Parker v. W. C. Wood Lumber Co.

Whiteield, C. It is earnestly insisted by the appellee, which obtained a peremptory instruction in the court below, after the evidence for the plaintiff was in, .that the cant hook in question is a tool of so simple and common' and ordinary use as that the servant had equal opportunity of ascertaining any defect in it with the master, and that consequently with respect to such simple tool, of such ordinary and common use, the rule requiring the master to. inspect tools furnished the servant does not apply. Por a full discussion of this doctrine, see Labatt on Master and Servant, vol. §§ 405', 406, 407. From that discussion, it will be seen that this doctrine is said to be well settled in some jurisdictions; but it is also expressly laid down that it has no application in the case of such simple tool, except where the defect in the tool is obvious or patent. We call special attention to two extracts from that discussion, found at the close of section 407. It is there said: “As a matter of ultimate analysis, it will be found that the logical basis of the doctrine which thus places the master and the servant upon different footings in regard to imputed knowledge of risks is to be found in the fact that it is the special and appropriate function [755] of the former to furnish and supervise the instrumentalities of his business, and the special and appropriate function of the servant to use those instrumentalities. The duty of making a reasonably careful examination of the instrumentalities is a natural and necessary incident of the former function, but not of the latter.” “In the opinion of the present writer, the practice of comparing the master’s and the servant’s means of knowledge has been productive of much confusion of thought, which is apt to operate to the servant’s disadvantage by imposing upon him too high a standard of care. It would have been far preferable to refrain from importing into the discussions in- this class of cases an element which is wholly unnecessary, inasmuch as the ultimate question, in every instance, must be, simply, whether a person who had the same natural and acquired capacities for observation, and had been placed in the same position as the servant, would have discovered the danger by the exercise of ordinary care. The extent of the obligatory knowledge of the master under the given circumstances seems to be a wholly irrelevant consideration. ’ ’ Again it is said in Magee v. North Pacific Coast Railway Company, 78 Cal. 430, 21 Pac. 114, 12 Am. St. Rep. 69, that the true rule has been stated by Shearm. & Red-field on Negligence (4th Ed.), § 217, as follows: “It has been often said that the master is not liable for defects in such things to a servant whose means of knowledge thereof were equal to those of the master. But this is an erroneous statement. The master has no right to assume that the servant will use such means of knowledge, because it is not part of the duty of the. servant to inquire into the sufficiency of these things. The servant has a right to rely,upon the master’s duty so to inquire; and the servant may justly assume that all these things are fit and suitable for the use which he is directed to make of them. The true definition, is that, when circumstances [756] make it the duty of the servant to inquire, it is contributory negligence on his part not to inquire.” It is true Labatt criticises this to some extent, but in our opinion it states the rule logically and correctly. Even in the case of a simple tool, the question comes to this: Did the servant know of the defect in the tool, or ought he to have known of it by the use of ordinary care? The doctrine so called does not seem to us to be any new doctrine, properly considered, but merely a new application of the very old doctrine of contributory negligence. In the twentieth volume of the second edition of the American and English Encyclopedia of Law, .at pages 82, 83,. and 84, instances are cited from a large number of cases of tools not deemed simple within the meaning of this rule. In that list of cases are included “ chairs, hame straps, hammers, hooks, kettles, ladders, mauls, poles, ropes,” etc. Surely all these tools just mentioned are much less simple in their structure than the cant hook such as it is shown to be by the testimony in this case. After the most careful consideration, we are of the opinion that the cant hook in this case cannot be classed properly as one of these simple tools within the meaning of this doctrine. This leaves open for consideration the single inquiry: Was the plaintiff guilty of contributory negligence, barring recovery in this case? We have examined the testimony again and again on this point. It is true that in his direct examination P'arlcer stated that to the best of his knowledge the cant hook by which he was injured was the same hook he had used the day before the injury; and he also said that he had worked with that hook some two or three months, and that he had worked for the mill something over a year and at another sawmill in Montgomery county for two years, and that he had had considerable experience with cant hooks. But on cross-examination be said twice that he saw nothing wrong with the hook the day before, and that it was apparently a [757] good hook, and finally he said he couldn’t swear that he saw this identical hook a day or two before, and at last he said, when asked if it was the same hook, as far as he knew, he said, “Not that I know of.” On the particular point, then, as to whether the hook with which he was injured was the same hook he had used the day before it cannot fairly be said that he admitted that it was the same hook, at least his testimony on this point is in great confusion. As to the point that the defect, which defect consisted of the fact that there was no nail or bolt in the hole in the top of the cant hook, fastening the cuff rigidly to the cant hook, he said as to the point that the defect was patent and obvious, and could not be seen at a glance by any one, when pressed, “Why I don’t know, I couldn’t say just by a mere glance;” that'is, he could not say that he could see the defect at a mere glance. He did say that he supposed a man picking it up and looking for the hole could see it, but he did not suppose that a man just picking it up would. What he did was just simply to pick it up and use it. So far, therefore, as the testimony of the plaintiff himself is concerned, it cannot be said to be clearly established, either that the cant hook with which he’was injured was the same one he had used the day before, or that the defect in it was so open and obvious that he could have seen the defect by a mere glance. It is true that Conner, another of plaintiff’s witnesses, did say that the cant hook was in such condition that it could be discovered by a mere glance at it; but this testimony, like the testimony of the plaintiff, was for the jury. If, in this case, the defect in the cant hook w;as so obvious that the plaintiff did know of the defect, or by the use of ordinary care ought to have known of it, then he is precluded from recovery-by his own contributory negligence. In determining whether he did know, or by the use of ordinary care ought to have known, of the [758] defect, it is proper to look, not only to his testimony directly on that point, hut to all the evidence showing the extent of the use he had made of this cant hook, and the extent of his familiarity with cant hooks just like this one. But whether the evidence all looked to and properly weighed, shows that he did not know, or by the use of ordinary care ought to have known, of the defect, is, we feel constrained to hold, under our decisions, a question of fact for the jury. Therefore we are of the opinion that, on the testimony in this record, the case should have gone to the jury. Reversed and remanded. Per Curiam. The above opinion is adopted as the opinion of the court, and, for the reasons therein indicated, the judgment is reversed, and the cause remanded for a new trial.