Atchison, Topeka & Santa Fé Railroad v. Sadler

Opinion by Simpson, C.: The material facts as found by the jury iu answer to special interrogatories submitted by both parties, and from the evidence, are as follows: William-.Sadler, a young man, on the 31st day of March, 1885, was employed by the Atchison, Topeka & Santa Fé Railroad Company asa section hand on section No. 5, in Johnson county, at the rate of $1.10 per day. He was employed by the foreman, who had authority from the company to employ and discharge section-men, and he worked under the authority and direc — 138 — tion of such foreman. Sadler continued in the employment of the company until sometime in .the month of June, when he was ordered by the foreman to use the spike-maul and drive spikes. Sadler objected to this class of work, and informed the foreman of his inexperience, but he was compelled to work with the spike-maul for more than an hour on that day, and on the next day he worked an hour in the forenoon and until about four o’clock in the afternoon, when a spike flew from under the maul when it struck the-spike, and struck Sadler on the left leg, cut the flesh, and fractured the bone; the. wound bled profusely, and produced much pain. Two weeks before this time, Burkett and Ball, two of the section-men, in the presence of Sadler had complained to the foreman of the defective and unsafe condition of the tool, and the foreman told them that the company had promised him new tools for the section, but that they had not come yet. The section gang were engaged in taking up old rails and replacing them with new ones, and the old spikes were used in fastening the new rails. The spike-maul used by Sadler was an old one, worn on the face, aud at one side of the face were “chipped” pieces or a piece broken out. The spike was an old and greasy iron one, about five inches in length, with about a half-inch bent at the top, and very rusty. Sadler struck the spike with the maul, and the spike flew from under the blow and struck him on the leg. When he commenced to work he looked for a moment at the maul, when the foreman called out to him in a loud voice, “ Hurry up; everything is all right,’ ’ and he immediately went to work. Immediately after the injury Sadler’s attention was called to the condition of the maul by Burkett, a fellow-workman, and they examined it and found that it was not only worn out, but was badly rounded and chipped off from the face. He worked for two days after the injury, driving spikes, and thinking the injury was not serious, when the swelling of the limb and the pain compelled him to quit, and place himself in the charge of a physician. Sadler testified at the trial that he had attempted to examine the maul before he went to work with it; that he “took — 139 — it up in this shape” (illustrating), and was looking at it; that he saw the edge was a little rounding, when the foreman hallooed out to “ Hurry up; everything is all right; ” that he then went on without further examination; that it was the same maul which he had used in the forenoon, and used in the afternoon from ten o’clock until he was injured, “along in the evening.” The jury in answer to a special interrogatory, found that the plaintiff below knew prior to the accident that the maul which he was using was defective, on account of having been worn around the edges, and on account of having a small piece chipped out of the face of the maul. They also found that the plaintiff below knew at the time he was hurt that the spike he was attempting to drive was old, rusty, and greasy. There is no complaint or allegation in the petition of the defendant in error that the injury was occasioned by the defective condition of the spike. . He bases his right to damages, upon the defective condition of the maul. There were eight mauls among the tools which were for the use of this gang of section-men; and the jury found that there were four mauls in use at the time the injury occurred. The findings of the jury may be formulated as follows: First: The foreman knew that the maul used by Sadler was defective. Second: The foreman had promised the section gang in the presence and hearing of Sadler to furnish new and perfect mauls. Third: Sadler attempted to examine the maul before he used it, but was commanded by the foreman to “Hurry, up; everything was all right.” Fourth: Sadler was inexperienced in the use of a maul, and in driving spikes, and so informed the foreman before he commenced to use the maul. Fifth: The foreman gave him no instructions as to its use, so as to prevent injury. Sixth: Sadler was not guilty of any fault, negligence or want of ordinary care contributing to the injury. Seventh: The railroad company was guilty of negligence and want of ordinary care in furnishing defective tools and compelling their use. — 140 — 1. Reversal* ergraveimd matenai. This case was tried by a jury, with great skill and ability on both sides, and every possible question that could be raised on the state of facts is presented in this record. We want to say in a general way, that we are impressed with the unusual fairness of the trial for a case of this character. The general instructions of the court, and the general verdict of jury, as well as their answers to the special interrogatories submitted by both sides, are all characterized by an absence of passion and prejudice, and a liberal regard for the rights of all, so much to be desired in judicial investigation. We shall not disturb a verdict arrived at by such means, unless there are such grave and material errors as absolutely compel a reversal. — 141 — 2. Defective tools; new ones, promised; injured employe; recovery. — 140 — The counsel for the plaintiff in error complain of the admission of the testimony of Burkett; and they say that he was permitted to give his opinion that the spike-maul in use on the section at the time of the accident to Sadler was unsafe. They also complain that the same testimony was given by the witness Weber, over their objection. Both of these witnesses belonged to the section gang; they both testified that they had worked with the mauls; they both described the condition of the maul used by Sadler at the time of the injury, describing its defects, and stating that it was unsafe. We can see no objection to this. If it was expert evidence, the witnesses had qualified themselves for the expression of opinion. They stated to the jury the actual condition of the maul, and on their statement the ordinary, common knowledge of the jury would authorize the conclusion that the maul was unsafe. The testimony of the witness Burkett, that he told the foreman that the tools were unsafe, was admissible for the purpose of proving the knowledge of the company of the defective condition of the maul, if for no other purpose. This was one of the material facts which the plaintiff had to establish, and it could be brought to the knowledge of the company in that manner. We see no objection to it. There is no doubt on the evidence but that the company knew that the maul was defective, and through the foreman had promised — 141 — to furnish the gang new tools. This promise was made in the presence and hearing of Sadler; and we think he had a right to rely on it under the particular circumstances of the case. He would certainly be bound by any general1 orders or directions given by the foreman to the gang of men with whom he was associated in work on the section. (U. P. Rly. Co. v. Fray, 31 Kas. 739.) And he ought to have the benefit of any promise made by the foreman to the men with whom he was associated. (2 Thompson on Negligence, 1017; Perry v. Picketts, 55 Ill. 234; Parody v. C. M. & St. P. Rly. Co., 15 Fed. Rep. 205.) A sufficient time had elapsed since the attention of the foreman had been called to the defective condition of the mauls in use on the section, for the company to furnish new and perfect tools when this injury occurred; and no attempt is made to explain the delay, or to show that any steps had been taken to replace the mauls. After the defects of the tools have been called to the attention of the company, and a reasonable time has expired within which the company ought to have furnished new or perfect tools, their continued use is gross negligence. (55 Ill. 234.) It is highly probable that some of the instructions are subject to criticism, but taking them all together they so fairly present the questions raised on both sides, that it is almost impossible that the jury could be misled by them to the prejudice of the plaintiff in error. Taking all the circumstances and facts of the case into consideration, the inexperience of the defendant in error in this particular line of work; his notice to the foreman in that respect; the fact that he was required to work with a defective tool; that he had no sufficient opportunity to examine it; that his attempt to do so was interrupted by the foreman by a command to “Hurry up,” coupled with an assurance that “everything was all right;” the neglect of the company for more than a reasonable length of time to. furnish new tools, after repeated warnings that those in use were defective; the freedom of the jury from passion or prejudice; the evident desire of the court to fully and fairly — 142 — instruct on all material questions; the verdict of the jury and its approval by the trial court on the motion for a new trial, we are disposed to think that substantial justice has been done, and no error committed that ought in the interests of justice and the due administration of the law to compel a new trial. It is recommended that the judgment be affirmed. By the Court: It is so ordered. All the Justices concurring.