Jackson v. Chicago Great Western Railroad

1 Reported in 205 N.W. 689. Action to recover damages for personal injuries sustained by the plaintiff while employed by the defendant railroad company in interstate commerce. There was a verdict for the plaintiff and the defendant appeals from the order denying its alternative motion for judgment or a new trial. The plaintiff was a fireman on an interstate freight train. At Readlyn, Iowa, the engine took water. In pulling the spout from the standpipe to the manhole in the tank the plaintiff fell to the ground and was injured. The negligence charged is the furnishing of a defective hook for use in pulling the spout. Regularly the supplyman placed on the tender before it left the yards a clinker hook, used in cleaning the grates in the firebox, and a spout hook, used in drawing the arm from the standpipe over to the manhole in the tank. The plaintiff's claim is that there was *Page 60 furnished him a clinker hook, and that in lieu of the regular spout hook he was given a clinker hook which had been shortened by cutting off a portion, and that the bent portion or hook was burned and scaled and about an inch from the extreme end had a crack, and that as he pulled the arm the hook broke and loosened and he was precipitated to the ground, the hook with him. 1. It is the contention of the defendant, apparently not much urged at the trial, that the spout hook was a simple tool or appliance and that the defendant was not negligent in respect of it. It relies particularly upon the late case of Mollock v. G. N. Ry. Co. 162 Minn. 90, 202 N.W. 49, where a shovel was involved. And Koschman v. Ash, 98 Minn. 312, 108 N.W. 514,116 Am. St. 373, (hammer); Anderson v. Fred Johnson Co. 116 Minn. 56,133 N.W. 85 (stepladder); and Kromer v. M. St. P. S. Ste. M. Ry. Co. 139 Minn. 424, 166 N.W. 1072 (wrench), are cited in support. Many applications of the rule are to be found in the notes in L.R.A. 1918D, 1141; 51 L.R.A. (N.S.) 337; 40 L.R.A. (N.S.) 832; 13 L.R.A. (N.S.) 668, 687. The simple tool rule does not apply. The plaintiff did not select the hook. It was furnished him for use and the company owed the duty of ordinary care in furnishing a reasonably safe one. There may have been some duty of the plaintiff to inspect, but a failure to do so did not relieve the defendant, and at most was contributory negligence which would reduce damages. A case of value is Thompson v. C. G. W. R. Co. 164 Minn. 494,205 N.W. 439, where it was held that a claw-bar furnished a section man for removing spikes, defective because there was too much spread in the prongs, was not within the rule. 2. It should not be held as a matter of law that plaintiff assumed the risk. He knew that there was a defect in the burnt end of the hook just as he was about to use it. Whether he knew the danger and appreciated the risk, and so assumed it, was for the jury. 3. The more important question is whether the accident happened as the plaintiff claims, and whether the defendant was negligent at all. *Page 61 The plaintiff's testimony is positive that the hook was made from a clinker hook by cutting it off and shortening it; and that the bent end or prong broke as he was pulling the spout and he fell with it. The engineer and the head brakeman did not see the hook on the ground. It is not accounted for. The head brakeman fired the engine after the accident, took water, and says that the usual spout hook was on the tender. The testimony of the engineer accords. There is evidence that when the engine left the yards it was supplied with a clinker hook and spout hook. The jury could have found, would have been well justified in finding as we read the evidence, that the case of the plaintiff, in the features essential to a recovery, was a made one. It did not. The trial court, better placed than this court to value testimony and to judge the accuracy of the jury's work, was not of the view that the verdict was so without support that a new trial should be granted — even as a matter of discretion. We cannot say, as a matter of law, that the plaintiff's testimony is false. If true a case is made. Upon a new trial, upon the same evidence, there would be a case for the jury. 4. The verdict was for $10,000. The plaintiff was 34 years old. He had been a fireman several years. He was well on his way to employment as an engineer. He was earning about $2,200 a year. He was disabled from all work for 16 1/2 months in which time his wages would have amounted to $2,900. He suffered considerably. The bones about the ankle of his left foot were fractured. There was an attendant wasting of the muscles of the left leg. He wears a steel and leather brace. The injury is permanent and there is evidence that he will have but 50 per cent capacity. His work as a trainman appears to be at an end. We cannot hold the verdict excessive. Order affirmed.