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(230 P.) 11. Master and servant 217(11)-When and directing a verdict is the ultimate quesse Masterassanes Seiska from

nown dangerous tion before sense appliance stated.

Section 9364, Revised Codes, provides: It servant, with knowledge that appliance furnished for his use is in dangerously defec- the case presents only questions of law, the

"Where, upon the trial of an issue by a jury, tive condition and, with appreciation of danger judge may direct the jury to render a verdict from continued use, voluntarily continues to

in favor of the party entitled thereto." use it, he assumes risk. 12. Master and servant 219(5)-Servant as

In the interpretation of that statute, this sumes risk from using simple tool supplied.

court has announced the following rules: (1) If appliance furnished for servant's use is Upon a motion for a directed verdict in fasimple tool, he assumes risk arising from us

vor of the defendant, the evidence introduced ing it.

by the plaintiff will be considered in the

light most favorable to him and as proving 13. Master and servant Ow221 (5) -Rule of whatever it tends to prove. (2) A cause servant's assumption of risk from defective should never be withdrawn from the jury, appliance after complaint thereof to master stated.

unless the conclusion from the facts follows If appliance is in dangerous condition and necessarily, as a matter of law, that a reservant complains, and master promises to recovery cannot be had upon any view which pair, servant, in reliance on promise, may con

can be drawn reasonably from the facts tinue use of appliance for reasonable time with which the evidence tends to establish. (3) out assuming risk of injury therefrom, even in reviewing an order directing a verdict though tool is a simple one, unless danger is for the defendant, this court will consider so imminent that prudent man would not take only the evidence introduced by the plaintiff, risk.

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.

order will be reversed. Ball v. Gussenhoven, Action by Sam Johnson against the Chi- 29 Mont. 321, 74. P. 871; Lehane v. Butte cago, Milwaukee & St. Paul Railway Com Electric Ry. Co., 37 Mont. 564, 97 P. 1038; pany. Judgment for defendant on directed Moran v. Ebey, 39 Mont. 517, 104 P. 522; verdict, and plaintiff appeals. Reversed and Carroll v. King, 59 Mont. 403, 196 P. 996; remanded for new trial.

Mitchell v. Northern Pac. Ry. Co., 63 Mont. Frank & Gaines, of Butte, for appellant. 500, 208 P. 903 ; Long v. Davis, 68 Mont. 85,

217 P. 667. Murphy & Whitlock, of Missoula, for re

The term "plaintiff's evidence,” as spondent.

ployed in the foregoing rules, excludes mere

ly a bare scintilla, but includes every fair HOLLOWAY, J. [1-3] The plaintiff, an inference which may be drawn from the facts employee of the defendant railway company, proved and, as well, any evidence introduced was injured while in the discharge of his by the defendant which tends to support the duties as section hand, and brought this ac- | plaintiff's case. In considering the evidence tion to recover damages. He contends that before us, allowance must be made for the he was required to work with a pick, the crude manner in which the witnesses expoints of which had become so worn and dull pressed themselves. Plaintiff is an Albanian, that the use of it greatly increased the haz his witness Miller is a Greek, and his witards of his employment; that about Sep-ness Maros a foreigner also. As disclosed tember 1, 1922, he complained to the fore by the record, these witnesses had a very man in charge, who promised to have it limited knowledge of the English language; sharpened or to supply a sharpened pick; but evidence is not to be weighed by the that he relied upon the promise and contin- elegance of diction or the terseness of exued to use the defective tool; that on Sep- pression, but by its intrinsic worth. tember 24, while engaged in an effort to split [4] The record discloses that the plaintiff or chip off the top of an old tie, in order went to work for the defendant as a section that it might be replaced by a new one, the hand on the section at Drexel about the end pick, because of its dull condition, failed to of July, 1922; that Paulos was the section penetrate the wood, but glanced off, strik- foreman; that, when the picks became dull ing a rock and dislodging particles of rock, from use, they were gathered up once a some of which struck him in the face and month and sent to the shops at Deer Lodge eyes, causing the injury of which complaint or Tacoma to be sharpened; that new or is made. Upon the trial and at the conclu- sharpened picks were delivered once a month sion of all the evidence the court directed a by the supply car which came through about verdict for the defendant, and plaintiff ap- the 20th of every month; that, during the pealed from the judgment dismissing his summer of 1922, there was a strike of blackcomplaint. The correctness of the trial smiths at the shops, and new or sharpened court's ruling sustaining defendant's motion picks were not delivered from June until De


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cember; that, when plaintiff went to work, , "Don't know what hit me in the eye the supply car had already passed this sec- something hard hit me in the eye." tion for the month of July; that he knew

Miller testified that immediately after the when the car passed through in August, but injury he examined the place where plaindid not know that the car had passed in Sep.tiff's nick struck and discovered a rock which tember before he was injured, although it had been hit by a pick, the blow dislodging had done so. Counsel for defendant insist that the evi- ing with the plaintiff at the time, testified:

particles of the rock. Maros, who was workdence is insufficient to carry the case to the jury. They argue, first, that it does not dis "Sam (plaintiff] started to chip off the top, close that the pick was in a defective condi- started chipping off tie two or three times tion, or, stated differently, that it was not and pick slip, hit rock, and rock was thrown in a reasonably safe condition. It is made the rock, could tell it was hit. I see the mark

over and hit him in the eye; I seen myself to appear that a pick in a reasonably ef

on rock after he hit it.

Some rock ficient condition has prongs which are from flew by me but didn't hit me." 8 to 10 inches long; that, at the time plaintiff went to work, all the picks in use on (6, 7] It is the rule in this jurisdiction, and this section were somewhat dull, the points elsewhere generally, that the proximate cause being about as thick as the end of a man's of an injury may be proved by indirect evilittle finger; that by constant use they be- dence (De Sandro v. Missoula L. & Ry. Co., came much duller, so that at the time of the 48 Mont. 226, 136 P. 711); indeed, more oftinjury the prongs were only 6 or 7 inches in en than otherwise, it is a matter of inferlength, and the points as thick as the end ence from the facts disclosed by the eviof a man's thumb.

dence. Under almost identical circumstancMiller testified that when a dull pick es, the Supreme Court of Iowa held this evistrikes a rock it causes more particles of dence sufficient to make out a prima facie rock to fly than will a sharp pick; that a case, and we agree with that conclusion. blow from a sharp pick will cause the point Swaim v. C., R. I. & P. Ry. Co., 187 Iowa, of the pick

penetrate a tie, and it wil 466, 174 N. W. 384. not glance off.

Again it is insisted that the evidence fails Plaintiff testified that a sharp pick will to show a sufficient complaint, a sufficient not break a rock as much or cause particles promise to repair, or a reliance upon the of the rock struck to scatter as much as will promise, if one was made. Plaintiff testia dull pick. He testified further:

fied: "It was dangerous to work with those picks,

"Complained to Paulos about it being danbecause dull picks will fly large dirt up and no gerous to work with that pick before and after stick in tie,"

I got hurt on the leg.

* I told the fore

man we got to have some tools, because the And again:

tools is kind of dangerous working like this.

He say he ordered the roadmaster to send some "While working before at Drexel, it breaks a to us.

The foreman told us to do the rock and hits me on the legs."

best we can.

He said this week or

next week some time the picks will come. The We think this evidence, with other evi- foreman told me would have to wait for the dence of like character in the record, is suf- supply car to get the picks. I said, I told him ficient, if not contradicted, to justify a jury be somebody getting hurt because of the dull

that the picks were dangerous. Danger would in finding that the pick was not in a reason- picks." ably safe condition for use, and that the use of it increased the hazards of plaintiff's em

Paulos testified: ployment.

"All the men said that the tools are not suit[5] Again it is contended that the evidence able to work rith.

Whenever the fails to disclose the proximate cause of plain- boys make that complaint, I told them that I tiff's injury It does appear that, at the had ordered picks, and was expecting them in

the supply car.

In the month of Autime of his injury, plaintiff was in the discharge of his duties, removing old ties and gust I made a requisition for some sharp picks.

Every month I made that requisition.” replacing them with new ones; that he was using his pick, attempting to split or chip

In answer to the question; "What made off the top of an old tie in order to remove you stay on and work with dangerous picks?" it; that he struck three blows, the first two the plaintiff replied: of which were ineffective for any purpose;

"He told me there come some more picks; that, when he struck the third blow, the pick I believed him, that is why I stayed. failed to penetrate the tie, but glanced off, Suppose Paulos had told me that we wouldn't passed through a thin covering of fine dirt get any new picks, I would quit.” and struck something, with the result that a hard substance flew up, striking the plain In 4 Labatt on Master and Servant, sectiff in the eye and causing a severe injury. tion 1345, the rule established by the current On cross-examination, plaintiff testified: of authority is stated as follows:

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(230 P.)
"When complaining of defective instrumental- / rely upon the promise to furnish a new jack.
ities or machinery, it is not necessary that the The plaintiff had the right to wait a reasonable
servant shall state in exact words that he ap- / time for the fulfillment of the foreman's prom-
prehends danger to himself by reason of the ise to provide for him and his associates a new
defects, nor need there be a formal notifica- jack, and his statements upon which the jury's
tion that he will leave the service, unless the finding here under consideration was based,
defects be repaired or remedied. It is suffi- and the finding itself, are subject to the inter-
cient, if from the circumstances of the case it pretation that the plaintiff meant, and the ju-
can be fairly inferred that the servant is com- ry found, that his intention was to continue in
plaining on his own account, and that he was defendant's service until the new jack arrived,
induced to continue in the service by reason and not indefinitely, regardless of the defective
of the promise."

condition of the jack that hurt him, and the

failure of the foreman to provide the new one."
And in section 1343 the author says:
"Any acts or expressions by which the serv [8] Whether plaintiff did continue to work
ant gives the proper agent of the employer to with the defective pick for an unreasonable
understand that he is unwilling to continue in time after the promise was given was a
the employment unless the cause of danger question for the jury to determine. Breen
is removed constitute a sufficient complaint,
and any acts or expressions by which such v. Iowa Central Ry. Co., 159 Iowa, 537, 141
agent gives the servant to understand that the N. W. 410.
cause of danger will be removed constitute a [9] In Diehl v. Swett-Davenport Lum-
sufficient promise."

ber Co., 14 Cal. App. 495, 112 P. 561, the

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

"But when the promise is that the repair

shall be made upon the happening of a certain
"The evidence discloses that the plaintiff, op event, the master assumes the risk until the
one or two occasions before the injury in ques-

event has happened and for a reasonable time
tion, complained to Barry, the foreman, of the thereafter."
worn and defective condition of the bars in
question, and that they were dangerous to use;
Barry stating in response thereto that he

In Atchison, T. & S. F. R. Co. v. Lanni.
would fix them or send them to Clinton to be gan, 56 Kan. 109, 42 P. 313, the court said:
fixed. Whether the evidence in this regard

“The employee bas 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 re- the risk.”
lied upon the same, is not altogether clear;
but the evidence in this respect is of such a
character that it should have been submitted

We are satisfied that these authorities
to the jury to say whether or not Barry's state the rule correctly.
statements to plaintiff were intended by Barry, Paulos was the foreman in charge of these
and understood by plaintiff, to be a promise men. He had general supervision and di.
that new or repaired tools would be furnished, rection of their work; kept their time;
and whether plaintiff continued to work with made requisitions for supplies, including
the tools, relying upon such promise.”

new or sharp picks, upon printed forms fur-
In support of their contention that the nished to him by the railway company. He
promise, if made, was not relied upon, coun. had charge of the tools, which he kept in
sel for defendant direct attention to the tes- a toolhouse at night, and this toolhouse he
timony of plaintiff given on cross-examina. kept locked and retained the key himself.
tion, to the effect that, if he had not been In Prezeau y. Davis, 67 Mont. 523, 216 P.
injured, he would have continued the em- 773, this court said:
ployment and the use of the defective pick. "For the purpose of providing a safe place
But counsel would have us reverse the rule, for an employee to work, or of assuring him
and consider plaintiff's testimony in the light that a known defect will be remedied, a fore-
most unfavorable to him, and this we may

man is the representative of the employer."
not do. But even if we consider the evi- Grant v. Nihill, 64 Mont. 420, 210 P. 914; 4
dence referred to, it does not follow that Labatt on Master and Servant, & 1344, and the

cases cited in the notes.
a jury would not be justified in finding that
the promise of defendant was the inducing
cause for plaintiff's continuing his work.

We conclude that plaintiff's evidence, when
In Missouri, K. & T. Ry. Co. v. Brown viewed in the light most favorable to him,
(Tex. Civ. App.) 180 S. W. 1117, the court required a submission of this case to the

jury, unless the character of the instrumen

tality with reference to which the promise "The fact that the jury found, upon testi

was given, affects the result and compels a
mony which seems to have warranted it, that

different conclusion,
the plaintiff intended to continue in the em-
ployment of the defendant, using the lifting

It is conceded by counsel for plaintiff
jack, 'if he hadn't got his finger hurt,' does that the pick in question is a simple tool
not, under all the facts and circumstances in within the meaning of that term as it is em-
evidence, require a holding that he did not ployed in the law of master and servant,

and it is over the application of the so- I did not fail in furnishing a proper ladder for called simple tool doctrine that the particu- | the use of the plaintiff.” lar controversy herein is waged.

The rule has its very foundation in the [10-12] The general principles of law fact that the appliance with which the servwhich define the duty of the master, and de- lant is required to work is in a defective confine and limit the doctrine of assumption of dition, and, by reason thereof, the hazards risk, are well settled, and, for the purposes of the employment are increased. If the of this appeal, may be stated briefly as fol

appliance is not defective, there cannot be lows: It is the duty of the master to exercise ordinary care to provide the servant any room for the application of the rule or

for a discussion of its limitations; hence with reasonably safe tools and appliances, it would seem to follow that, in so far as and to see that they are kept in a reason- it limits the application of the rule, the deably safe and suitable condition for use.

cision of the New York court is obiter dicIf the servant, with knowledge that the ap

tum. But even so, the case has been folpliance furnished for his use is in dan

lowed in other jurisdictions, and was folgerously defective condition and, with an

lowed by the Supreme Court of New York appreciation of the danger which its continued use involves, voluntarily continues in Baumwald v. Trenkman, 88 N. Y. S. 182,

decided in 1904. to use it, he assumes the risk.

If the ap

Corcoran v. Milwaukee Gaslight Co., 81 pliance furnished for the use of the servant

Wis. 191, 51 N. W. 328, likewise grew out is a simple tool, he assumes the risk of in

of the use of a defective ladder. After rejury arising from the use of it. Upon the ferring to the general rule above, the court statement and application of these prin

said: ciples, counsel for the respective parties

"The allegations here fail to bring the case agree. [13] It is also a rule equally well settled in Marsh v. Chickering, 101 N. Y. 396, the rule

within the rule stated. Besides, as indicated that, if the servant discovers that the ap- is hardly applicable to a case like the one at pliance furnished for his use is in a danger- | bar." ously defective condition, and he makes proper complaint to the master, and the

Meador v. Lake Shore & M. S. rty. Co., master promises to repair the defect, the 138 Ind. 290, 37. N. E. 721, 46 Am. st. Rep. servant, in reliance upon that promise, may 384, also involved an injury arising from continue the employment and the use of the the use of a ladder. The court limited the defective appliance for a reasonable time rule so as to exclude the servant injured during which period he is relieved of the by the use of a simple tool, upon the authorburden of assumption of risk, unless the ity of Marsh v. Chickering, and Corcoran danger is of such imminent character that v. Milwaukee Gaslight Co. a reasonably prudent person would not be

The case of Webster Mfg. Co. v. Nisbett, justified in taking the chances of injury. 205 Ill. 273, 68 N. E. 936, grew out of an As we understand counsel, they agree upon injury caused by the use of a defective hamthe statement of this rule, but fail to agree

mer. The court applied the same limitation upon its proper application, and the fact to the rule, citing Marsh v. Chickering and that they fail to agree is not surprising Meador v. Lake Shore & M. S. Ry. Co., and when it is recalled that the courts of last the decision was followed in Gunning Sysresort are unable to agree upon the same

tem v. Lapointe, 212 Ill. 274, 72 N. E. 393, question.

and in Kistner v. American Steel Foundries, Counsel for defendant contend that the 233 Ill. 35, 84 N. E. 44. 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

In Turkey Foot Lumber Co. V. Wilson, from the use of a defective ladder, and the 182 Ky. 42, 206 S. W. 14, the court referred New York court denied to the plaintiff the to cases which had established the simple right to recover, upon the theory that the tool doctrine in that state, and said: 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. 0. & T. P. defective. The court said:

Ry. Co. V. Burton, 184 Ky. 2, 211 S. W. "The evidence would not justify a recovery, 186. The force of these decisions is impaired for the reason that the defendants (master] / 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 Counsel for defendant also cite Musser from a practical standpoint. Sauntry L. L. & M. Co. v. Brown, 126 F. In Gunning System v. Lapointe, the Illi. 141, 61 C. C. A. 207; Railway Co. v. Kelton, nois court said: 55 Ark, 483, 18 S. W. 933; Rabm v. Rail

“The cases where the rule of assumed risk way, 129 Mo. App. 679, 108 S. W. 570, and is suspended, and the servant exempted from Brewer v. Coal Co., 97 Tenn. 615, 37 S W. its application under a promise from the mas549; but these cases are not in point. In ter to repair or cure the defect complained of Musser-Sauntry L. L. & M. Co. v. Brown, are those in which particular skill and expethe decision is placed squarely upon the rience are necessary to know and appreciate ground that injury from using the defective the defect and the danger incident thereto, or appliance was so imminent that the sery

where machinery and materials are used of

which the servant can have little knowledge, ant was culpably negligent in continuing to and not those cases where the servant is enuse it, even after a promise by the master gaged in ordinary labor or the tools used are to repair; and the decision in Railway Co. only those of simple construction, with which v. Kelton is placed upon the same ground. the servant is as familiar and as fully underIn Rahm v. Railway, the injury which gave stands as the master” rise to the action was inflicted in Illinois, and the Missouri court merely applied the

This court also fails to suggest any reason rule as it existed in Illinois. The decision why the expert mechanic, who knows the in Brewer v. Coal Co. involved only a ques- defects in the machinery with which he tion of pleading. It was held that there works, appreciates the danger of using it was not any allegation that the servant re

in its defective condition, in fact, is just lied upon the master's promise, and it was

as familiar with it as is the master, should not disclosed how long before the accident be relieved of the assumption of risk by the the promise was made,

master's promise to repair; but the same We have searched these authorities for a immunity should be denied to the servant reason for the limitation thus imposed upon who uses a simple tool with wbich he is no the general rule, but have failed to find any

more familiar than is the expert with his satisfactory to us. In Marsh v. Chickering,

machine. A rule without reason would not it is said that the rule which relieves the commend itself to any one, and there must servant from the assumption of risk after be some rational theory underlying the rule the master's promise to repair has been which relieves the servant of the assumption given

of risk after the master has promised to re“is one of a just and salutary character, de

pair. signed for the benefit of employees engaged in

Speaking generally, the risk is upon the work where machinery and materials are used, master in the first instance, by virtue of the of which they can have but little knowledge, contract of employment. The burden shifts and not for those engaged in ordinary labor to the servant when, with knowledge of the which only requires the use of implements with defective appliance and an appreciation of which they are entirely familiar."

the danger, he voluntarily continues to use

it, under the maxim volenti non fit injuria. That language is referred to approvingly The effect of the servant's complaint, then, in Meador v. Lake Shore & M. S. Ry. Co., must be this: Webster Mfg. Co. v. Nishett and Corcoran

"I am unwilling to continue to use the dev. Traction Co., above. If these courts mean fective tool, because, if I am injured by the · what they say, then the application of the use of it, I will be held to have assumed the rule to the facts of any given case depends risk, and I will quit the employment rather upon the extent of the servant's knowledge than take the chances of injury.” of and familiarity with his working tool, rather than upon the simplicity or

If the master's promise is to be given any plexity of the instrumentality itself. If the effect whatever, it must be held to be tantarule was intended only for the benefit of mount to saying to the servant: laborers using machinery and materials, of

"If you will continue the employment and which they have but little knowledge, then the use of the defective tool for a reasonable it sets a premium upon ignorance and stu

time, I agree to relieve you of the burden of pidity. It denies the right to recover, not assumption of risk which otherwise would fall

upon you." only to the servant who uses simple tools, but as well to every skilled mechanic using By continuing the employment in reliance the most intricate machinery, if he has the upon that promise, the servant accepts the mental capacity and technical knowledge to offer, and a new agreement is created. In understand his machine, know its defects, Holmes v. Clarke, 6 Hurls. & Norman, 349, and appreciate the danger of using it in its the English court said: defective condition. If it applies only to “It must be considered that the master takes the servant using machinery so complicated upon himself the responsibility of any accident that even an expert machinist can acquire that may occur during that period.”


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