Zahnen v. Lane Bottling Works
Zahnen v. Lane Bottling Works
Opinion of the Court
It does not appear from the petition in what business the defendant was engaged. We infer, however, with the help of some evidence, that it was engaged in bottling soft drinks. At the time of his injury the plaintiff was engaged in “pulling a stopper from what is known as a pop bottle.” The bottle broke and cut the hand of the plaintiff and inflicted severe injuries upon him. The negligence charged against the defendant is that it failed to furnish plaintiff “safe and ordinary tools and appliance with which to do his work. ’ ’ The evidence of plaintiff shows that he was furnished with three tools known as “ an extractor, a pair of nippers or pinchers, and a vise.” There was no defect in any of these tools. They were the ordinary tools in use. The plaintiff was instructed as to their appropriate use. The first two being principally used and the vise being used for exceptional purposes “two or three times a week.”
Q. You may now tell what is the ordinary and usual way of removing "that stopper. A. Well, the ordinary and usual way was the way this attorney showed you a while ago; yes, that is the ordinary way— Q. Yes, to use— A. To use sleeve hooks to get the stopper up, and then take the pinchers, that is the ordinary way. Q. What would be the danger’ of using the pinchers? A. Well, don’t hardly know as there would be any real danger, unless the bottle was cracked that they were using. . . . Q. Is there any danger of a bottle breaking by pulling the cork out with the pinchers? A. Well, sir, I don’t know as there is or not. Bottles break in so many ways. I couldn’t hardly describe it. I don’tdmow of any of the boys ever getting cut from pulling the stoppers out with the pinchers. Of course they don’t do that of course while — because the other was in place. Q. I will ask you to examine these tools (indicating), and state whether or not those are the ordinary tools? A. Those are the ordinary tools that they had. Q. Used in establishments of that kind? A. Yes, sir. Q. And is it not a fact that the device you had there of which you have just spoken is a little device that you manufactured yourself for your own convenience? A. Yes, sir, I made it myself. Q. And, as a matter of fact, it is not in use anywhere else except with the Chestermans, is it? A. Not that I know of.
The plaintiff testified as follows:
Q. Now, I will ask you to look at this instrument and tell the jury what that is. A. Yes, sir. A stopper extractor. Q. Was that furnished you 'by the Lane Bottling Works? A. Yes, sir. Q. And what did you use that for? A. To pull the stoppers after they fell in the bottle. Q. I will ask you what this is (indicating). A. That is a pair of nippers. Q. And what do you use them for ? A. Those are used to pull out those stoppers. Q. After you got them so that you could get hold of them with the nippers — with this thing (indicating) ? A. No, sir. The only time we used this thing was when the stopper was half in and half out, and this here (indicating) we used when they fell in. Q. But you would pull them up with this until you could get hold of them with the nippers,
The record of the evidence is not very satisfactory. The tools were exhibited in evidence and the method of their use was indicated. We are without the aid of the exhibits or the methods described. It does appear that, for the plaintiff’s particular purpose at the time of his injury, the pinchers were the proper tool. They were mislaid, and he therefore used the vise and a soft board, which resulted in a broken bottle. Some presumption must be indulged in favor of the ruling of the trial court, from the fact that the tools were before him, and the method of their use was described in his presence. The plaintiff also introduced one witness, who testified that he had constructed a device some years ago in the form of a box, which rendered the work entirely safe. This box was used for some years by Chesterman and Lane. It had also passed out of use some years before the accident in question. Another witness testified that he had seen at one time a device in Washington, D. C., which was a safety device. Tie had however never seen such device in use at any other place or time. The testimony on behalf of plaintiff seems to show conclusively that the tools furnished plaintiff were the ordinary tools for that kind of work. The evidence discloses no suggestion of defect' in any of them. The only
Case-law data current through December 31, 2025. Source: CourtListener bulk data.