Missouri, K. & T. Ry. Co. of Texas v. Odom (152 S.W. 730, 1912)

RASBURY, J.

Appellee sued appellant in the district court of Grayson county for damages for personal injuries, and secured a verdict and judgment, from which appellant has appealed. Appellee was a ear repairer in the employ of appellant, and at the time he received his injuries he was engaged with other employés in attaching a pair of inside wheels to a car loaded with coal. In order to place the wheels upon the ear, it was alternately raised and lowered with jacks, and while being lowered the jack collapsed, and appellee was seriously and permanently injured. The pleading in the case will sufficiently develop in our consideration of the several assignments of error.

Under its first assignment of error appellant asserts that the trial court should have peremptorily instructed the jury to return a verdict for appellant, for the reason that the jack which injured appellee by collapsing was a simple or common tool, and any defects in the same were obvious, and hence appellant was ndt required in the exercise of ordinary care to inspect same. It will he seen that under this assignment the question arises: Was the jack which was used in raising and lowering the car a simple or common tool? To answer this question it is necessary to review the testimony. Our labors in that respect are somewhat lightened by the admission of appellant that the facts were sufficient to sustain the finding of the jury that the jack was not in good condition, and it therefore becomes purely a question of whether under the evidence the jack was a simple or common tool.

The evidence discloses, and we conclude, that the jack in use at the time of the accident was an upright iron or steel contrivance about 3 feet high, weighing 75 or 100 pounds; that it consists, in part, in its construction of a hollow frame; that into the frame fits a stem or solid piece of steel, on one side of the surface of which are cut notches or slits; that into the front of the jack we presume fits what is called the lever; that this lever or lift also enters the front of the jack, in juxtaposition to the stem, in order that the end of the lever may slide or fit into the notches or slits in the stem and by which the lever elevates the stem, which in turn elevates the car; that there is also a contrivance called a “dog,” which is set, also, in the front of the jack, which by reason of a spring stands pressed against the notches or slits in the stem, and as the stem is raised by the lift or lever the “dog,” by force of the spring pressing it against the stem, slips into the notches or slits and holds the stem into the place where it has been raised when the lever is relaxed. We also conclude from the evidence that for the purpose of assisting in the operation of the jack a string, rope, or cord was attached to the dog or spring, and that when it was necessary to lower the car Odom, who was operating the lift or lever, would press down upon the same so as to raise the car sufficiently to permit Fowler, -who controlled the ■spring with the attached cord, to pull the dog from the slit, whereupon the dog would automatically slip into the next slit or notch, lower the car to that extent, and check the fall of the ear and prevent the-violent and forcible uplift of the lever. It was also shown by the testimony, and we so conclude in deference to the jury findings, that it was the custom and rule of appellant to leave its jacks scattered about its yards for the use of its servants who had the right t,o presume that they were in good condition; that when bad jacks were discovered it was the duty of the servants to report same to the shops for repairs or to mark them bad order. Based upon the foregoing, we are unable to agree that the jack in use by appel-lee was a tool of that simplicity that any defects therein would be obvious and as a result relieve appellant of the use of ordinary care in inspecting same.

That there is no duty resting upon an employer to inspect during their use those common tools and appliances with which every one is conversant is too well settled for argument. Railway Co. v. Larkin, 98 Tex. 225, 82 S. W. 1026, 1 L. R. A. (N. S.) 944; O’Brien v. Railway Co., 36 Tex. Civ. App. 528, 82 S. W. 319; Pope v. Railway Co., 135 S. W. 1066. The true inquiry is, what .is a common -tool, and around such inquiry the difficulty in each case revolves. In the case before us, appellee, it seems to us, had neither the opportunity nor was charged with the duty of detecting the unfitness of the jack being used at the time he was injured. It was the custom of appellant to leave both good and bad jacks lying about its yards, and that the same were considered safe unless same had on them a “bad order” mark. Some of the witnesses testified that there was no rule requiring the employés to examine jacks, and others testified there was. As illustrating the testimony that sustains the finding of the jury, and as showing that any defects in the jacks were not obvious or patent, the witness Ritchie testified that he would always examine the jack to see whether or not it was in good order, and that he was directed by the foreman to make this examination. This is a circumstance which itself shows that neither the foreman nor the employé considered the jack so simple as to obviously disclose any defects; otherwise an examination would not have been necessary. As further indicating that those using the jacks did not consider them simple tools, and supporting appellee’s claim that they were not, this witness further says that, when the employés desired to use a jack in lifting a car, they would place it under the car, “and, ■ if it was not in condition to be used, we would take a piece of chalk and mark a' cross upon it.” He also states, “You can’t tell a defective jack unless you try it on a car,” thus making the use of the jack the test of its condition.

A defect which develops while the tool is being used cannot be said to be an obvious one. Tbe witnesses Miller and Earley testified that it was tbe rule of appellant that employés should inspect tbe jack and that tbe employés worked under said rule, while tbe witness Howard said it never bad been tbe custom for employés to inspect same; but, on the contrary, “whenever em-ployés are using a jack, and find it in bad order, they take it to the shop for repairs,” and that all jacks in tbe yard are supposed to be in good order, and that employés are supposed to pick up tbe first one they come to and use it. The jack in use by appellee and his colaborer at the time he was hurt was wholly dissimilar to any of those implements which our appellate courts have declared to be simple tools, such as a lantern globe, goose neck wrench, or chisel, the very naming of which carries with it the idea of the utmost simplicity. In fact, it occurs to us that the implement we have described is decidedly more complicated and less calculated to import notice of defects than many of the implements declared by the courts not to be simple tools. Railway Co. v. Davis, 35 Tex. Civ. App. 285, 80 S. W. 254; Railway Co. v. Patrick, 50 Tex. Civ. App. 491, 109 S. W. 1099; Freeman v. Starr, 138 S. W. 1152. So far as we have been able to determine from the evidence, the trouble with the jack in this case was a defective spring. Just how the spring worked is not clear from the testimony; but, as we have said, it must have formed a part of the dog or been attached thereto in such manner as to press the dog into the notches on the stem and hold the stem in the place where it had been lifted by the lever. Whether this spring was on the outside of the jack; where it was obvious and could be plainly sden, the testimony fails to show. From what description is contained in the record we assume it was not. From that description the spring must have been hidden within the frame, and, if not hidden, not in a'place where its defects would be obvious upon picking it up for use or could be seen by appellee from the end of the five-foot lever while operating same. The spring must have been in close proximity to the place where the lever enters the frame in order to connect with.the notches in the stem, -and just above the lever connection must have been the dog. And hence it occurs to us that the jack as described in no sense constitutes a common or simple tool, so as to relieve the appellant of the duty of inspection, and hence of the exercise of ordinary care.

Appellant’s second proposition under its first assignment of error asserts that, there being no duty upon appellant to inspect the jack, and appellee having the opportunity to do so and failing to discover the defects, appellant cannot be held liable for ap-pellee’s injuries. The evidence in the ease does not, in our opinion, support the proposition. In the first place, the jack was not, in our opinion, a simple tool; and, in the second place, there was neither duty nor opportunity for appellee to inspect the same. In a general way it may be said that the jacks were scattered about appellant’s yard, and it was the well-established custom of the employes to use any of them which did not have upon it a “bad order” mark. Some of the witnesses testified that it was appellant’s rule for the employés to inspect same before using; others said it was not. Some said a defect in a jack could not be discovered except when in use, and others denied it. Therefore the question presented by this proposition is a question of fact, which has been settled by the verdict of the jury, and as a consequence it presents no error.

The third proposition under the first assignment asserts that appellant having placed , upon appellee the duty of inspection, and the jack being a simple tool, he should not, for both of said reasons, be permitted to recover. Under this proposition reference is made to some evidence adduced by appellant tending to show the existence of certain rules in regard to the duty of employés to inspect the tools in use. The most that can be said, of the evidence bearing upon the duty of appellee to inspect the jack because of certain rules of the company is that there was a conflict in the testimony, and that the jury sustained appellee’s claim that he was not bound to inspect. The evidence, however, is hardly sufficient to raise the question, since the effect of the testimony on this point is to prove certain rules of appellant in reference to the duty of employés not to inspect, but to bring into the shop all bad order tools. Ordinarily, and as a matter of law, the duty of inspection is primarily upon the employer, and if it may be said that this duty can be shifted by rules fixed by the employer, as said by the Supreme Court, “in order to make a rule binding upon the servant, it should be brought to his knowledge.” There was some testimony supporting appellant’s contention about the existence of the rules; but as to the knowledge thereof on the part of appellee it was conflicting, and of but little probative force, and the jury decided the matter against appellant, which disposes of the point, since it is at best a question of fact. Adams v. Railway Co., 101 Tex. 5, 102 S. W. 906.

And it appears that since the rendition of the opinion in the Adams Case, supra, the Legislature has provided a rule that forbids the master from shifting his duty of inspection in any manner, since it is provided by article 6651, R. S. 1911, Acts 1909, that “any contract, rule, regulation or device whatsoever, the purpose or intent of which shall be to enable any common carrier to exempt it-seif from any liability created by the three preceding articles, shall to that extent be void,” etc. The articles referred to are 6648, 6649, and 6650, R. S. 1911, the first of which provides, among other things, that carriers shall be liable in damages for injuries to employés by reason of “any defect or insufficiency due to its negligence in its cars, engines, appliances, machinery, track, roadbed, works, boats, wharves, or other equipment,” etc. By this statute it seems that the carrier is not permitted by contract, rule, regulation, or device whatsoever to shift the duty of inspection to an employé where inspection is required.

The seventh proposition under the first assignment of error asserts that, appellant being engaged in both state and interstate commerce, appellee’s cause of action accrued under the Federal Employer’s Liability Act. We are asked, in effect, to sustain this assignment on the grounds: (a) That appellee admittedly was in the employ of appellant;