St. Louis S. F. Ry. Co. v. Hartless , 115 Okla. 38 ( 1925 )

On the merits of this case defendant urges but one proposition in its brief, viz., that no actionable negligence was shown. This contention was raised in the trial court at every stage of the proceedings. First, by demurrer to the petition; second, by objection to the introduction of evidence; third, by demurrer to the evidence; fourth, by motion for a directed verdict; fifth, by motion for a new trial specifically assigning as error the action of the trial court in each of the particulars above enumerated.

Upon the trial plaintiff's testimony developed facts in substantial accord with the allegations of his petition. It was further shown that plaintiff had been engaged in similar railroad work since 1904, and was an experienced man in the handling and use of wrenches. After the injury he signed a written statement in which he stated that the wrench he was using at the time of the injury was his personal property, and that there was nothing wrong with the wrench, only it was a little too short. On the witness stand plaintiff repudiated this portion of his signed statement, but confirmed it in all other respects. The wrench was not produced on the trial.

From the pleadings and facts heretofore abstracted, it is clearly apparent that the question raised and presented in the trial court by the various demurrers and motions was one of law as to the existence of primary negligence. It is elementary that in an action by an employe against his employer, the fact of accident and resulting injury raises no presumption of primary negligence on the part of the employer, but such negligence is an affirmative fact necessary to be shown by the allegations of the petition and to be established by the evidence. Unless this essential prerequisite to the right of recovery is made to appear, no case is made for submission to a jury.

There is neither allegation nor proof in the instant case that the wrench furnished to plaintiff was defective in any respect. The jaws fitted the nuts which they were intended to turn, and they were not worn so as to cause the wrench to slip when force was exerted on it. The fact that it did fit the nut and did not slip enabled the plaintiff to exert the force against it which he claims resulted in the injury to his hand. But it is contended that the wrench was too short to afford sufficient leverage in loosening rusted nuts. It is shown to have been the kind of wrench made and furnished for such use, and that the space in which it was designed to be used was limited and confined. It was shown to be customary in such work, by reason of the short wrenches and the limited space in which to use them, to employ a hammer in loosening rusted nuts. A hammer was included in plaintiff's kit of tools. As was said by Justice Burford in the case of Neeley v. Southwestern Cotton Seed Oil Co., 13 Okla. 356 (sp. cit. 374), 75 P. 537:

"The company was not required to furnish the best or latest patterns, or most modern designs of * * * appliances, but was bound to provide such as were reasonably safe and free from dangerous defects, and was required to exercise reasonable care and caution in the selection and maintenance of that character of appliances that it did provide and use."

Or, as was said in Young v. Burlington Wire Mattress Co. (Iowa) 44 N.W. 693:

"But defendant is not required to use appliances so constructed that no injury can be inflicted by them under any circumstances. They must provide for their employes such appliances, so constructed, that they may be used, in the exercise of due care, with reasonable safety."

It is in evidence in the instant case that there were longer wrenches in defendant's shops than the one used by plaintiff, and that these longer wrenches would fit the nuts which plaintiff was loosening. It is not shown that he requested or was refused their use. There is also evidence of declarations by plaintiff that the wrench he was using when injured was his personal property. Plaintiff had used this particular wrench for approximately two months, and had been engaged in this character of work since 1904. Prior to his injury he had requested his foreman to order a different wrench for him, which was done, but the foreman later advised him that the kind of wrench he wanted could not be procured from the company's supply depot.

It is contended by plaintiff in support of the judgment that, since the questions of assumption of risk and of contributory negligence are by the Constitution made jury questions in all cases where these defenses are interposed, it must follow that a judgment based on a verdict in this character of action must be sustained. A complete answer to this contention was made by Judge Ames in the case of Phoenix Printing Co. v Durham,32 Okla. 575 (sp. cit. 579), 122 P. 708, in this language:

"Under section 6 of article 23 of the Constitution, the defense of contributory negligence and of assumption of risk must be submitted to the jury. Whether the court should sustain a motion for new trial, where the jury has manifestly found against the law and the evidence on these issues, is a question which we need not now determine.

"The law, however, does not require the primary question of the defendant's negligence to be submitted to the jury unless there is evidence reasonably tending to support the plaintiff's burden of proof on this subject. If the evidence reasonably tends to show that the defendant is negligent, then these defenses must be submitted to the jury. But until the evidence reasonably tends to show negligence on the part of the defendant, there is no issue which should go to a jury. Solts v. Southwestern Cotton Oil Co., 28 Okla. 706, 115 P. 776."

It is clearly evident, from an examination of the evidence preserved in the record, that the wrench which defendant furnished to plaintiff, if in fact defendant furnished it and it was not plaintiff's personal property, was not defective; that its jaws fitted the nuts which it was designed to turn, and that it was not worn or broken so as to cause it to slip when force was exerted thereon. This being true, no primary negligence was shown. The injury complained of has relation to the manner of its use. An employer is not an insurer of the safety of his employes in their use of suitable and nondefective appliances.

It follows from what has been said, that the trial court erred in overruling the demurrer of defendant to the evidence of plaintiff, and in denying defendant's motion for a directed verdict. The judgment of the trial court is therefore vacated, and the cause remanded with directions to the trial court to enter an order sustaining the demurrer of defendant to plaintiff's evidence and dismissing the action.

By the Court: It is so ordered.