156 Mich. 345 | Mich. | 1909
The plaintiff was injured on the defendant’s planer, which was admittedly in good condition and running order. His hand was drawn upon the knives
There is but one explanation of the accident, and that must have been apparent to the plaintiff, or anyone else, viz., that there was a want of steady, adequate power at the machine to give the necessary velocity to make the revolving knives cut. The result was they stuck in the wood and the plaintiff was hurt. The plaintiff claims that this was due to a want of pressure from the boiler, and the testimony tends to show that the fault was first noticed about the time that the steam pressure was kept down to 40 pounds by direction of the boiler inspector, ■which was three or four days before the accident. It had previously been as high as 70 pounds. On the other hand, the defendant produced testimony tending to show that, when the pressure was reduced, it directed that the load be reduced in proportion by stopping about half of the machinery, and therefore the unsteadiness was not due to the change in pressure. The want of power at the planer was manifestly due to a want of power at the boiler, for it could not well be due to any other cause; the planer being in good running order. This may be accounted for upon the ground that at 40 pounds pressure the boiler did not furnish sufficient steam to run the machines which defendant directed to be run, or was caused by the negligence of the firemen in firing, or the disobedience of men in running more machines than directed by defendant. All of these are ways in which the slowing down may be explained. If the lack of capacity in the boiler was the cause, the fault was the defendant’s; if disobedience of others, it was the fault of plaintiff’s fellow-servants, though no such claim is made in the case, and we need not discuss it.
Plaintiff has rested his case on the claim that there was insufficient boiler capacity, at 40 pounds pressure, to run this planer safely with such other machinery as was kept
Plaintiff’s right of recovery was contested on two other grounds, besides the want of negligence upon the part of defendant:
(1) That the plaintiff knew of the erratic running of the machine, and chose to use it notwithstanding, and therefore assumed the risk.
(2) He was guilty of contributory negligence in using the machine.
We will discuss these together. The plaintiff was fully conscious of the danger of erratic motion, and he must have known that it was due to want of power at the machine. If it was negligence on the part of a master to have a machine run under such circumstances, it was also negligent for one to run it, with a knowledge of such danger, and he would be guilty of contributory negligence if he did so, and could not recover. There are doubtless few who have not seen the machinery in a water mill slow down and start up from a varying load. The same thing can be seen when steam power is used, unless the engine is under a governor to keep it steady, and, even where it is, if the load is in excess of the power plant. We understand that a governor was used on defendant’s engine, but the contention of plaintiff’s counsel
In saying this, we eliminate all questions relating to the subject of vice principal. Ordinarily a foreman of a shop is not a vice principal, as we have often said, and there is nothing in this case to indicate that he was charged with the performance of any of the duties of a vice principal. Counsel for the plaintiff make the point that he promised to repair the machine, and said it had been repaired, etc., and apparently claim that this justified plaintiff in going to work, and relieved him from the assumption of risk.
In this connection we allude to a question raised upon the charge of the court. Counsel say that the judge confused the jury by commingling his instructions as to assumption of risk and contributory negligence. We have examined this question. Both defenses depend upon the same facts, viz., that plaintiff went to work with the planer in the face of known danger from want of power. If he deliberately chose to do this, it was an assumption of the risk, and, if it was not in that case also contributory negligence, it is difficult to see how defendant was injured by its being called such. If there was any contributory negligence, it consisted in plaintiff’s using the planer with knowledge. This was also an assumption of risk. No injury was suffered from this charge, and in saying this we do not intend to imply any impropriety in the instructions.
The court left the plaintiff’s claim to rest on one point, i. e., that he was not provided with a reasonably safe machine, and there is no indication that he excluded any of the defendant’s defenses. We are constrained to say that the court did err in giving the following request to charge:
“ I charge you, if you believe from the evidence in this case that the plaintiff complained of the defective condition and working of this machine — that is, the machine in question — on which he was injured, and that assurances were made to him that the machine would be so altered that the defect complained of would cease to exist, then the plaintiff had a right to continue to work at the machine a reasonable time after such assurances, without assuming the risk of injury.”
This is so because there is no proof that the foreman
The judgment is reversed, and a new trial ordered.