Fordyce Lumber Co. v. Lynn

Kirby, J., (after stating the facts). It is insisted for appellant that the rule of law, devolving the duty upon the master to exercise ordinary care to provide the servant with reasonably safe instruments and appliances for the performance of his work and to exercise ordinary care in the inspection thereof, has no application to the facts of this case, which, it is insisted, comes vdtliin the exception to the rule, relating to simple tools and appliances, and that the court should have directed a verdict in its favor. The instrument complained of in this instance ivas; a common ordinary stick or strip about six feet long and one inch square, pointed at the end, and its structure and grain were obvious and as easily comprehended by the servant as the master and by one man as another. The sticks were not manufactured for the particular use except the sharpening at one end, and were selected from another department of the mill on account of their length and size adapting them to the use to which they were put. .There was no dangerous machinery in the chute, in the cleaning out and unchoking of which the sticks were to be used, with which the person using it could come in contact, and the sticks were not expected to last permanently or long, and were likely to be broken or split and destroyed in the using, as ivas apparent from the number supplied. Appellee acted upon his own initiative, and without direction from any one, and could consume as much time in unchoking the sawdust chute as was necessary without hurry or haste, and when the chute choked up, walked around the machine to where the pile of sticks lay, some' six or eight feet away, and picked up one of them for that purpose while his brother went downstairs to assist from below. The stick ivas an instrument or appliance as simple as any that can be used in the performance of any kind of work. Thompson on Negligence, says (vol. 4, sec. 4708 2 ed.) : “A servant assumes the risk of injuries from simple and ordinary appliances aud methods, the nature of which he understands, or which is easily understood. It is a part of this doctrine that the duty of inspection by an employer of the appliances used by his employees does not extend to the small and common tools of every day use, of the fitness of which the employees using them may reasonably be supposed to be competent judges.” In Labatt on ‘ ‘ Master and Servant, ’ ’ vol. 1, sec. 154, p. 331, it is said: ‘ ‘ That the duty of inspection does not extend to the small and common tools of every-day use, of the fitness for use of which the employees using them may reasonably be supposed to be competent judges.” In Masich v. American Smelting & Refining Co., 118 Pac. 764, a case where the plaintiff was injured by getting his hand caught between rollers in a rock crusher about which he had been employed for some time; his work required him to shovel ore into the breakers, and when a rock became lodged in the crushers or rollers, to push it through with a stick, for which purpose the company furnished sticks cut from rough pine boards. While attempting to push some rock through the rollers with a pine stick three feet long, one inch vide and half an inch thick, his hand and arm were drawn between the rollers and crushed. It was alleged that the smelting-company was negligent in furnishing him a defective stick, the surface of which was rough and splintered at the point where plaintiff took hold of it, and that by reason of its condition, his glove on his right hand became fastened to the stick, and was held by it so that he could not withdraw his hand from the glove or turn the stick loose, by reason of which his hand and arm were drawn between the rollers and crushed. The court held that the stick was a simple appliance, and that no negligence could be imputed to the master for the failure to inspect it, and quote in support of the decision from the opinion in Longpre v. Blackfoot Milling Co., 99 Pac. (Mont.) 131, as follows: “Among the practical duties incumbent upon him (the master) is that of inspection of the machinery and appliances to discover defects in them, both at the time of furnishing them and during the course of the employment ; for this is the only means by which he may guard the safety of those employed by him in the use of them. '* * * But it is not always absolute. It is not the duty of a railroad company or other persons engaged in great industrial enterprises, to inspect, much less to test, every tool or appliance put in the hands of an employee; this duty arises only when the appliance is of such character that a man of ordinary prudence would, under the same circumstances make the inspection as a precaution against injury to his servant. The master is not required to inspect simple appliances, such as hammers, saws, spades, hoes, lanterns, push sticks, and the like, the character and use of which are understood by all alike. A tool of this class is so simple in its construction, so well understood by men of ordinary intelligence that it would seem absurd to say that the master should make careful inspection of it before he commits it to the hands of his servant, who has the same capacity to understand its character and uses that he, himself, has.” Continuing, it said: “The cases cited and relied upon by this court in the Longpre case above, fairly illustrate the exception to the rule, which requires that the master shall inspect the appliance which he furnishes to his servant. So long as it is the rule of law that the master is relieved from the duty of inspecting simple tools and appliances, and that burden is imposed upon the servant, the rule must be susceptible of application, or it becomes a protection to the master in theory only, and is without practical value. =* * * rp]ie compiete description of the instrument as given in the record is a pine stick three feet long, an inch wide and one-half inch thick. If it was not a simple tool or appliances, then we are unable to imagine what application the term “simple” can have when used to characterize the instrumentalities of any occupation.” In Ry. v. Larkin, 82 S. W. (Tex.) 1026, a case where a brakeman complained of the railroad’s failure to inspect a lantern furnished him, which, by reason of some defect not patent,to ordinary observation, exploded and injured him, the court said: “It is not the duty of a railroad company to inspect every implement and tool that it furnished to its employees. That duty arises whenever the machinery or implement is of such character that a man of ordinary prudence will, under the same circumstances, inspect the machinery or implements as precaution against injury to the servant. * * * A master is not required to inspect the common tools and appliances which are committed to the custody of a servant who has the capacity to understand their character and uses. * * * If this requirement were sustained, then every farmer or housekeeper who furnished an ax to his or her servant with which to cut wood for use on the premises, or for other purposes, must use that care which would here be required with regard to the lantern by inspection to discover the condition of the axe before he purchased it, and during the use of it by his servant, he must keep up the order of inspection in order to insure safety. * * * Likewise, it is a matter of common knowledge that a .lantern globe is one of the simplest appliances that can be furnished to a servant for use as well as being in common use; and the court knows, as a matter of law, that it does not require special knowledge or skill to understand the lantern; nor is there any reason why the servant who handles it should not be fully acquainted with its condition, especially when, as in this case, it is committed to his exclusive control and care. There may be, and doubtless are, cases, in which it is a question of fact that should be submitted to the jury, as to whether the machinery or implements, tools and the like were of such character as to require inspection and safeguard against the injury; but there was no reason for submitting the question to. the jury in this case. ’ ’ See also Sterling Coal Co. v. Fork, 141 Ky. 40, 131 S. W. 1030, 40 L. R. A. (N. S.) 837, and case note on page 832 thereof; Vanderpoole v. Partridge, 112 N. W. 318, 13 L. R. A. (N. S.) 668, and authorities in case note; Sheridan v. Gorham Mfg. Co., 66 Atl. 576; 13 L. R. A. (N. S.) 687. The defect or cross grain in the stick, selected by the servant from the number supplied, was obvious and patent, and 'as easily discovered by the servant as it could have been by the master, and, it being.a simple tool, no duty devolved upon the master to inspect it, and appellant assumed the risk attendant upon its use. In Marcum v. Three States Lumber Co., 88 Ark. 36, the court said: “Where the servant is engaged in ordinary labor with tools of simple construction, which are used by himself alone, and where the facts are undisputed, reasonable minds must inevitably come to the same conclusion, hence, there is nothing to submit to the jury. ’ ’ See also St. Louis, I. M. & S. Ry. Co. v. Goins, 90 Ark. 392; Henry Wrape Co. v. Huddleston, 66 Ark. 238; Fullerton v. Henry Wrape Co., 151 S. W. 1005. It may be that if appellee had adopted a different method of unchoking the chute with the stick used, that no injury would have occurred in any event. If, instead of bearing down with his whol^ weight upon the stick to push it through, he had worked in unchoking it by prizing and lifting the obstruction therein from the side or end of the chute, he might have accomplished the purpose as well, and if the stick had broken, there would have been no throwing him forward nor upon the saws. The method of doing the work was entirely under his own control, as well as the selection of a stick from those furnished with which to do it. In Chicago, R. I. & P. Ry. Co. v. Smith, 107 Ark. 512, we said: “There is no hard and fast rule that may be laid down as governing the liability of an . employer for defects in common tools. In view of this condition, we do not undertake to say what state of facts the rule of liability should embrace, and what it should not. ’ ’ In that case, the servant was not permitted 'to make his own selection of the tool to he used by himself alone.- It follows, from the principles announced that no negligence was shown upon the part of the master, and that the injury occurred from an ordinary risk incident to the employment, which was assumed by appellee, upon engaging therein. The court erred in not directing a vérdict for appellant, and its judgment'is reversed'and the cause dismissed.