The opinion of the court was delivered by: WYCHE
This is an action by the plaintiff under the Federal Employers' Liability Act, 45 U.S.C.A. § 51 et seq., to recover damages for the loss of the industrial use of his left eye, sustained, while he was in the defendant's employ as a stower of freight, when he was struck in the eye by a nail, which he was attempting to drive in the door jamb of a freight car of the defendant with a ball-peen or machinist hammer.
The complaint alleges, among other things, that the defendant failed to provide the plaintiff adequate, proper, efficient and safe tools, equipment and appliances with which to do the work assigned to him.
The case was tried before me without a jury. Rule 52(a), Rules of Civil Procedure, 28 U.S.C.A.following section 723c.
It is admitted that the defendant was at the time of plaintiff's injury engaged in interstate commerce.
The facts are as follows: On April 26, 1944, the plaintiff, forty-two years of age, was employed by the defendant as a trucker, and later as a stower of merchandise in freight cars at the Federal Street Station of the defendant in Philadelphia. On the night of April 26, 1944, about one-thirty o'clock a.m., plaintiff's foreman gave him a ball-peen or machinist hammer and an eight-penny nail and directed him to drive the nail into the door jamb of a certain freight car, on a track next to the platform, for the purpose of suspending therefrom an extension electric light cord to run through freight cars which had been placed door to door on parallel tracks, in order to furnish sufficient light for the stowers to load freight in the cars. The door jamb of the freight car was made of hard oak wood. The nail was supposed to be driven into the door jamb of the freight car as high as the plaintiff could reach so that the truckers would not knock the electric light extension cord down while loading the freight. While plaintiff's usual duties at the time were that of a stower, he had been called upon three or four times before, on account of the scarcity of labor, to drive nails into freight car door jambs for the same purpose.
The plaintiff hit the nail once with the hammer furnished him and started it into the wood, but on his second blow the nail flew back and struck the plaintiff in the eye, inflicting injuries which destroyed the industrial use of his left eye.
There were lights on the station platform about fifteen feet apart which shed enough indirect light in the car for the plaintiff to see the electric light extension cord on the floor and the door jamb of the freight car in which he was driving the nail when injured.
Oak wood is very hard and very resistant to nail penetration, and if one drives a nail into hard oak wood with a ball-peen or machinist hammer there is a danger of resistance by the oak, and also from the hammer as result of which the nail sought to be driven into the oak wood will tend to bend or fly out. If a ball-peen hammer is used to drive an eight-penny nail into an oak door jamb 'you would have resistance at both ends because both are hard. Oak wood is hard and a ball-peen hammer is hard steel.'
Carpenter hammers are known as nail or claw hammers, and are made of soft tempered steel to cause the hammer to lay on a nail when struck so as to drive the nail into the wood. They are used by carpenters to drive nails into wood, and to extract nails with the claw-end. No carpenter hammers were provided by the defendant for plaintiff's use, nor were there any available for his use in driving the nail into the door jamb of the freight car.
The plaintiff in using the ball-peen or machinist hammer, supplied him by his foreman, was following the method directed by his foreman when injured The proper hammer for the job here involved was a carpenter's nail or claw hammer. The ball-peen hammer provided plaintiff is not a proper tool for driving eight penny nails into oak door jambs because the steel is too hard tempered, and the hammer is too heavy and too large.
The Federal Emplyers' Liability Act, 45 U.S.C.A. § 51, provides: 'Every common carrier by railroads while engaging in commerce between any of the several States * * * shall be liable in damages to any person suffering injury while he is employed by such carrier in such commerce * * * for such injury * * * resulting in whole or in part from the negligence of any of the officers, agents, or employees of such carrier, or 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.'
The 1939 Amendment, 45 U.S.C.A. § 54, provides: ' * * * any action brought against any common carrier * * * to recover damages for injuries to, * * * any of its employees, such employee shall not be held to have assumed the risks of his employment in any case where such injury * * * resulted in whole or in part from the negligence of any of the officers, agents, or employees of such carrier.'
45 U.S.C.A. § 53, provides: 'In all actions * * * brought against any such common carrier * * * to recover damages for personal injuries to an employee, * * * the fact that the employee may have been guilty of contributory negligence shall not bar a recovery, but the damages shall be diminished by the jury in ...