East Tenn., Va. & Ga. Railway Co. v. Perkins

Lumpkin, Justice. 1-2. Plaintiff in error made to the court below several written requests to charge the jury, many of which were legal, and some of which were not. The general charge was a correct presentation of the law applicable, and covered not only the above mentioned requests in so far as they were legal, but also all substantial .questions involved in the case. This is all a charge should be required to do. 3. The facts adduced upon the trial appear in the reporter’s statement, and show, we think, that the verdict should have been in favor of the defendant. It was not foreseen that any instrument specially adapted to the work in which plaintiff was engaged at the time he was injured would be needed, because this particular work was itself made necessary by an accident. As soon as the emergency arose, the superintendent not only offered to supply plaintiff with a proper instrument with which to do this work, but promptly went off to secure one, and was actually bringing it to plaintiff when the injury occurred. Plaintiff', however, chose to rely upon his own experience and judgment, selected a tool from a large number which had been put in his charge, and began work before the superintendent could possibly supply one which would be proper. The instruments from which plaintiff made his selection were not specially designed to do the particular work made necessary by the emergency which had arisen, the evidence showing that such work required a more perfect tool. It is probably true that the tool with which plaintiff’ attempted to do this work was not a proper one for the purpose, but the company did not hold it out as such, as plaintiff must have known; and to say the least, he-might have waited until the return of the superintendent with what the latter considered a proper instrument for this occasion. Such an accident as this is likely to happen at any 9 time, and may have occurred no matter what sort of chisel the plaintiff had used. It was one of those unfortunate occurrences incident to the employment in which he was engaged, — an accident which in all probability no amount of diligence on the part of either plaintiff or defendant could have prevented.. It is a well established rule of the law that every man, when he enters upon a particular employment, must assume the risks and hazards usually pertaining thereto, and accordingly, the plaintiff, under the facts disclosed by the record, was not entitled to any recovery against the defendant. Judgment reversed.