Barrett v. Chicago Bridge & Iron Co. , 1913 Ill. App. LEXIS 227 ( 1913 )

Mr. Presiding Justice Gridley

delivered the opinion of the court.

Counsel for plaintiff first contend that the trial court erred in instructing the jury at the close of plaintiff’s evidence to find the defendant not guilty. It is argued that plaintiff, when injured, was driving the drift pins in obedience to an order from the foreman of defendant, that under the circumstances plaintiff did not assume the risk of being injured by a flying chip of steel, and that the case was one for the jury. The doctrine of assumed risk has a well recognized exception in cases where the servant is .ordered by his master to perform work which is dangerous and where the servant does not appreciate the risk of performance. But this exception does not apply where the servant has full knowledge of the danger. “It is only where the servant has been misled by the order of the master that the exception exists.” Republic Iron & Steel Co. v. Lee, 227 Ill. 246, 259. “All persons of mature years and ordinary experience, and endowed with their natural faculties, must be held to understand the ordinary laws of nature, such as that water will run down hill, a falling body will strike the ground, etc., and it must be presumed, when such persons have knowledge of obvious defects in appliances or places with or in which they are engaged in performing, ordinary labor and with which they are entirely familiar, they will also comprehend the natural and probable results which will follow from a use of such appliance or from working in such place.” Montgomery Coal Co. v. Barringer, 218 Ill. 327, 332. In this case plaintiff was employed to perform labor which did not necessitate technical or especial skill. When he was ordered to drive the drift-pins in the retort he knew exactly what was required of him. An understanding of natural laws and strength of body was all that was necessary. He had observed other workmen engaged in that labor. He had frequently seen the drift-pins lying on the floor, some new and some with heads frayed. He had seen pins taken to the blacksmith shop to be repaired. He knew that repeated blows on the head of a pin by sledge hammers would cause the heads to fray over. He had previously been engaged in cutting steel with a cold chisel and hammer and knew that chips of steel would occasionally fly off. He knew, or ought to have known, that continuous blows on the frayed head of a pin would probably cause small pieces of steel to fly off. The danger of accident was remote, but the possibility of chips of steel flying was obvious. The sledge hammer which plaintiff was using at the time of the accident was in good repair. The particular pin struck was seen by plaintiff to be “peeling down like the skin of a banana.” It was not necessary to continue striking that particular pin. Other pins were lying near at hand and the particular pin could have been replaced by another in better condition. In Illinois Cent. R. Co. v. Brown, 107 Ill. App. 512, Brown was a common laborer in a section gang. It became necessary to cut off a part of a.flange of an ordinary rail and he was ordered by the foreman to assist in that work, to which he made no objections. While the foreman held the chisel on the rail, Brown struck the chisel with a hammer and a smáll particle of steel flew from the rail into one of Brown’s eyes and destroyed it. It was held that he could not recover, even on the hypothesis that the doing of this particular work was outside of the line of his regular work, and for the reason that the risk was quite as obvious to him as it could be to any one. In Webster Mfg. Co. v. Nisbett, 205 Ill. 273, Nisbett and a helper were working together in the shop of their employer. The helper was using a common tool, known as a “backing hammer,” the face of which had become somewhat chipped and out of repair. As the helper struck a blow, a small particle of steel hit one of Nisbett’s eyes, destroying the sight. It was held that the court erred, under the facts in evidence, in not directing a verdict of not guilty, even though it appeared that Nisbett had, previous to the accident, made complaint to the foreman as to the condition of the tool and the foreman had promised to have it fixed, coupled with an order to continue work with the tool. In Herricks v. Chicago & E. I. R. Co., 257 Ill. 264, 267, it is said: “It is the law that the master is not liable for a defect in a simple, ordinary tool procured and provided in the ordinary way. It is one of the essential facts to be proved by a servant seeking to recover on account of a defective tool or appliance, that he did not know of the defect and had not equal means with the master of knowing of it; (Goldie v. Werner, 151 Ill. 531); and as to a simple tool the opportunities of the servant for knowing of the defect are at least equal to those of the master. If the tool is procured by the master from another and there is a latent defect, neither one would know of it and the master would not be liable, and if there is a patent defect the servant has as good an opportunity to know of its existence as the master. This rule includes all common tools and appliances, such as hammers, wrenches, axes, hoes, spades and ladders. * * * Neither is the master bound to inspect simple tools furnished to his servant to discover whether defects appear in the course of their use. * * * If any defect should appear in the course of use of such tool, the servant using it would have a better opportunity to discover it than the master. An exception, however, has been recognized in cases where the master has manufactured the tool under such circumstances that there is no equality of knowledge between him and his servant. * * * In such a case the servant may say that he not only did not know but did not have equal means with the master of knowing of the defect.”

We are of the opinion that under the facts of this case the court did not err in instructing the jury, at the close of plaintiff’s evidence, to find the defendant not guilty. Reference may also be made to the following cases: Miller v. Erie R. Co., 21 App. Div. (N. Y.) 45 (a push-pole); Wachsmuth v. Shaw Electric Crane Co., 118 Mich. 275 (a snap-hammer, for use in riveting) ; Cincinnati, H. & D. R. Co. v. Phinney, 38 Ind. App. 546 (a steel punch, which, by long use, had become burred or split); Hefferen v. Northern Pac. R. Co., 45 Minn. 471 (a side-set, the head of which had become worn and battered); Campbell v. Gillespie Co., 69 N. J. Law 279, 282 (a drift-pin with a frayed head).

Counsel for plaintiff further contend that the trial court erred in refusing to allow plaintiff to testify that “up to the time he received the injury he did not know that chips of steel, or pieces of steel of any kind, ever flew from a drift pin, or were likely to fly from a drift pin,” thereby causing injury. Assuming that the plaintiff would have so testified had the court allowed him to, we are of the opinion that under the facts of this case the court • did not err in the rulings complained of. In view of plaintiff’s age and education, and his experience in defendant’s shop, as disclosed from the evidence, we do not think he can be heard to say that he did not know that driving a steel drift pin, frayed over and “peeling down like the skin of a banana,” with a heavy sledge hammer into the holes of the section of the retort in question, was liable to cause a piece of steel to fly off. Gillaspie v. United Iron Works Co., 76 Kan. 70; King v. Morgan, 48 C. C. A. 507,109 Fed. Rep. 446,448. The possibility of pieces of steel flying off under such circumstances was obvious, and knowledge of such conditions “carries knowledge of the danger and the risk is assumed.” Elgin, J. & E. R. Co. v. Myers, 226 Ill. 358, 365; Christiansen v. Graver Tank Works, 223 Ill. 142, 149.

The judgment of the circuit court is affirmed.

Affirmed.