Allen Gravel Co. v. Yarbrough , 133 Miss. 652 ( 1923 )

Ethridge, J.,

delivered the opinion of the court.

The appellee was plaintiff in the court below, and brought suit for a personal injury, alleging that at the time of the receipt of the injury he was employed by the defendant company as track repairer, and as such he was ordered to take a certain wrench and put in some holts in haste that the engine might pass over the frog without delay, and that said company negligently furnished him with a defective wrench with which to perform the work, and this and other wrenches were defective and dangerous because they were of soft material, and worn, and would slip when tightened on a nut and power applied, and that while performing his task in this instance the wrench slipped and threw the plaintiff on the rails because of the said defective condition, etc., broke his leg, and ruptured him.

The appellee’s duty or employment was on the railroad track over which the appellant operated cars of gravel. The track wrench is a tool of some length, with an opening at the end which fits over the nut of the holt for the purpose of tightening or loosening the nut. The opening in the track wrench referred to is practically a parallelogram, with both, angles equal, and surrounded except at the end with iron, which composes the wrench. In use this wrench sometimes wears, and sometimes will spring or yield to the pressure, and become wider at the end than at the upper part of the opening; and the proof shows in this case that the wrench being used at the-time the injury was received had become worn and sprung so that it would slip or was liable to slip when force was applied on the lever of the bar for the purpose of tightening or loosening the nut. According to the proof for the plaintiff, there was a dispute as to the condition of the wrench on the part of the appellant, but, as the jury found for the appellee, the testimony of the appellee as to the condition of the wrench must be accepted as true for the purposes of this appeal. The plaintiff’s proof also showed that the iron of which the wrench was composed was soft, and also showed that both the plaintiff and the foreman of the appellant had knowledge Pf the condition of the wrench.

The appellant presents as his assignment of error that he should have had a peremptory instruction on the theory that the wrench was a “simple tool,” and that there was no negligence on the part of .the master in famishing a “simple tool,” and that consequently there was no breach of duty upon which the negligence could be predicated. Is the track wrench abové described a ‘' simple tool”? In our opinion it is. The wrench above described is as simple as the ordinary wrench used in the common and simple affairs of life, such as sewing machine wrench, wagon or buggy wrenches, or similar wrenches used for loosening or tightening nuts.' In our view the tool is very simple. Its condition may be seen .at a glance. The slightest inspection will disclose its condition. There is no complication whatever about it. The fact that the wrench was used in an employment which was not commoirto all persons makes no difference in this respect. It is true that it is larger than the ordinary tool used around a household, but its principle, of construction is no different, and the only difference is that a great force is to' be used and applied in the case of h trp.ck wrench.

This court, in the case of Wausau Southern Lumber Co. v. Cooley, 130 Miss. 333, 94 So. 228, has held that the rule that a master must exercise reasonable care to furnish his servant with safe tools and appliances is not applicable to “simple tools” where the servant possesses ordinary intelligence and knowledge. In that case the court said:

“In order to predicate liability in the suit against the master for personal injury, there must be some negligence upon the part of the master which causes the injury. The master is not under duty, as regards a mere simple tool, to furnish a servant with a safe tool; the servant’s knowledge and judgment in such case being equal to that of the master. There are some authorities to the contrary, hut we are of opinion that the authorities in accord with our holding are the better and sounder cases.”

Again, in the same.opinion, the court said: “A careful examination of the law upon the subject convinces us that the master is not under any duty to the servant as to furnishing a safe tool in the case of such a simple tool as the one in the ease at bar, and, being under no duty, there can be no breach of duty, and hence no liability resulting therefrom. ’ ’

In that opinion we cited a number of authorities, and quoted from some of them to show that the máster was not under the duty to the servant to furnish safe tools where the tools involved were simple. One of the quotations was as follows:

“The rule of respondeat superior rests upon the assumption that the employer has a better and more comprehensive knowledge than the employee, and therefore ceases to be applicable where the employee’s means of knowledge of the danger to be incurred is equal to that of the employer. Such is the case where the instrument or tool the defect in which is the cause of the injury is of so simple a character that a person accustomed to its use cannot fail to appreciate the risks incident thereto. ’’ Vanderpool v. Partridge, 79 Neb. 165, 112 N. W. 318, 13 L. R. A. (N. S.) 668. See note to L. R. A. report.

The case of Bear Creek Mill Co. v. Fountain, 130 Miss. 436, 94 So. 230, where the court held that the rule that the master must exercise reasonable care in furnishing the servant with safe tools and appliances does not apply to simple tools in common use, and with which the master and servant are equally familiar, and the condition of which may be easily seen. In that case the injury inflicted resulted from the use of a chisel being used to tighten a screw which held the saw on a shafting’, the chisel being struck with a hammer to apply the force necessary for this purpose, and the splinter or fleck from the chisel, being so used struck the plaintiff ill the eye, resulting in a loss of vision.

The effect of these decisions is to hold that the provision of section 504, Hemingway’s Code, does not apply to simple tools being used by an employee but that the rule existing prior to that statute in this state remains in force because there is no negligence on the part of the master to bring the case within the' statute.

The appellant having requested a peremptory instruction, which was refused by the court below, it follows that the judgment must be reversed, and judgment rendered here for the appellant.

Reversed and rendered.