
    Morris v. Lipkin, Appellant.
    Argued December 6, 1934.
    Before Frazer, C. J., Simpson, Kephart, Sohaeeer, Maxey, Drew and Linn, JJ.
    
      January 7, 1935:
    
      Thomas P. Talbot, with bim Harry S. Ambler, Jr., for appellant.
    
      Milford J. Meyer, with bim Robert M. Bernstein, for appellee.
   Opinion by

Me. Justice Kephart,

Plaintiff was employed by bis father as manager of an automobile service station. On July 3, 1931, one Mumford, operating a truck belonging to defendant, stopped at tbe service station for tbe purpose of inflating a tire. Mumford was a regular customer of tbe station and, with plaintiff’s permission, began to put air in tbe tire. In tbe course of tbis operation, however, tbe metal rim of tbe tire became loose, whereupon Mumford walked into tbe store run in connection with tbe service station and picked up a hammer that was on tbe counter, telling plaintiff be wished to use it to hammer a rim in place. Plaintiff told bim not to use that hammer as it chipped around the edges but to find another one. Mumford placed it back on tbe counter and started to look for another hammer. Meanwhile plaintiff proceeded with bis work about tbe station, and, presently, was required to walk over to another car. In so doing be passed within a few feet of where Mumford was working on tbe rim of bis tire. Tbe latter was using tbe hammer which he had been warned against using, and as he struck a sharp blow on the metal rim a piece of steel chipped off from the head of the hammer and struck plaintiff in the left eye, resulting in the total destruction of its sight. In this action against Mumford’s employer to recover damages for the loss of the eye,- a judgment was entered for plaintiff, and this appeal by defendant followed.

Appellant contends that there was no breach of a legal duty in using the hammer in the condition in which it was found, and that, if there was no such breach, it was the duty of the court below to so declare; that a jury should not be permitted to find an act negligent which is less than the failure to discharge a legal duty: Bardis v. Phila. & Reading Ry., 267 Pa. 352; Wiser v. Parkway Baking Co., 289 Pa. 565. Of course, proof of the mere happening of an accident will not raise a presumption of negligence: Welsh v. Jump House Wrecking Co., 306 Pa. 228.

Appellant has submitted a number of authorities which deal with the question of injuries which are the result of fortuitous circumstances such as in the light of common experience would not have been foreseen by a reasonable man using ordinary care. The cases cited refer to unusual, unforeseeable happenings, and in this they are clearly distinguished from the ease at bar. Pacts must be judged in the light of all the surrounding circumstances, and here the distinguishing circumstance is that appellant’s employee was warned of the dangerous nature of the hammer before he used it. Appellant especially relies upon White v. Roydhouse, 211 Pa. 13, where the plaintiff was hit in the eye by a fragment of lime which came from the mortar bed where defendant’s employee was mixing mortar, when the latter, in order to pulverize a lárge lump of lime, struck it with a hoe, causing the piece which injured plaintiff to fly out from the lump; we held that there was nothing to show negligence on the part of defendant’s workman. Had the employee in that case been warned, as Mumford was, that wbat be was about to do would result in an injury or was likely to result in an injury, a very different question would bave been presented. Here tbe defendant’s employee bad not only an admonition that tbe instrument used was dangerous, but, coupled with that, bis observation of tbe instrument itself, wbicb was chipped around tbe edges, should bave disclosed to him tbe truth of what plaintiff bad told him as to its dangerous character. While, standing alone, bis mere observation of tbe hammer might not bave been sufficient to establish a legal duty upon Mumford not to use that instrument, that observation, corroborating tbe warning be bad just received, made it incumbent on Mumford to realize that disregard of wbat be was told involved a risk of causing an invasion of another’s interest. He possessed such knowledge of pertinent matters as to tbe condition of tbe tool, that as a reasonable man, acting on that knowledge, be should bave inferred that bis act created an appreciable chance of causing an injury: Restatement of tbe Law of Torts, section 289. A case bearing on a closely similar situation is Cleveland, C., C. & St. L. Ry. Co. v. Weil, 68 Fed. 2d, 48. Under all tbe circumstances, tbe court below did not commit error in refusing to enter judgment n. o. v.

Judgment is affirmed.  