St. Louis Southwestern Ry. Co. v. Weatherly

The writer does not agree that it was error on the facts of the case to instruct the jury it was appellant's duty "to exercise ordinary care to furnish, and have reasonably accessible, tools and appliances reasonably safe and suitable for use" in the work appellee was engaged in on the occasion of the accident, and that "failure to use such care would be negligence." The evidence was that, if appellant had goggles appellee could have obtained and used on that occasion, they were in a tool-house nearly a quarter of a mile from the building in which he was at work. 3 Labatt's Master and Servant, § 916, p. 2435. Nor does the writer agree that the evidence did not warrant the finding that appellant failed to "furnish" appellee goggles, and the findings that such failure was negligence and that such negligence was a proximate cause of the injury to appellee. He does not think the testimony of appellee that he did not know or think about the danger he incurred in doing the work as he did necessarily meant he would not have used goggles in doing it had they been furnished him. 39 C.J. 326. The writer thinks the answer of the jury to issue 4, that appellant's foreman did not require appellee to use a hammer and chisel in tightening the nut, was not inconsistent with their answer to issue 8; that said foreman did require appellee to do the work without taking down the pipe preventing the use of a Stillson *Page 561 wrench; and is inclined to think the answers of the jury to issues 9, 10, and 11 were not without evidence to support them. And he thinks that, while issue 8 may have been subject to the objection that it was on the weight of the evidence, in that it assumed that the pipe prevented the use of a Stillson wrench, it was not subject to the objection that it was multifarious. It seems to him a sufficient reason for reversing the judgment has not been shown, and that it should be affirmed.