127 Mich. 94 | Mich. | 1901
The plaintiff sued the defendant to recover for personal injuries received by him while in the employ of the defendant. The trial judge directed a verdict in favor of defendant. The case is brought here by writ of error.
The Sparta Brick & Tile Company is engaged near Sparta, and near the line of the defendant’s road, in making bricks and tile. Its kilns are under a center building, upwards of 200 feet long. This building consists of posts set in the ground, and extending above the ground about 16 feet, upon the top of which are plates. The roof boards
The plaintiff was 25 years old. He had been a brakeman nearly, three years. He was in the employ of the defendant, and had made four trips over its road, in the capacity of a brakeman on a freight train. These trips took him near the building in question. On December 28, 1898, the main part of the train was left near the station, while the locomotive and a box car were backed
‘ ‘ Plaintiff alleges that said defendant wholly failed to maintain said building in a reasonably safe condition, or in reasonable repair, but it allowed said building to become old, rotten, and worn out; the roof and rafters thereof become weak, and in such a condition that they would separate from whatever substance or' thing they were attached to; that said building had stood so long, and was in such a condition, that it was rickety, and was liable at any minute to fall from its own weight, and it not being of sufficient strength to hold itself together, which condition was apparent to any one upon any reasonable examination of the same; and this plaintiff alleges that it was the duty of said defendant to have examined said building, and to have ascertained its condition, but that said defendant wholly failed and neglected to make any such examination.”
The testimony offered by the plaintiff was to the effect that the building was not properly constructed in the first place, that it was old and weak, and that its condition was apparent to any one who would examine it, and that, about two years before the accident occurred, a portion of the roof had fallen. On the part of the defendant the testimony was to the effect that the building was well built, and was of the same character of construction usual for buildings erected for the purpose for which this was
Counsel for the plaintiff say:
“ When the servant in Michigan accepts service from a master, there is a contract between him and the master that the master will furnish him with a reasonably safe place in which to work, and it is a duty that the master cannot shirk or charge to others than himself by contract, bargain, or any sleight of hand performance;” citing Morton v. Railroad Co., 81 Mich. 423 (46 N. W. 111); Van Dusen v. Letellier, 78 Mich. 492 (44 N. W. 572);
We have no doubt this proposition is fully sustained by the rulings of this court. Counsel say the same doctrine applies when a railroad company is using property belonging to another company or to some one else; citing 1 Shear. & R. Neg. § 196; Wabash, etc., R. Co. v. Peyton, 106 Ill. 534 (46 Am. Rep. 705); Stetler v. Railway Co., 46 Wis. 497 (1 N. W. 112); Id., 49 Wis. 609 (6 N. W. 303); and other cases.
It is insisted by defendant that an examination of these cases shows the defects resulting in the injury related to the roadbed itself, or to the train or its equipments, and for that reason do not apply to the cáse at bar. If the principle determined by these cases is to control, we think it cannot be said that the duty of the company to maintain a safe place for its employés to work is discharged if it leaves a structure over its tracks in so unsafe a condition as to imperil the safety of an employé whose duty it is while employed to pass under it. Was it, then, the duty of the company to its employés to see that this place where it built its track, and where it sent its employé to work, was reasonably safe ? In Ross v. Township of Ionia, 104 Mich. 320 (62 N. W. 401), it was held, in effect, that, in building an approach to a bridge, the township authorities may not ignore surroundings, but are bound to exercise such caution as existing circumstances suggest. If the duty of maintaining this spur was a duty which the company owed to its employés, it will not do to say that this duty was performed by building a track which had no defects in itself, if there was that above the track which endangered the safety of the employé. The rule is established by the weight of authority that, when a rail
It is urged by counsel that, though they have not been able to find a case just like this, applying the principles announced in Pahlan v. Railway Co., 122 Mich. 232 (81 N. W. 103), to this case, it justified the judge in directing a verdict in favor of defendant; counsel citing, also, Carolan v. Southern Pacific Co., 84 Eed. 84. The Pahlan Case was determined upon the assumption of risk by the employé, who had knowledge of like conditions along the way of the company. The opinion of Justice Hooker recognized that the company was bound to furnish a reasonably safe place to work. Nor is the case of Carolan v. Southern Pacific Co., 84 Fed. 84, in point. In that case the question was whether the company was liable to an employé for injuries received by him because of the improper piling of boxes or freight on a wharf adjacent to defendant’s track. The condition which caused the injury to plaintiff arose, not through an unsafe condition of the premises, but because of an improper use made of premises in proper condition, of which the plaintiff had notice. In the present case the plaintiff cannot be said to have assumed the risk that the building into which the company ran its track was liable to fall down upon him while in the performance of his duties. It is not a case in which the structure could be avoided, as in the Pahlan Case. If in any case an employé has a right to rely upon the performance of the duty to provide a safe place, it would seem that he may do so when he is called upon to pass under a building, to the extent, at least, of assuming that the building will not fall upon him by its own weight.
Judgment is reversed, and a new trial granted.