73 Mich. 158 | Mich. | 1889
This is an action of trespass on the case, brought in the "Wayne circuit court, to recover damages resulting from the death of Peter Baile, by the negligence of defendant, while he was employed in defendant's tannery in the city of Detroit. The court below on the trial directed a verdict for defendant. Plaintiff brings error.
Baile was about 38 years of age at the time of his death. He left a widow and six children surviving him. He entered defendant's employment on January 3, 1887, and was drowned in one of defendant's tan vats, February 18, following. Before entering the service of defendant, he had worked at the pipe foundry and stove-works in Detroit, and for a time had been a teamster.
The defendant carries on a tannery. On the floor of the building where this business is carried on, called the “ beam-house," there are 22 vats. These vats are nine feet square and six feet deep, and come up with the
The employment of the deceased consisted in taking hides from vats 1 and 2, and putting them into wash-wheel 1, at the south end, which was the only place they could be put in.
The following is a diagram of the floor, showing the vats and wash-wheels:
The employment of plaintiff’s intestate was in taking these hides from the vats and putting them into the wash-wheels. In doing this he took one in each hand* and dragged them diagonally from the edge of the vats* where they laid after being pulled out, to the wash-wheel, walking backwards from the vat to the wash-wheel. In the course of doing this work the passage-way became-very greasy and slippery. Prior to January 3, and a short, time before the deceased entered upon his work there, the box described above, containing hen manure used in tanning, was placed in the position described.
It is claimed by the plaintiff that the deceased was put to work there, and continued such employment, without any instruction or warning from his employers of the danger to be anticipated in the manner of doing the work, or in the place where he was working, and that on that morning, while so drawing hides to the wash-wheel, he fell, and was found drowned in the vat; that it was apparent that he was drawing hides in the usual way when he fell, from the fact that the ends of two
The wheel in this vat had been put in motion by the foreman on the opposite side, and without any warning to the deceased. No one saw the deceased fall, and his death was not discovered until he was subsequently missed from his place there, when the machinery was stopped, and search was made, resulting in the finding of deceased in the vat.
It is claimed that defendant was negligent in two particulars:
1. In allowing the box to be where it was.
2. In starting a wheel adjoining the place where the deceased was working.
A witness named Lockenfritz was called by plaintiff, and gave testimony in reference to the starting of the wheel. The witness stated:
“I saw Peter Baile go to work on the morning of his death. His work was between the two sets of wheels, taking hides out of one vat, and putting them in another. * * * When he started to work in the morning, he was on the west side of the vats. * * * I stood ■on the east side of the wheel, opposite from Baile. The ■bate-wheels were started by Baile the first thing in the morning, and, after running awhile, they were stopped, and then Baile was to take the hides out, and then I had to start the other wheel from the opposite side. The superintendent gave me orders to start the other wheel. It was the rule, and I had to do so; every morning I had to start the wheels, and let them run a quarter of an hour in an hour. When I started up the vat next to the one at which Baile was working he was there then. The wheel in the vat Baile was working at was not going at all.”
This is substantially all the testimony given, bearing upon the question of negligence in starting this wheel.
It appears that at the time Baile entered the employ
The wheel was started in the usual and ordinary way, and there is no testimony which would justify the inference that there was any negligence in so starting it, or that it had anything to do with the accident. It nowhere .appears how Baile came to fall into the vat, or what, if ■anything, occasioned the fall.
The claim made by plaintiff’s counsel, that the defendant was negligent in allowing this manure box to be where it was, has as little force. It is not pretended that there is any evidence whatever that the box occasioned the fall, except the position in which the hides were found. That he may, in backing up, have fallen over this box, is possible, and have thus been precipitated into the vat. There is, however, no proof •of the fact.
Assuming, however, that the defendant was negligent in placing the box there, and that the deceased, in moving backwards, stumbled against it, and fell into the vat, thus losing his life, yet, as a matter of law, the plaintiff, nnder the circumstances here shown, would have no right
It is well settled that a servant is held to assume the ordinary risks of the business upon which he enters, so far as those risks at the time of his entering upon the business are known to him, or should be readily discernible by a person of his age and capacity, in the exercise of ordinary care. 1 Shear. & B. Neg. § 94. The same doctrine is laid down by this Court in Swoboda v. Ward, 40 Mich. 423, and is too well settled to need further discussion.
The court below very properly, under the evidence given, directed a verdict for the defendant. There was no evidence to go the jury upon either of the questions raised.
The judgment of the court below must be affirmed, with costs.