Long v. Chicago, Bloomington & Decatur Railway Co.

Mr. Justice Frost delivered the opinion of the court. This is an appeal from a judgment for $1000, which appellee obtained against appellant in the Circuit Court of DeWitt county for a personal injury sustained in the operation by appellee of a lifting jack, while in appellant’s employ as a section-hand. Plaintiff testified that a switch frog had been raised by the jack, and as a car was approaching, the foreman told him to trip the jack, and that he walked over to the jack, raised the lever, threw the trip-lock over, and started to press down; that something slipped and the lever flew up and broke his right arm, about two or three inches below the elbow. Numerous charges of negligence on the part of the defendant are set forth in the declaration, namely, that the ratchet and notches on the jack had become worn so that it would not properly hold, and the bolt coming through the ratchet was loose and worn and dangerous to use in raising and lowering a track; that the jack was sprung, loose and insecure, and had an improper trip-hook; and that the same broke and caused the injury; that the plaintiff was not experienced in the use of the jack, and that it was a complicated and dangerous tool, and that defendant failed to warn plaintiff in using it; that the defendant negligently failed to inspect the jack, and that the notches of the jack had become so worn that they did not hold properly. The accident happened October 26, 1909. Plaintiff states he had worked the lever of the jack eight or ten times before. At the time of the accident three men were working raising the track. There is evidence in the record that the jack had been used for four or five years; that it had slipped or kicked the day before and several times previous; that the teeth of the ratchet and the dogs were worn to some extent, that the trip-hook was worn, and that it broke on the occasion in question, revealing a flaw in the iron. There is no evidence that plaintiff was negligent or failed to exercise ordinary care in doing what he was instructed to do. Just what particular defect caused the injury, whether from a defective trip-hook, or the worn condition of the ratchet teeth, or the dogs, or because of the general worn-out condition of the jack, does not certainly appear from the evidence. Mr. L. II. Bond, roadmaster of the Springfield division of the Illinois Central Railroad, and thoroughly familiar with the operation of such matters, and a witness for appellant, testified that track jacks are under a very severe strain, and if worked a great deal, naturally wear; that if the jack had slipped on numerous occasions when weight had been put upon it there must have been something the matter with it; something would have to be wrong about it, either the ratchet or the dogs. While plaintiff may have used the jack before and knew its operation, it does not appear that he knew its condition was such as to make its operation dangerous, or that he knew what might be expected to happen from its use under the particular circumstances in question. It was the duty of the defendant to make a proper inspection of appliances such as this, and not to furnish plaintiff a defective and dangerous instrument. The servant is- not required to make an inspection of tools to ascertain whether or not they are in a dangerous condition, but may assume that the master has performed his duty by exercising reasonable care to provide reasonably safe tools, unless they are what is known as common tools. The Allen B. Wrisley Co. v. Burke, 203 Ill. 250. Where both master and servant know of a defective appliance, but the servant does not know that the defect subjects him to the risk of an injury, he is not held to have assumed the risk, unless he should have comprehended the danger by the exercise of ordinary care. The Chicago Screw Co. v. Weiss, 203 Ill. 536. We do not think the jack in question comes under the head of common tools. It was quite a complicated affair with ratchets, levers, etc., and so complicated that it required expert examination and opinion to ascertain the cause of its working improperly. The evidence warranted the jury in finding that plaintiff was exercising ordinary care at the time, and that the accident occurred from a defective condition of the jack, that was known or ought to have been known to the appellant by the exercise of ordinary care and diligence in tlie inspection of the jack, which it was its duty to have made. The amount of the judgment is not excessive. There was no error in the admission of the testimony of appellee’s mother, Mary Powers. No error appearing in the record, the judgment will be affirmed. Affirmed.