Southern Railway Co. v. Hensley

Me. Chief Justice Neil delivered the opinion of the Court. Plaintiff in error was sued by the defendant in error in the circuit court of. Knox county, for an injury alleged to have been tortiously inflicted upon him, in the course of some work he was doing for the latter. The facts were these: The defendant in error was an employee of the plaintiff in error, in its Coster yards at Knoxville, along with a large number of other persons. The laborers worked in pairs; defendant in error and one Foust were companions. They were engaged in dismantling cars. In the performance of this duty they were required to cut iron rods to enable them to separate the car into its constituent parts. They used two tools, a cleaver and a sledge hammer. The cleaver had a sharp edge or surface on one end, and on the other it had a hammer — 410 — head. Into the center of the tool was thrust its handle. In the performance of the work in hand it was required that one of the companions should hold the sha.xp edge of the cleaver on the rod while the other struck the ham•mer head of this tool with the sledge hammer. In this way the rods were severed. The handle of the cleaver was not wedged tightly in the eye. It did not need to he tightly wedged when used simply in the manner just described. Moreover, wedging the handle tightly into the eye of the cleaver bred inconvenience for the laborer whose business it was to sharpen it, because it .could not be sharpened without taking it off the handle. It required to be sharpened frequently. So it was that very few of the cleavers had tightly fitted handles. However, although it was not necessary to use the cleaver as a hammer, still plaintiff in error’s laborers did frequently so.use it in the progress of the work, after the cutting was done, in knocking the pieces of metal apart; and this was practiced under the eye of the vice principal, Reed, and he raised no objection. Defendant in error’s companion, Foust, at the time the injury occurred, was so using the cleaver. He was trying to knock two pieces of metal apart, with the result that the cleaver flew off of its handle, and, after striking a log, rebounded and struck the defendant in error on his foot, seriously injuring him. The defendant in error and Foust held the cleaver and used the sledge hammer interchangeably; that is, sometimes defendant in error would hold the cleaver and Foust would strike, and vice versa. So both had an opportunity of examining the — 411 — cleaver and ascertaining that the handle was not wedged on. These tools wore not selected by the laborers, but at night were all turned in to the company, and the next day were issued to the various laborers, with the result that no laborer would necessarily get the same tools the next day. The tools that were used by Poust and defendant in error were issued, on the day in question, to Poust, and afterwards used by them alternatively in the manner stated. Poust says, in his testimony: “It was not customary for the handles to be wedged in the cleavers. They furnished them to us without being wedged on; I know that. All you had to do to tell that the handles were not wedged on was to look at them. Mr Hensley would sometimes do the driving and I would hold the cleaver, and I would sometimes do the driving and he would hold the cleaver. At the time Mr. Hensley got hurt, he didn’t do all the kinds of work I did; he was just learning, you know. I don’t remember just how. long he had been there. He had not been there long, though. There wasn’t anything complicated about any of the tools we worked with there; they were just simple tools; tools we would use every day in work of that kind.” This witness further says, speaking of Hensley: “He was'to work with me. He was called my ‘bud-die.’ I was to show him what to do about taking the cars down. He was my helper, or assistant. I was supposed to direct that work, what work was to be done by us.” — 412 — Hensley testifies tliat lie had been working for the company two or .three weeks. The plaintiff in error made a motion for peremptory instructions in the trial court, hut this was overruled. There were verdict and judgment for $425. The plaintiff in error appealed to the court of civil appeals, and, that court reversed the judgment and dismissed the action, holding that the motion for peremptory instructions should have been sustained. The case has reached us on the writ of certiorari. • We are of the opinion that the court of civil appeals reached the correct conclusion. The cleaver was a simple tool. The fact that the handle was not wedged was apparent from a mere casual observation. So the defendant in error had as good an opportunity to judge of its condition as the plaintiff in error had. Under such circumstances there can he no recovery. Harry Sivley v. Nixon Mining & Drill Co., 128 Tenn., 675, 164 S. W., 772, 51 L. R. A. (N. S.), 337; Roofing & Manufacturing Co. v. Black, 129 Tenn., 30, 164 S. W, 1183. It is insisted, however, that inasmuch as the tool was in the hands of defendant in error’s co-worker at the time the injury occurred, the rule does not apply. Under such circumstances the authorities also hold that it does not apply. Noble v. Bessemer Steamship Co., 127 Mich. 103, 86 N. W., 520, 54 L. R. A., 456, 89 Am. St. Rep., 461; Missouri, K. & T. R. Co. v. Quinlan, 77 Kan., 126, 93 Pac., 632; Campbell v. Gillespie, 69 N. J. Law, 279, 282, 55 Atl., 276; Pushcart v. New York Shipbuilding Co., 81 N. J. Law, 261, 81 Atl., 113; Williams — 413 — v. Garbutt Lumber Co., 132 Ga., 221, 64 S. E., 65. The ground on which these decisions rest is, in substance, that, while the general rule applies to simple tools as to others, that it is the duty of the master to furnish tools reasonably safe, yet if they are of the simple character indicated and a casual inspection would disclose the defect in them subsequently complained of, and to which the injury is attributable, the servant is charged with notice of what he could have observed by such attention, and is held to have assumed the risk thereof; his opportunity of observation being equal to that of the master, and the tool being of such character that no skill would be required to observe its condition, but that where the tool which did the injury was in the hands of a co-worker the rule cannot, in general, apply, because it is not the duty of any laborer to examine even casually tools in the hands of his co-workers or fellow servants, and such fellow servants cannot assume risks for any one but themselves. These cases, however, would not apply under such facts as we have before us, because here, as stated, the two co-workers used the tools interchangeably, and so the cleaver became the tool of each man, and each had a fair opportunity to observe the very obvious fact that the handle was not wedged. It is insisted in behalf of the defendant in error that Foust occupied the position of vice principal to him. This is not a correct view. He was only a leader-in the particular work, and such an one is. not a vice principal. Railroad v. Edwards, 111 Tenn., 31, 45, 46, 76 S. W., 897. In addition to this, at the time the injury — 414 — occurred he was not doing such work as a vice principal does, but the work of a common laborer, and for that reason the contention could not he maintained as laid down in Allen v. Goodwin, 92 Tenn., 385, 21 S. W., 760; Railroad v. Edwards, supra; Allen v. Chamberlain, 134 Tenn., 438, 441, 183 S. W., 1034. The result is the judgment of the court of civil appeals must he affirmed with costs.