56 Mich. 261 | Mich. | 1885
The defendant is a Michigan corporation, engaged in the business of elevating grain at the city of Detroit. Its works are operated by steam power. Its boiler-room is ventilated by a sheet-iron pipe about three feet in diameter, placed over the boilers and projecting above the roof. At the time of the injury complained of, the ventilator was constructed with a damper made of a disk of sheet-iron, placed about, twenty feet from-the lower end. This damper was held in place by its own gravity, having arbors resting upon iron jaws riveted to the inside' of the ventilating tube. There was no device to prevent the damper from being lifted from its support. A piece of iron was fastened to one side of the damper transversely to its hearings, to serve as a weight and keep the ventilating flue open at all times. No appliance was attached to the damper whereby to regulate the discharge of air passing through the ventilator, or to close the same. The weight
On the 23d of January, 1883, the plaintiff was still in the employ of defendant, and during most of the forenoon was working in the boiler-room, taking down some steam-pipes, that ran from the fire-room to the office, which had become frozen, and putting them on top of the boiler to thaw out. Mr. Savage called him from this work to unload a car of barley7, after which he told him to go to dinner. This was at half past eleven o’clock in the forenoon. Plaintiff ate his lunch in the forenoon, and after eating he was directed by Daugherty to close the ventilator, and plaintiff told him he would not do it without orders from Mr. Savage. We here quote the testimony of the plaintiff, given on the trial, as to what then occurred: “ Then he said, £ You know Mr. Savage told you when I would want a man to call upon you, and you should do it. You better do it.’ Then I went to do it. I
The plaintiff also testified that when the damper was open there was sufficient light inside the shaft to see these “ catches ” on the sides, but he thought the rod ran through the wall of the ventilator; that when he shoved the damper up it was so dark that he could not see the “ hooks” at all, and when he poked it, it fell out of the “ hooks ” and fell upon his knuckles. It appears that the injury received was such as to sever the tendons of the index and middle fingers of the right hand, and was of a permanent character, causing a partial loss of the use of those fingers. The defendant offered no testimony, and after the close of the plaintiff’s testimony, requested, the court to instruct the jury as follows:
1. That under the pleadings and evidence in this case the plaintiff is not entitled to recover, and your verdict must be for the defendant.
2. The plaintiff has- not alleged in his declaration in what way this ventilator, or the fan therein, was defectively constructed or maintained, and your verdict must, therefore, be for the defendant.
3. There has been no evidence introduced in this case tending to show when or by whom this ventilator or fan was constructed, or in what respect, if any, it was defectively constructed, or the cause of the fall of the fan at the time the plaintiff was injured, and, in the absence of such evidence, plaintiff has not made a case entitling him to recover.
4. It appears from the evidence in this case, and is not disputed, that when the plaintiff went into the fire-room on the day of the injury, and while he remained there, he was not subject to the orders of Daugherty ; he, the plaintiff, had until one o’clock of that day to go where he pleased, and if, while the plaintiff was in the boiler-room, he was requested by Daugherty to close the ventilator, he was under no obligation, under his employment by the defendant, to obey such*265 request, and if he attempted to obey such request and was in jured while so doing, the defendant cannot be held responsible therefor.
5. There is no competent testimony in this case showing the injury received by the plaintiff or the extent thereof. There is evidence tending to show the present condition of the plaintiff’s hand, but whether the same was caused by the hurt received by the fan, or by the careless treatment thereof •afterwards, does not appear; and as the evidence introduced does not tend to show that a competent physician or surgeon was employed to dress the hand, but.only a medical student, there can be no presumption that it was properly treated and that the present condition of the hand results solely from the injury received; and, such being the case, you cannot, from the present appearance and condition of the plaintiff’s hand, fix the damages he should receive, if any, in this case.
6. The evidence in this case shows the plaintiff to have been guilty of contributory negligence, and he cannot, therefore, recover.
7. There is no evidence tending to. show that Daugherty had any authority over the plaintiff, or to direct the plaintiff to close the ventilator, and there can, therefore, be no recovery.
8. The declaration in this case alleges that the plaintiff was directed to open the ventilator, while the evidence shows he was directed to close it. This is a variance, and the plaintiff ■cannot recover.
The said court declined to and did not give the foregoing requests, or any or either of them.
The declaration contained three
The first count alleged that the defendant, for a period of two months prior to January 23, 1883, had kept and maintained the building known as the “ Union Depot Elevator that the plaintiff was, at the time of the injury, and for two months prior thereto, in the regular employ of defendant to unload grain from cars in said elevator, and as such employee was engaged in the regular line of his duty ; that the defendant, not regarding its duty towards plaintiff, constructed and maintained a certain ventilator, located in the eastern part of the elevator, and leading out of the fire-room, in the following negligent manner, to wit: “The fan-damper, or sheet-iron by which the supply of air coming through said ventila
The second refers to the ownership and operation of the elevator, and the negligent manner in which the ventilator was constructed-and maintained; to the allegations of the first count; and then alleges that the defendant, acting-through its properly authorized agent, while the plaintiff was in its employ for the purpose of performing the work above described, negligently'ordered the plaintiff to close the ventilator ; that the work of closing the ventilator was beyond and outside of the scope of his employment, and was work of which he knew nothing- — neither the duties nor dangers; and that, acting in accordance with said order, and acting with due care, he attempted to close the ventilator, and in consequence of the negligent construction and maintenance of said ventilator, and the negligent order above described, was injured.
The third count is more general, and alleges that defendant constructed and maintained on said elevator a certain ventilator, constructed and maintained with a fan or damper, made and used for the purpose of regulating the supply of air passing through the ventilator, and which was fastened in the pipe or cylinder forming a part of said ventilator. The negligence of defendant is then alleged to consist of ordering the plaintiff to do work outside of the scope of his employment, to wit, the work averred in the last count, and under the same circumstances averred therein.
Tire defendant’s counsel contends that the plaintiff has not in his declaration set forth, pointed out, or suggested in what way the fan or damper was insufficiently or improperly fastened. He has not alleged or pointed out any particular act of negligence, or what in this case constituted the act of
, The eighth request is not borne out by the record before us. It appears to have been corrected in this respect, and the word “ open,” where it occurs in the declaration, is erased, and the word “ close ” inserted in the place thereof.
It is claimed by the defendant’s counsel that at the time of the alleged injury the plaintiff. was not in the defendant’s employ for any purpose ; that he had been released or discharged until one o’clock, and was at liberty to go wherever he pleased; that the time was his own and not his master’s ; and when he went outside of the elevator building the master was not responsible for his acts; that he owed no duty to his master until the time for him to resume his employment, and whatever he did during this time was voluntary on his part; that during this time the master owed no duty to the plaintiff, certainly none to maintain a ventilator which was not for the benefit of those who might resort there for their own comfort or convenience merely; that the master had not invited him there, nor held out any inducements for him to go there.
If this position is correct, it follows as a matter of course that the plaintiff cannot recover. His action is based upon the existence of the relation of master and servant at the time of the accident, and if such relation did not in fact exist at that time, neither party owed to the other any duty upon which negligence could be predicated. At the conclusion of the argument of this case I had grave doubts whether the relation of master and servant existed between the parties at
In Whatman v. Pearson L. R. 3 C. P. 422, a servant employed to drive a horse and cart a certain number of hours each day, with an hour’s interval for dinner, acting contrary to his instructions, and during intermission, drove the horse to his home, and left it in front of his house while -eating his dinner. The horse ran away and damaged plaintiff’s railings. It was left to the jury to say whether the servant was negligent, and whether he was acting at the time within the scope of his employment, and the jury found in the affirma
True, the plaintiff in this case during the intermission given was at liberty to go where he pleased, ■ and was not obliged to stay upon the premises. If he did stay, however, he could in no just sense be considered a loiterer or a trespasser upon the premises of another. Having been accustomed to bring his dinner, he was not obliged to go upon the street to eat it; but under the circumstances, there was an implied permission to remain upon the premises while at his repast. I cannot accede to the proposition that he owed no duty to his master until the time stated had elapsed for him to resume his employment, and that whatever he did during this time was voluntary on his part. On the contrary, aside from a reasonable time to partake of his meal, it was his duty, if called upon, to resume his labor, and upon complying with such request what he did would not be voluntary on his part, in the sense that it would be outside of the scope of his employment.
But it is urged that the work he was called to do was not within the scope of his employment; neither was it in furtherance of his master’s interests, but was merely for Daugherty’s personal comfort and convenience, and that it could not have been supposed that the plaintiff would have been expected to obey the order given. Regard must be had, not only to the nature of the work which he was hired to do, but to the occasion and the circumstances attending the particular transaction.
During the forenoon of the day in which he was injured, the plaintiff had been at work, not in loading and unloading grain in the elevator, bnt by Mr. Savage’s direction, in taking down steam-pipes and placing them upon the boiler for the purpose of thawing them out; and he had before been directed to remove boards from off the boilers, and also, at another time, to remove dirt from this room. His work, therefore, in this room had been of a general nature, and such
It is furthermore claimed that it does not appear when this ventilator was constructed, nor by whom ; and that it does not appear that there was any want of due care in its construction, or that the master had any knowledge of any defects in its construction or arising afterwards. The method of construction was fully given in the testimony. It is claimed that it was negligent^ constructed, in that there was nothing to prevent the arbors of the damper from being lifted from their places when the damper was being closed from below. It requires neither testimony nor argument to show that the ventilator, as constructed, was incomplete. It was not supplied with any means whatever to close or regulate it. A chain, wire, or a cord attached to the upper or opposite side of the damper to that which was weighted, descending to the convenient reach of a person below, would be the most ordinary device to be used for the purpose. Constructing
I discover no error in the record covered by the fifth request of defendant to charge. The question of contributory negligence was properly submitted to the jury, and it was not error to refuse the sixth request. The other requests and rulings therein are covered, or intended to be, in what has been said. The case was submitted to the jury mainly upon the proposition that the defendant had negligently put the plaintiff to perform work outside the scope of his employment, of the dangers of which he knew nothing, by reason whereof he was injured. There were no exceptions to the charge as given. The testimony was sufficient to justify the verdict, and
The judgment should be affirmed.