomy Brewing Co., 94 App. Div. 58, 97 N.Y.S. 1054.
The law is settled in this state that it is the duty of the master to exercise reasonable care to provide and furnish his servant with reasonably fit, suitable, proper and safe tools, instrumentalities and appliances with which to do the particular work required of his servant.
E.L. Bruce Lbr. Co. v. Brogan, 166 So. 350; Cotton Mill Products Co. v. Oliver, 153 Miss. 362, 121 So. 111.
It is now settled law in this state that the same duty which rests upon a master with reference to inanimate tools, equipments and appliances applies to horses, mules and oxen used by the master in the conduct of his business.
McCready v. Stepp, 78 S.W. 671; Nooney v. Pacific Exp. Co., 208 Fed. 274.
Negligence of a master in furnishing a defective tool, implement or appliance is one character of negligence.
Negligence of a master in furnishing an unfit, improper and unsuitable tool, implement or appliance with which to do particular work requested of his servant is another character of negligence.
The negligence charged in the appellee's case is negligence in furnishing an unfit tool, and the order of the car foreman to the appellee, to use it, knowing it was unfit and dangerous, and the actual case presented by the record in this case is substantially without defense, and it cannot be switched, side tracked or distorted into a case of defects in simple tools. A strained effort is made by the appellant in its brief to do that, but the distinction is clear, and this case is bottomed firmly in the record, on the charge of negligently and knowingly furnishing an unfit, unsuitable and improper tool, and requiring the appellee to work with it, by direct order, "or else."
In support of our contention that the appellant was not entitled to a peremptory instruction in this case or on any issue in it, we cite the following authorities:
Washington Georgetown R.R. Co. v. McDade, 34 Sup. Ct. Rep. 235; Sioux City Pac. R.R. Co. v. Stout, 21 Sup. Ct. Rep. 745; Richmond Danville R.R. Co. v. Powers, 37 Sup. Ct. Rep. 642; Liberty Bell Gold Mining Co. v. Smuggler-Union Mining Co., 203 Fed. 795; Hammontree v. Cobb Construction Co., 152 So. 279.
It is actionable negligence on the part of a master to fail to furnish his servant with such proper tools and appliances as may be required for the reasonably safe prosecution of the work.
39 C.J., 326, par. 447; E.L. Bruce Co. v. Brogan, 166 So. 354.
The instructions in the case requested by and granted the appellee restricted his case and pinned the jury right down to the one issue whether or not the chisel bar was within itself a fit, suitable and proper tool with which to do the particular work in hand and then and there required of him by the appellant.
These instructions clearly and correctly stated the law and are supported by the following authorities:
Newell Contracting Co. v. Flynt, 161 So. 298; Cotton Mill Products Co. v. Oliver, 153 Miss. 362, 121 So. 111; E.L. Bruce Co. v. Brogan, 166 So. 350; Mercer v. Atlantic Coast Line R.R. Co., 154 N.C. 399, 70 S.E. 742; New York, etc., R. Co. v. Vizvari, 210 Fed. 118.
The appellant was the master and L. Williams was its car foreman, and the appellee was the servant and was subject to the orders of the appellant and its said car foreman.
The duties of the servant to his master during his service must, generally speaking, depend in a great measure upon the nature of his employment, his master's business, and the contract he has entered into with his master. There are, however, many duties which are implied by law from the relationship of master and servant, and are binding upon all servants. Thus every servant is bound to obey all the lawful orders of his master.
3 Smith, Master Servant, page 69, par. 65, and page 109, par. 121; East Tenn., etc., R. Co. v. Duffield, 12 Lea. 63, 47 Am. Rep. 319; 18 R.C.L., par. 149, page 655-7; Tagg v. McGeorge, 155 Penn. St. 368; Mastin v. Levagood, 47 Kans. 36; Sawyer v. Rumford Falls Paper Co., 90 Maine 354.
The duty of a master to exercise ordinary care to furnish reasonably proper tools to his servants applies to simple as well as complicated tools.
Mercer v. Atlantic Coast Line R.R. Co., 154 N.C. 399, 70 S.E. 742; E.L. Bruce Co. v. Brogan, 166 So. 350; Cotton Mill Products Co. v. Oliver, 153 Miss. 362, 121 So. 111; 3 Labatt's Master Servant (2 Ed.), page 2483; Baltimore O.S.W.R. Co. v. Walker, 41 Ind. App. 588, 84 N.E. 730.
The whole case, and every material issue in the case, is overwhelmingly established, and the appellant was borne down under the crushing weight of the evidence delivered against it in the case.
Hemming v. Rawlings, 144 Miss. 643, 110 So. 118; Sunflower Bank v. Pitts, 108 Miss. 380, 66 So. 811; Porter v. Nesmith, 124 Miss. 517, 87 So. 5; Rogers v. Whitehead, 127 Miss. 21, 89 So. 779.
The appellee was entitled to a peremptory instruction and the appellant cannot complain of errors in the instructions.
Whitley v. Holmes, 164 Miss. 423, 144 So. 48; Hercules Powder Co. v. Tyrone, 124 So. 74, 475; Hough v. Texas Pac. R. Co., 100 U.S. 213, 25 L.Ed. 612; E.L. Bruce Co. v. Brogan, 166 So. 350; Central Lbr. Co. v. Porter, 103 So. 506; Warner v. Oriel Glass Co., 8 S.W.2d 846, 60 A.L.R. 448; Cotton Mill Products Co. v. Oliver, 153 Miss. 312, 121 So. 111.
Argued orally by W.H. Watkins, and Mrs. Elizabeth Hulen, for appellant, and by Dan T. Currie and Neil T. Currie, for appellee.
The appellee recovered a judgment against appellant for $30,000, damages sustained by him on account of a personal injury which he alleges was caused by appellant's negligence.
The appellant is engaged, among other things, in the manufacture and sale of lumber, and owned a number of railroad cars. The appellee was employed by it. When his injury was received, the appellee was engaged in dismantling some of the railroad cars for the purpose of salvaging the material therein. In order to dismantle the cars, it became necessary for the appellee to remove iron bolts in the journal boxes of the car wheels which were held in place by iron nuts screwed on the ends thereof. These nuts were removed by means of a monkey wrench, when possible to do so, and if not, by cutting either the nuts or bolts. He had been using a cleaver, an ax-like instrument, for this purpose. In using this cleaver, the appellee would hold it by its handle and place its blade against the nut or bolt; the head of the blade would then be struck by another with an iron maul. This cleaver broke, and the appellee thereupon applied to the appellant's foreman, who was charged with the duty of directing the work and supplying tools therefor, for another cleaver. The foreman said he had no other cleaver and gave the appellee a chisel twenty-two inches long for use in lieu of a cleaver. The appellee says that he objected to using this chisel and told the foreman "it was dangerous, that the chisel bar wasn't fit to use as it wasn't safe," whereupon the foreman said "it was dangerous, but it was all we had, and it was either that or walk — go home." The foreman's version of the conversation is: "They asked me couldn't I get some other way for it to be done — to do it with, and I told them, no I couldn't, I didn't have anything to do it with." He admitted that he ordered the appellee to use the maul and chisel. The appellee obeyed this order. When cutting the nuts and bolts with this chisel, it was necessary for the appellee to hold the chisel with his hands, somewhere between its head and the cutting end thereof, and place the cutting end against the nut or bolt, while his helper struck the head of the chisel with an iron maul weighing about twelve pounds. One of these bolts was near the bottom of a wheel, about seven inches from the ground. In order to cut the nut from this bolt with the chisel, it became necessary for the appellee to either stoop or kneel, bringing his head into close proximity with the chisel, and while holding the cutting edge of the chisel against the nut or bolt, his helper struck the chisel a glancing blow which caused him to lose control thereof, resulting in both chisel and maul striking the appellee on the head over the eye. According to the appellee's helper, what occurred was that when he struck the chisel the bolt gave way, causing the chisel to jerk the appellee forward, resulting in his head coming in violent contact with the chisel. This blow on the head, according to the appellee and his witnesses, produced a serious injury from which he shortly afterwards became totally blind.
The ground of the appellee's complaint is that the appellant failed to discharge the duty it owed him to exercise reasonable care to furnish him with reasonably safe tools with which to cut the nuts and bolts, the chisel being an unsuitable and unsafe tool therefor because it was too short. The evidence discloses that a chisel and maul are suitable tools for cutting nuts and bolts, and are in customary use for that purpose, but that their safety is conditioned on the length of the chisel; that for the appellant indicating that a chisel thirty inches in length could be safely used, one of its witnesses said he had used a chisel twenty inches in length, but the circumstances under which he had used it do not appear. According to the appellee's evidence, the chisel should be four or five feet in length. The danger of using a chisel and maul for cutting nuts and bolts consists in this, one holding the chisel must hold it tight and perfectly still against the nut or bolt, and the one using the maul must strike the chisel squarely on its head. Should either fail in this regard, the maul might glance from the chisel and strike the person holding it. His hand and arm would always be in danger therefrom, and other portions of his body if in close proximity to the chisel; this danger would also result should a nut or bolt suddenly give way when being struck, all of which is perfectly manifest without the aid of expert testimony relative thereto.
According to the assignments of error, the court below erred, (1) in refusing to direct a verdict for the appellant; (2) in granting certain instructions for the appellee and refusing others requested by the appellant; and (3) in refusing to set aside the verdict, which the appellant asserts is against the weight of the evidence.
The ground on which the appellant's claim for a directed verdict rests is that the chisel and maul were simple tools, and therefore within the simple-tool exception to the rule that the master is under the duty to exercise reasonable care to furnish his servant with reasonably safe tools with which to do the work required of him. The chisel and maul were both simple tools, but the danger to the appellee in the use thereof arose, not from any defects therein, but from the mode and manner in which he was required to use them, i.e., hold a chisel, twenty-two inches in length, against a nut or bolt, while the chisel is being struck by another with a twelve-pound iron maul for the purpose of cutting the bolt. This danger should be manifest to any one who knew the length of the chisel and that it was to be so used, but if not, the danger could have been easily ascertained by the exercise of slight care for that purpose, consequently the appellant's foreman was guilty of negligence when, over the appellee's protest, he peremptorily ordered the appellee to use the chisel, with knowledge of the mode and manner of its required use. The work the appellee was doing was of a temporary character, and would have been completed in a short time, so that the foreman's order to use the chisel and maul is analogous to an order by a master to his servant to use a defective appliance, coupled with a promise to repair it. Moreover, the appellee was bound to obey this order, or risk being disciplined for insubordination. Under such circumstances, the master is not relieved of liability for an injury from the use of unsafe tools, although the servant may have been as competent as the master to determine the suitability thereof for the performance of the required work. Any question as to the assumption, by the appellee, of the risk incident to the use of the chisel and maul in the mode and manner required is eliminated by section 513, Code 1930, which abolishes the common-law doctrine of assumption of risk by a servant when the master is negligent. The court below, therefore, committed no error in refusing to grant a directed verdict for the appellant.
The instructions complained of by the appellant are said to hold the appellant to the absolute duty of furnishing the appellee with reasonably safe tools with which to work, instead of the duty to exercise reasonable care so to do, and do not confine the jury to the negligence alleged in the declaration. The instructions refused the appellant advise the jury that it could not find the appellant negligent in not furnishing the appellee with another cleaver which the appellant says the evidence demonstrates could not have been used for cutting the particular bolt or nut which appellee was attempting to cut when he was injured, and that it could not find the appellant guilty of negligence in not furnishing the appellee with an acetylene torch which it owned, and which, according to the evidence, would have been a perfectly safe appliance for cutting nuts and bolts.
It is unnecessary for us to determine whether these complaints of appellee would be otherwise well founded, for the reason that if errors appear therein, they would not justify the setting aside of the verdict, for it is so manifestly correct, in so far as it determines the appellant's liability, that a contrary verdict would not be permitted.
Specifically, and to repeat, it is manifest from the evidence: (a) That this chisel was a dangerous tool with which to cut nuts and bolts in the mode and manner required; (b) this danger should have been manifest to the appellant's foreman, and if not, could have been ascertained by the exercise of slight care; consequently (c) he was guilty of negligence when he ordered the appellee, over his protest, to use the chisel for the cutting of nuts and bolts; and (d) appellee did not, under section 513, Code 1930, assume the risk incident to the use of the chisel in the mode and manner required.
The appellant says that the verdict is excessive for the reason that the evidence does not support a finding that the appellee's blindness resulted from the injury he received. We do not so understand the evidence, for while it is conflicting as to this, that for the appellee supports his contention that his blindness was so caused.
Affirmed.