#### Cleaver v. Bert Johnson Orchards, Inc.

Opinion delivered October 31, 1927.

*229 Frank Pace, Tom Kidd and Tom W. Campbell, for appellant.

J. C. Pinnix, T. I). Wynne and Chas. A. Miller, for appellee.

*230Kirby,' J.

The only question for determination is whether the court erred in taking the case from the jury and directing the verdict for appellee.

■ The settled rule for its determination is:

“ In determining on appeal the correctness of the trial court’s action in directing a verdict, the rule is to take that view of the evidence that is most favorable to the party against whom the verdict is directed, and, where there is any evidence tending to establish an issue in favor of the party against whom the verdict is directed, it is error to take the case from the jury.” Cruce v. Mo. Pac. Rd. Co., 167 Ark. 88, 266 S. W. 981; Crawford v. Sawyer & Austin Lbr. Co., 91 Ark. 337, 121 S. W. 286; Williams v. St. L. & S. F. R. R. Co., 103 Ark. 401, 147 S. W. 93; Farmers’ Bank v. Johnson, 105 Ark. 136, 150 S. W. 401; Jones v. Lewis, 89 Ark. 368, 117 S. W. 561.

The evidence does not certainly show that appellant’s injury was caused by a piece of steel broken from the hoe which he was using in cutting weeds, upon striking a rock, although the statement that it was withdrawn from his eye by a magnet indicates that it was a piece of metal. No witness examined the hoe after the injury occurred, unless it was one of two hoes inspected by appellee’s foreman, picked up out at the road, in the orchard near where appellant and the Stewart boy were working, and where appellant said he had laid his hoe down. Neither of these hoes was defective or gapped, however.

It is also true that the cane or grubbing hoe was a simple tool, not complex of construction nor difficult of operation, and that appellant was a farmer accustomed for years to the use of such tools. The court has held that, in the selection and use of simple tools, whose defects are patent and obvious and as discoverable to the servant as to the master, the servant assumes the risk of the ordinary use thereof. Fordyce Lbr. Co. v. Lynn, 108 Ark. 377, 158 S. W. 501, 47 L. R. A. (N. S.) 270; Arnold v. Doniphan Lbr. Co., 130 Ark. 486, 198 S. W. 117.

The burden of proof was upon the injured servant to show negligence on the part of the master in the failure to *231perform some duty owed to him, as such servant, which proximately caused or resulted in his injury. Here the servant, according to his own statement, made selection of the tool or implement which he was to use, a grubbing hoe, for cutting weeds in rocky soil, with the ordinary use of which the servant had been familiar always, and there is no testimony tending to show that the tool selected was defective, nor certainly that the injury resulted from a piece of steel slivering and breaking off from the edge of the hoe, upon its being struck against a rock, in its ordinary use. No witnesses stated that the hoe was gapped or the blade slivered, and the foreman testified that neither of the two hoes left in the road, near where appellant passed and left his hoe, was gapped or showed that a sliver had broken off from the edge of the blade.

It may be that neither of these hoes examined by him was the one which appellant was using when he was injured. The master, in any event, is not an insurer of his servant’s safety, and was only bound to the use of ordinary care proportionate to the danger to he incurred in furnishing proper tools to the servant for the performance of his duty, and his negligence is charged to consist in furnishing a defective hoe, too highly tempered in the sharpening, with which to do the work. Although the simple tool doctrine has never been established in this jurisdiction, there was said about it, in Arnold v. Doniphan Lbr. Co., supra: “The master does not owe the servant the duty of inspecting tools given to the latter with which to work, where the tool furnished is one which requires no special skill or training for its safe use, and when the defect in the tool, if any, is as obvious to the servant as it is to the master, or when the defect arises from the use of the tool, and the servant would naturally be the first person to discover the existence of the defect.”

The undisputed testimony shows that the appellee furnished only skilled and experienced blacksmiths for the sharpening of these hoes, that were dulled twice a day *232in their ordinary use in the rocky ground of the orchard. Some of the smiths have been at work for as much as 30 years, and all of them are skilled in sharpening and tempering such tools. That the one having the least experience in such work, Bay, a blacksmith for 7 years, the helper of Huddleston, the blacksmith in charge of the shop at division 1, who had been working for appellee for 13 years, knew how to sharpen and temper hoes properly. That he always made an honest effort to see that the hoes were properly tempered, and that, if he discovered one too highly tempered, he retempered it. Neither does the testimony show that Bay had .sharpened the hoe that was being used by the appellant at the time the injury occurred, nor was there any testimony tending to show that any of the hoes sharpened in the blacksmith shop of division 1, nor any of the other shops, had ever before been complained of as having been improperly sharpened and made defective from being too highly tempered.

Assuming that the injury occurred as stated by appellant, the testimony is not legally sufficient to show negligence on the part of appellee in the failure to exercise ordinary care to furnish reasonably safe tools to its employee for the performance of his duty, and, it being necessary for him to show such negligence in order to recover, the court did not err in directing the verdict against him.

The judgment is accordingly affirmed.