Page images
PDF
EPUB

(230 P.)

11. Master and servant 217(11)—When and directing a verdict is the ultimate quesservant assumes risk from known dangerous tion before us. appliance stated.

If servant, with knowledge that appliance furnished for his use is in dangerously defective condition and, with appreciation of danger from continued use, voluntarily continues to use it, he assumes risk.

12. Master and servant

219(5)-Servant assumes risk from using simple tool supplied. If appliance furnished for servant's use is simple tool, he assumes risk arising from using it.

13. Master and servant 221 (5)-Rule of servant's assumption of risk from defective appliance after complaint thereof to master stated.

If appliance is in dangerous condition and servant complains, and master promises to repair, servant, in reliance on promise, may continue use of appliance for reasonable time without assuming risk of injury therefrom, even though tool is a simple one, unless danger is so imminent that prudent man would not take risk.

Section 9364, Revised Codes, provides: the case presents only questions of law, the "Where, upon the trial of an issue by a jury, judge may direct the jury to render a verdict in favor of the party entitled thereto."

In the interpretation of that statute, this court has announced the following rules: (1) Upon a motion for a directed verdict in favor of the defendant, the evidence introduced by the plaintiff will be considered in the light most favorable to him and as proving whatever it tends to prove. (2) A cause should never be withdrawn from the jury,

unless the conclusion from the facts follows

necessarily, as a matter of law, that a recovery cannot be had upon any view which can be drawn reasonably from the facts which the evidence tends to establish. (3) In reviewing an order directing a verdict for the defendant, this court will consider only the evidence introduced by the plaintiff, and if that evidence, when viewed in the most favorable light, tends to establish the

Appeal from District Court, Mineral Coun- case made by the plaintiff's pleadings, the ty; Theodore Lentz, Judge.

Action by Sam Johnson against the Chicago, Milwaukee & St. Paul Railway Company. Judgment for defendant on directed verdict, and plaintiff appeals. Reversed and remanded for new trial.

Frank & Gaines, of Butte, for appellant. Murphy & Whitlock, of Missoula, for respondent.

HOLLOWAY, J. [1-3] The plaintiff, an employee of the defendant railway company, was injured while in the discharge of his duties as section hand, and brought this action to recover damages. He contends that he was required to work with a pick, the points of which had become so worn and dull that the use of it greatly increased the haz ards of his employment; that about September 1, 1922, he complained to the foreman in charge, who promised to have it sharpened or to supply a sharpened pick; that he relied upon the promise and continued to use the defective tool; that on September 24, while engaged in an effort to split or chip off the top of an old tie, in order that it might be replaced by a new one, the pick, because of its dull condition, failed to penetrate the wood. but glanced off, striking a rock and dislodging particles of rock, some of which struck him in the face and eyes, causing the injury of which complaint is made. Upon the trial and at the conclusion of all the evidence the court directed a verdict for the defendant, and plaintiff appealed from the judgment dismissing his complaint. The correctness of the trial court's ruling sustaining defendant's motion

order will be reversed. Ball v. Gussenhoven, 29 Mont. 321, 74 P. 871; Lehane v. Butte Electric Ry. Co., 37 Mont. 564, 97 P. 1038; Moran v. Ebey, 39 Mont. 517, 104 P. 522; Carroll v. King, 59 Mont. 403, 196 P. 996; Mitchell v. Northern Pac. Ry. Co., 63 Mont.

500, 208 P. 903; Long v. Davis, 68 Mont. 85,

217 P. 667.

The term "plaintiff's evidence," as employed in the foregoing rules, excludes merely a bare scintilla, but includes every fair inference which may be drawn from the facts proved and, as well, any evidence introduced by the defendant which tends to support the plaintiff's case. In considering the evidence before us, allowance must be made for the crude manner in which the witnesses expressed themselves. Plaintiff is an Albanian, his witness Miller is a Greek, and his witness Maros a foreigner also. As disclosed by the record, these witnesses had a very limited knowledge of the English language; but evidence is not to be weighed by the elegance of diction or the terseness of expression, but by its intrinsic worth.

[4] The record discloses that the plaintiff went to work for the defendant as a section hand on the section at Drexel about the end of July, 1922; that Paulos was the section foreman; that, when the picks became duli from use, they were gathered up once a month and sent to the shops at Deer Lodge or Tacoma to be sharpened; that new or sharpened picks were delivered once a month by the supply car which came through about the 20th of every month; that, during the summer of 1922, there was a strike of blacksmiths at the shops, and new or sharpened picks were not delivered from June until De

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

cember; that, when plaintiff went to work, [ the supply car had already passed this section for the month of July; that he knew when the car passed through in August, but did not know that the car had passed in September before he was injured, although it

had done so.

Counsel for defendant insist that the evidence is insufficient to carry the case to the jury. They argue, first, that it does not disclose that the pick was in a defective condition, or, stated differently, that it was not in a reasonably safe condition. It is made to appear that a pick in a reasonably efficient condition has prongs which are from 8 to 10 inches long; that, at the time plaintiff went to work, all the picks in use on this section were somewhat dull, the points being about as thick as the end of a man's little finger; that by constant use they became much duller, so that at the time of the injury the prongs were only 6 or 7 inches in length, and the points as thick as the end of a man's thumb.

Miller testified that when a dull pick strikes a rock it causes more particles of rock to fly than will a sharp pick; that a blow from a sharp pick will cause the point of the pick to penetrate a tie, and it will not glance off.

Plaintiff testified that a sharp pick will not break a rock as much or cause particles of the rock struck to scatter as much as will a dull pick. He testified further:

"It was dangerous to work with those picks, because dull picks will fly large dirt up and no stick in tie."

And again:

"While working before at Drexel, it breaks a rock and hits me on the legs."

We think this evidence, with other evidence of like character in the record, is sufficient, if not contradicted, to justify a jury in finding that the pick was not in a reasonably safe condition for use, and that the use of it increased the hazards of plaintiff's employment.

[5] Again it is contended that the evidence fails to disclose the proximate cause of plaintiff's injury It does appear that, at the time of his injury, plaintiff was in the discharge of his duties, removing old ties and replacing them with new ones; that he was using his pick, attempting to split or chip off the top of an old tie in order to remove it; that he struck three blows, the first two of which were ineffective for any purpose; that, when he struck the third blow, the pick failed to penetrate the tie, but glanced off, passed through a thin covering of fine dirt and struck something, with the result that a hard substance flew up, striking the plaintiff in the eye and causing a severe injury.

"Don't know what hit me in the eye something hard hit me in the eye."

injury he examined the place where plainMiller testified that immediately after the tiff's pick struck and discovered a rock which had been hit by a pick, the blow dislodging ing with the plaintiff at the time, testified: particles of the rock. Maros, who was work

"Sam [plaintiff] started to chip off the top, started chipping off tie two or three times and pick slip, hit rock, and rock was thrown the rock, could tell it was hit. I see the mark over and hit him in the eye; I seen myself on rock after he hit it. * * Some rock flew by me but didn't hit me."

[6, 7] It is the rule in this jurisdiction, and elsewhere generally, that the proximate cause of an injury may be proved by indirect evidence (De Sandro v. Missoula L. & Ry. Co., 48 Mont. 226, 136 P. 711); indeed, more often than otherwise, it is a matter of inference from the facts disclosed by the evidence. Under almost identical circumstances, the Supreme Court of Iowa held this evidence sufficient to make out a prima facie case, and we agree with that conclusion. Swaim v. C., R. I. & P. Ry. Co., 187 Iowa, 466, 174 N. W. 384.

Again it is insisted that the evidence fails to show a sufficient complaint, a sufficient promise to repair, or a reliance upon the promise, if one was made. Plaintiff testified:

*

"Complained to Paulos about it being dangerous to work with that pick before and after I got hurt on the leg. * * I told the foreman we got to have some tools, because the tools is kind of dangerous working like this. He say he ordered the roadmaster to send some to us. * The foreman told us to do the best we can. * *He said this week or next week some time the picks will come. The foreman told me would have to wait for the supply car to get the picks. I said, I told him that the picks were dangerous. Danger would be somebody getting hurt because of the dull picks."

[blocks in formation]

I believed him, that is why I stayed. "He told me there come some more picks; Suppose Paulos had told me that we wouldn't get any new picks, I would quit."

In 4 Labatt on Master and Servant, section 1345, the rule established by the current

(230 P.)

"When complaining of defective instrumental- I rely upon the promise to furnish a new jack. ities or machinery, it is not necessary that the servant shall state in exact words that he apprehends danger to himself by reason of the defects, nor need there be a formal notification that he will leave the service, unless the defects be repaired or remedied. It is sufficient, if from the circumstances of the case it can be fairly inferred that the servant is complaining on his own account, and that he was induced to continue in the service by reason of the promise."

And in section 1343 the author says:

"Any acts or expressions by which the servant gives the proper agent of the employer to understand that he is unwilling to continue in the employment unless the cause of danger is removed constitute a sufficient complaint, and any acts or expressions by which such agent gives the servant to understand that the cause of danger will be removed constitute a sufficient promise."

In Hermanek v. Railway, 186 F. 142, 108 C. C. A. 254, the court said:

The plaintiff had the right to wait a reasonable time for the fulfillment of the foreman's promise to provide for him and his associates a new jack, and his statements upon which the jury's finding here under consideration was based, and the finding itself, are subject to the interpretation that the plaintiff meant, and the jury found, that his intention was to continue in defendant's service until the new jack arrived, and not indefinitely, regardless of the defective condition of the jack that hurt him, and the failure of the foreman to provide the new one."

[blocks in formation]

[9] In Diehl v. Swett-Davenport Lumber Co., 14 Cal. App. 495, 112 P. 561, the court said:

"But when the promise is that the repair shall be made upon the happening of a certain event, the master assumes the risk until the event has happened and for a reasonable time thereafter."

In Atchison, T. & S. F. R. Co. v. Lannigan, 56 Kan. 109, 42 P. 343, the court said:

"The evidence discloses that the plaintiff, on one or two occasions before the injury in question, complained to Barry, the foreman, of the worn and defective condition of the bars in question, and that they were dangerous to use; Barry stating in response thereto that he would fix them or send them to Clinton to be fixed. Whether the evidence in this regard "The employee has still a reasonable time shows a specific promise upon the part of Barry after the employer is in default before he is to procure new or repaired bars, that plain-required either to quit the service or assume tiff so understood Barry's promise, and relied upon the same, is not altogether clear; but the evidence in this respect is of such a character that it should have been submitted to the jury to say whether or not Barry's statements to plaintiff were intended by Barry, and understood by plaintiff, to be a promise that new or repaired tools would be furnished, and whether plaintiff continued to work with the tools, relying upon such promise."

In support of their contention that the promise, if made, was not relied upon, counsel for defendant direct attention to the testimony of plaintiff given on cross-examination, to the effect that, if he had not been injured, he would have continued the employment and the use of the defective pick. But counsel would have us reverse the rule, and consider plaintiff's testimony in the light most unfavorable to him, and this we may not do. But even if we consider the evidence referred to, it does not follow that a jury would not be justified in finding that the promise of defendant was the inducing cause for plaintiff's continuing his work.

In Missouri, K. & T. Ry. Co. v. Brown (Tex. Civ. App.) 180 S. W. 1117, the court

said:

the risk."

We are satisfied that these authorities state the rule correctly.

Paulos was the foreman in charge of these men. He had general supervision and direction of their work; kept their time; made requisitions for supplies, including new or sharp picks, upon printed forms furnished to him by the railway company. He had charge of the tools, which he kept in a toolhouse at night, and this toolhouse he kept locked and retained the key himself. In Prezeau v. Davis, 67 Mont. 523, 216 P. 773, this court said:

"For the purpose of providing a safe place for an employee to work, or of assuring him that a known defect will be remedied, a foreman is the representative of the employer." Grant v. Nihill, 64 Mont. 420, 210 P. 914; 4 Labatt on Master and Servant, § 1344, and the

cases cited in the notes.

We conclude that plaintiff's evidence, when viewed in the light most favorable to him, required a submission of this case to the jury, unless the character of the instrumen

"The fact that the jury found, upon testi-tality with reference to which the promise was given, affects the result and compels a different conclusion.

mony which seems to have warranted it, that the plaintiff intended to continue in the employment of the defendant, using the lifting jack, if he hadn't got his finger hurt,' does not, under all the facts and circumstances in evidence, require a holding that he did not

It is conceded by counsel for plaintiff that the pick in question is a simple tool within the meaning of that term as it is employed in the law of master and servant,

and it is over the application of the socalled simple tool doctrine that the particular controversy herein is waged.

did not fail in furnishing a proper ladder for the use of the plaintiff."

The rule has its very foundation in the fact that the appliance with which the servant is required to work is in a defective conof the employment are increased. dition, and, by reason thereof, the hazards If the appliance is not defective, there cannot be any room for the application of the rule or it would seem to follow that, in so far as for a discussion of its limitations; hence it limits the application of the rule, the decision of the New York court is obiter dictum. But even so, the case has been fol

[10-12] The general principles of law which define the duty of the master, and define and limit the doctrine of assumption of risk, are well settled, and, for the purposes of this appeal, may be stated briefly as follows: It is the duty of the master to exercise ordinary care to provide the servant with reasonably safe tools and appliances, and to see that they are kept in a reasonably safe and suitable condition for use. If the servant, with knowledge that the appliance furnished for his use is in a dan-lowed in other jurisdictions, and was folgerously defective condition and, with an appreciation of the danger which its continued use involves, voluntarily continues to use it, he assumes the risk. If the appliance furnished for the use of the servant is a simple tool, he assumes the risk of injury arising from the use of it. Upon the statement and application of these principles, counsel for the respective parties agree.

lowed by the Supreme Court of New York
in Baumwald v. Trenkman, 88 N. Y. S. 182,
decided in 1904.

Wis. 191, 51 N. W. 328, likewise grew out
Corcoran v. Milwaukee Gaslight Co., 81
of the use of a defective ladder.
ferring to the general rule above, the court

said:

After re

"The allegations here fail to bring the case in Marsh v. Chickering, 101 N. Y. 396, the rule within the rule stated. Besides, as indicated is hardly applicable to a case like the one at

Meador v. Lake Shore & M. S. Ry. Co., 138 Ind. 290, 37 N. E. 721, 46 Am. St. Rep. 384, also involved an injury arising from the use of a ladder. The court limited the rule so as to exclude the servant injured by the use of a simple tool, upon the authority of Marsh v. Chickering, and Corcoran V. Milwaukee Gaslight Co.

[13] It is also a rule equally well settled that, if the servant discovers that the appliance furnished for his use is in a danger-bar." ously defective condition, and he makes proper complaint to the master, and the master promises to repair the defect, the servant, in reliance upon that promise, may continue the employment and the use of the defective appliance for a reasonable time during which period he is relieved of the burden of assumption of risk, unless the danger is of such imminent character that a reasonably prudent person would not be justified in taking the chances of injury. As we understand counsel, they agree upon the statement of this rule, but fail to agree upon its proper application, and the fact that they fail to agree is not surprising when it is recalled that the courts of last resort are unable to agree upon the same question.

The case of Webster Mfg. Co. v. Nisbett, 205 Ill. 273, 68 N. E. 936, grew out of an injury caused by the use of a defective hammer. The court applied the same limitation to the rule, citing Marsh v. Chickering and Meador v. Lake Shore & M. S. Ry. Co., and the decision was followed in Gunning System v. Lapointe, 212 Ill. 274, 72 N. E. 393, and in Kistner v. American Steel Foundries, 233 Ill. 35, 84 N. E. 44.

Counsel for defendant contend that the rule should be so limited in its application McGill v. Traction Co., 79 Ohio St. 203, as to exclude from its benefits the servant 86 N. E. 989, 19 L., R. A. (N. S.) 793, 128 who is injured through the use of a defec-Am. St. Rep. 705, involved an injury arising tive simple tool, and direct our attention from the use of a stepladder, and the court to decided cases which lend support to their there followed Marsh v. Chickering, Meador view. The leading one is Marsh v. Chicker-v. Lake Shore & M. S. Co., and Gunning Sysing, 101 N. Y. 396, 5 N. E. 56, decided in tem v. Lapointe. 1886. The case involved an injury arising from the use of a defective ladder, and the New York court denied to the plaintiff the right to recover, upon the theory that the general rule stated above is not applicable "And, as here recognized and applied, it abto a case of injury arising from the use of a solves the master from liability to the servant simple tool or appliance. Curiously enough for injuries sustained in using such a simple the court, after thus limiting the application tool, even though there has been a promise to of the rule, proceeded to hold that the plain-repair or an assurance of safety." tiff had failed to prove that the ladder was This was followed in C., N. O. & T. P. defective. The court said:

"The evidence would not justify a recovery, for the reason that the defendants [master]

In Turkey Foot Lumber Co. v. Wilson, 182 Ky. 42, 206 S. W. 14, the court referred to cases which had established the simple tool doctrine in that state, and said:

Ry. Co. v. Burton, 184 Ky. 2, 211 S. W. 186. The force of these decisions is impaired somewhat by the fact that the courts simply

(230 P.)

ignored the authorities holding the contrary | but little knowledge of it, then the rule is view. so restricted that it is useless when viewed from a practical standpoint.

Counsel for defendant also cite MusserSauntry L. L. & M. Co. v. Brown, 126 F. 141, 61 C. C. A. 207; Railway Co. v. Kelton, 55 Ark. 483, 18 S. W. 933; Rahm v. Railway, 129 Mo. App. 679, 108 S. W. 570. and Brewer v. Coal Co., 97 Tenn. 615, 37 S W. 549; but these cases are not in point. In Musser-Sauntry L. L. & M. Co. v. Brown, the decision is placed squarely upon the ground that injury from using the defective appliance was so imminent that the servant was culpably negligent in continuing to use it, even after a promise by the master to repair; and the decision in Railway Co. v. Kelton is placed upon the same ground. In Rahm v. Railway, the injury which gave rise to the action was inflicted in Illinois, and the Missouri court merely applied the rule as it existed in Illinois. The decision in Brewer v. Coal Co. involved only a question of pleading. It was held that there was not any allegation that the servant relied upon the master's promise, and it was not disclosed how long before the accident the promise was made.

We have searched these authorities for a reason for the limitation thus imposed upon the general rule, but have failed to find any satisfactory to us. In Marsh v. Chickering, it is said that the rule which relieves the servant from the assumption of risk after the master's promise to repair has been given

"is one of a just and salutary character, designed for the benefit of employees engaged in work where machinery and materials are used, of which they can have but little knowledge, and not for those engaged in ordinary labor which only requires the use of implements with which they are entirely familiar."

That language is referred to approvingly in Meador v. Lake Shore & M. S. Ry. Co., Webster Mfg. Co. v. Nisbett and Corcoran v. Traction Co., above. If these courts mean what they say, then the application of the rule to the facts of any given case depends upon the extent of the servant's knowledge of and familiarity with his working tool, rather than upon the simplicity or complexity of the instrumentality itself. If the rule was intended only for the benefit of laborers using machinery and materials, of which they have but little knowledge, then it sets a premium upon ignorance and stupidity. It denies the right to recover, not only to the servant who uses simple tools, but as well to every skilled mechanic using the most intricate machinery, if he has the mental capacity and technical knowledge to understand his machine, know its defects, and appreciate the danger of using it in its defective condition. If it applies only to the servant using machinery so complicated that even an expert machinist can acquire

In Gunning System v. Lapointe, the Illinois court said:

"The cases where the rule of assumed risk is suspended, and the servant exempted from its application under a promise from the master to repair or cure the defect complained of are those in which particular skill and experience are necessary to know and appreciate the defect and the danger incident thereto, or where machinery and materials are used of which the servant can have little knowledge, and not those cases where the servant is engaged in ordinary labor or the tools used are only those of simple construction, with which the servant is as familiar and as fully understands as the master"

This court also fails to suggest any reason why the expert mechanic, who knows the defects in the machinery with which he works, appreciates the danger of using it in its defective condition, n fact, is just as familiar with it as is the master, should be relieved of the assumption of risk by the master's promise to repair; but the same immunity should be denied to the servant who uses a simple tool with which he is no machine. A rule without reason would not more familiar than is the expert with his commend itself to any one, and there must be some rational theory underlying the rule which relieves the servant of the assumption of risk after the master has promised to repair.

master in the first instance, by virtue of the Speaking generally, the risk is upon the contract of employment. The burden shifts to the servant when, with knowledge of the defective appliance and an appreciation of the danger, he voluntarily continues to use it, under the maxim volenti non fit injuria. The effect of the servant's complaint, then, must be this:

"I am unwilling to continue to use the defective tool, because, if I am injured by the use of it, I will be held to have assumed the risk, and I will quit the employment rather than take the chances of injury."

If the master's promise is to be given any

effect whatever, it must be held to be tantamount to saying to the servant:

"If you will continue the employment and the use of the defective tool for a reasonable time, I agree to relieve you of the burden of assumption of risk which otherwise would fall

upon you."

[merged small][ocr errors]
« PreviousContinue »