
    New York, Chicago & St. Louis Ry. Co. v. Wolf.
    
      Negligence — Assumption of risk — Railroad track repairman familiar with duties and necessa/ry tools — Repairman used track chisel, instead of clawbar, without consulting foreman — Railroad’s failure to place punch on work car not proximate cause.
    
    1. One employed by railway as track repairman for 14-year period must be held to have been familiar with duties attendant upon service and proper tools to be used.
    2. Track repairman, who met with difficulty in removing spike from tie by use of clawbar, and, instead of consulting foreman, went back to work car for track chisel, assumed risk in working with chisel, and was therefore precluded from recovering for loss of sight resulting from use of chisel to drive spike.
    3. Railroad, in failing to have punch placed on work car for use of track repairman in removing spikes from railroad ties, held, as matter of law, not guilty of any negligence which proximately resulted in injury to repairman from use of track chisel, selected without consulting foreman, in place of clawbar generally used.
    (Decided June 27, 1927.)
    Error: Court of Appeals for Henry county.
    
      Mr. W. A. Eversman and Mr. G. 8. May, for plaintiff in error.
    
      Messrs. Warden & Warden and Mr. James Donovan, Jr., for defendant in error.
   Richards, J.

This is a personal injury action brought to recover damages for the loss of an eye, and the trial resulted in a verdict and judgment for the plaintiff, William J. Wolf, in the amount of $5,000.

It is insisted that the trial court erred in refusing to direct a verdict in favor of the defendant and in refusing to give certain written instructions before argument, and erred in the general charge.

The injury occurred on July 21, 1925, along the track of the railroad company, while the plaintiff was employed as a track repairman, and both parties were engaged in interstate commerce. The evidence discloses that the work car, called a motorcar, used on the tracks of the railroad company, was kept in the toolhouse at Pleasant Bend in Henry county, and that about 7 o’clock on the morning in question the plaintiff and other track repairmen, and Mr. Allison, the foreman, went to this place to get the motorcar and proceed along the track about a mile to the east, where they were to work. Various tools, such as picks, shovels, mauls, clawbars, track wrenches, and a track chisel, used by the men in the performance of their duties, were on the motorcar. The car was operated by the foreman, and proceeded east for a distance of about a mile, carrying the workmen. On arriving at the place indicated by the foreman, the car was stopped, and by his direction the tools were unloaded on the ground, except the track chisel, which was left on the work car. The plaintiff and two other workmen were directed to take the car back westerly some 40 rods to a place where it could be removed from the track, and this was done, and the men then returned to the place where the tools were lying on the ground. The foreman thereupon directed the plaintiff to “take the tools and go down and space ties,” and the plaintiff picked up a claw-bar, maul, pick, and shovel and proceeded along the track a short distance, where he began performing the duties as directed.

The spacing of joint ties about which he was engaged consisted in so adjusting ties which came next to the joints of the rails that a tie would be directly under the joint and thus support the ends of two rails. In order to do this, it was necessary to remove the gravel down to the bottom of the tie, and then the spikes were removed and the tie driven over to its proper place and respiked and tamped. The gravel was removed with the aid of a pick and shovel, and the spikes with the claw-bar. The plaintiff continued in this work for about two and a half hours, during which time he had removed spikes and spaced several ties. He then came to a tie which was of hard wood, oak, as he says. He had been removing the spikes by the use of the clawbar, which he placed under the head of a spike, and then, by throwing his weight on the clawbar, was enabled to remove the spike. He tried this operation several times on the spike in the oak tie and was unable to remove it in that way. While he was thus engaged, another track repairman, named Dickman, came at the direction of the foreman to assist him. Dickman was a young man of 19, who had been employed only a short time as a section man. The two workmen were unable to remove this spike by means of the clawbar, whereupon the plaintiff said he would go to the motorcar, distant some 14 rods, and get a chisel, which he did. Returning with the chisel he handed it to Dickman. The track chisel is fitted with a wooden handle inserted at right angles to the chisel proper. Dickman placed the sharp end of the chisel on the spike, whereupon Wolf, taking the maul, hit the chisel several blows in an attempt to drive the spike down through the slot. As he struck the last blow a piece of metal, either from the spike, the maul, or the chisel, flew off, striking him in one eye and destroying its sight. There is no controversy about these controlling facts.

Plaintiff contends that the company was negligent in furnishing him with improper tools with which to work, but, specifically, his complaint is the failure of the foreman to have a punch, which was at the toolhouse, placed on the work car on the morning of the injury. The company contends that it was not guilty of any negligence, and that the plaintiff assumed the risk attendant upon the performance of the work in which he was engaged. The plaintiff had been employed as a trackman foi fourteen years, during six months of which time he was foreman, and must be held to have been familiar with the duties attendant upon the service in which he was engaged and familiar with the tools proper to be used in the performance of those duties.

The evidence shows that there was a punch in the toolhouse, which was ordinarily used in driving spikes through the slot when they could not be removed with the aid of the clawbar. Wolf knew that the punch was in the toolhouse about a mile distant. At the time he discovered that the spike could not be removed with the aid of the clawbar, the foreman was engaged in work 250 or 300 feet from where Wolf was employed, but Wolf made no inquiry of him as to the course to be pursued, and did not inform him of the inability to remove the spike with the clawbar. Instead of this, he went directly to the motorcar and got the chisel himself, although he knew in advance that that was the only tool remaining on the car. He testifies that he had seen the foreman, on a former occasion, drive a spike through a slot with the use of a chisel, but the record does not disclose the condition of that spike, nor the circumstances under which it was driven through the slot. Evidently the foreman did not intend to have him use the chisel on this occasion, because it was left on the work car when the other tools were removed.

Wolf testifies that he had experience at various times in removing spikes from ties, during the fourteen years of his employment as repairman. He was not able to state how frequently he performed such work, but he seems to have been very familiar -with the work. The case is one in which a man of fourteen years experience is directed to perform a certain service with which he is familiar, and then, meeting difficulty in its performance, voluntarily goes and selects another tool, not furnished him by his foreman, and in the use of that tool so selected suffers injury. It would seem to have been a simple matter for him to have reported to the foreman the difficulty or impossibility of removing the spike from the oak tie, but he chose rather to exercise his own judgment in getting and using the track chisel. It appears to the court that under the plainest principles of law the plaintiff assumed the risk attendant upon removing the spike in the manner in which he undertook to remove it by use of the chisel. Boldt, Admx., v. Penn. Rd. Co., 245 U. S., 441, 38 S. Ct., 139, 62 L. Ed., 385; N. Y. C. & St. L. Rd. Co. v. Biermacher, 110 Ohio St., 173, 143 N. E., 570; Chesapeake & Ohio Ry. Co. v. Mizelle, 136 Va., 237, 118 S. E., 241; Banks v. Schofield’s Sons Co., 126 Ga., 667, 55 S. E., 939.

In failing to have the punch placed on the work car the company was not guilty of any negligence which was the proximate cause of the injury to Wolf. The plaintiff, as an experienced workman, must be held to have assumed the risks attendant upon the use of the chisel procured and used by him.

The trial court committed prejudicial error in refusing to direct a verdict in favor of the defendant company. For the reasons given, the judgment will be reversed, and the court, proceeding to render the judgment which the trial court should have entered, renders final judgment in favor of plaintiff in error.

Judgment reversed and judgment for plaintiff m error.

Williams and Lloyd, JJ., concur.

Judges of the Sixth Appellate District, sitting in place of Judges Crow, Hughes and Justice, of the Third Appellate District.  