Tarin v. Atchison, Topeka & Santa Fe Railway Co.

The opinion of the court was delivered by

West, J.:

The plaintiff was a track layer and engaged in the work of fastening the rails together. Another workman was driving spikes. The plaintiff testified: “When he hit the blow with his hammer on the spike, the spike flew off and hit me. It hit me on the forehead on the left side.” The allegation and proof were to the effect that the hammer was defective and the jury so found. It was alleged that the defendant and the spike driver “knew, or would, by the exercise of ordinary care, have known of the imperfect and dangerous character of said hammer…