I cannot agree with the majority opinion in this case.
There are two principal contentions made by the defendant: (1) That the evidence as a whole is not sufficient to show negligence on the part of the master; (2) that the simple tool doctrine applies; that under this doctrine there was no duty on the part of the master to inspect the tool in question, and he, therefore, would not be liable for an injury resulting from a defect therein.
Where, on a state of facts, reasonable minds might differ as to whether or not there was negligence from which injury and damages flowed directly and proximately, the determination of the question is one for the jury, and its determination thereof, if reasonably supported by any competent evidence, is binding on appeal. Reasonable inferences that may be drawn from the testimony are within the purview of this general principle. From my statement of the state of proof in this case hereinafter set forth, it is obvious that it might be reasonably determined that the injury suffered in this case and the damages found by the jury to have resulted therefrom were the direct and proximate result of the defective condition of the tool in question. Observe in this connection that the tool complained of was simple, though the defect is alleged to have been latent in character; that the sledge used was iron and weighed eight pounds; that it struck the deceased a glancing blow; that there was a shortage of tools; that the master's attention was called to the tool under circumstances from which it might be reasonably inferred that the master's attention was directly called to the particular defect in question. The foreman testified that he checked the tools from time to time and had examined them more than once. One witness testified that the foreman told the employee who called his attention to the tool used in this instance to go ahead and use it. There is positive evidence that the tool broke and the sledge thereof hit the deceased on the head. Medical testimony was introduced showing the condition of the decedent for a long time prior to his death and attributes such condition and his actual death to the blow on his head. To take such state of facts away from the jury would be to substitute the opinion of the judge for that of a jury.
I cannot say that reasonable minds might not differ in the determination of whether the injury complained of was the direct and proximate result of the negligence of the master under the state of facts proved by the plaintiff; this state of facts was entirely sufficient for the submission of this case to the jury.
I now come to a consideration of the applicability and effect of the simple tool doctrine. The tool used in this instance was a simple tool; it is not necessary herein, as I view it, to determine whether or not a latent defect in a simple tool takes it out of such category or whether or not the general rule applicable to simple tools applies to latent defects.
Masters are not required to inspect simple tools for the reasons that defects in simple tools are ordinarily occasioned by usual wear and tear and therefore obvious, and the further fact that employees have as much knowledge about simple tools as the master and would have a better opportunity of observing defects therein. There being no duty ordinarily on the part of the master to inspect simple tools, negligence cannot be predicated upon the existence of a defect therein unknown to the master. *Page 693 St. Louis S. F. R. Co. v. Mayne, 36 Okla. 48, 127 P. 474, 42 L. R. A. (N. S.) 645; Chicago, R.I. P. R. Co. v. Lillard,42 Okla. 109, 141 P. 8; Woodruff v. Phillips, 138 Okla. 77,280 P. 449; Barnsdall Oil Co. v. Ohler, 48 Okla. 651, 150 P. 98, and the other cases to the same effect. However, negligence herein is not predicated upon the failure of the master to inspect the tool in question, nor is it charged that the master should be held to account for knowledge of its defects that would have been disclosed by proper inspection. Negligence is herein predicated upon the proposition that the master did inspect the tool used; and that the circumstances reasonably indicate that the defect was called to the master's attention and he had actual knowledge of the defect, and in this connection the further contention is made, and negligence predicated upon the alleged fact, that the master, when he undertook to and did inspect the tool in question, had the duty to make a reasonable inspection thereof and would be charged with knowledge of such defects therein as would ordinarily be gained from an adequate inspection. Many witnesses testified in the case and the evidence is voluminous. In behalf of the plaintiff it may fairly be said that the evidence shows that the sledge hammer used was old and defective, in that there was dry rot in the handle around the eye of the sledge; that while being used by another employee it broke, striking decedent a glancing blow on the head; that before the blow was struck that injured the decedent, an employee who was "afraid" of this particular sledge handed it to the foreman; some conversation took place between the employee and the foreman; the sledge was handed back by the foreman to the employee with the instruction "Oh, go ahead — it will be all right"; that the injury to the plaintiff eventually produced his death together with a lot of pain and suffering. There is no evidence that the decedent was or was not in hearing distance of the conversation which took place between the other employee and the foreman concerning said sledge hammer. The evidence on the part of the defendant is in direct conflict with much of the evidence on the part of the plaintiff in the foregoing respects.
Plaintiff proceeds on the theory that this state of facts, though circumstantial in some respects, shows that the foreman had actual knowledge of the defect and directed the co-employee of the decedent to use it notwithstanding the defect, and that the decedent had no knowledge of the conversation between the other employee and the foreman or knowledge of the inspection by the foreman and did not himself have actual knowledge of the defect. There is no contention that circumstantial evidence is not competent to establish a necessary fact in a civil action. The jury in making its determination of the questions in issue considered all of the direct evidence, and no doubt indulged all of the reasonable inferences to be drawn from all the facts and circumstances proven.
While an employer is not required to make ample periodic inspection of simple tools used in his business in order to discover obvious defects therein, he is guilty of negligence if he does inspect a tool and by reason of such inspection knows a defect exists and directs the continued use thereof.
In Ft. Smith W. R. Co. v. Holcombe, 59 Okla. 54,158 P. 633, we said:
"There is, however, this exception to the rule: That the master is not liable for injuries from the use of simple tools selected with ordinary care. When a simple tool becomes defective, and the master has actual notice of such defect, and the servant injured has no knowledge of the defect, the master is liable for exposing the servant to a peril unknown to him and must respond in damages."
See, also, in this connection St. Louis S. F. Ry. Co. v. Sears, 173 Okla. 483, 49 P.2d 489.
The jury in its determination in the instant case, based upon direct and circumstantial evidence introduced, reasonably found all the facts disclosed in *Page 694 the case supra. There is, therefore, no essential difference in the case at bar and the case supra. The contention of the defendant that there is a material distinction is without merit. The defendant contends in this connection that under the rule of the foregoing case it would be necessary in the instant case for the jury to find that the foreman actually knew of the defect, but notwithstanding this fact instructed the employee to continue its use. Such findings are necessarily inherent in the verdict of the jury in the instant case and its conclusion thereon is binding on us, though the evidence on practically all material issues in this case is in sharp conflict.