163 Mich. 538 | Mich. | 1910
(after stating the facts). As to plaintiff’s claims of negligence under the heads “a,” “c,” and “d,” we are of opinion that the case falls directly within the principles of the decision in Petaja v. Mining Co., supra. This leaves for consideration only the alleged negligence of defendant set out under “6.”
The record shows that, except between February 27th and April 14th, plaintiff had had no experience as an iron miner. He testified he did not know that, if the roof was allowed to stand several hours longer than usual, there was greater danger of the fall of a large body of ore from the roof, due to continued earth pressure from above. He further testified that he was never warned of this extraordinary danger. There is abundant testimony in the record tending to show that, if the timbering was not done promptly, the danger would be greater by reason of the earth pressure.
The questions involved, therefore, are:
(1) Was the risk or danger greater by reason of the delay in timbering ?
(2) Did the plaintiff understand the additional risk, if there was any, or should he have understood and appreciated it, if exercising ordinary prudence ?
(3) If there was an added danger by reason of the delay, was there a duty on the part of the defendant to warn plaintiff of it ?
“The general rule is that it is the master’s duty to instruct the servant as to the character of risks to be run, which he will not discover by the exercise of ordinary care. Where the danger is not undisclosed, and the servant is a mature man doing ordinary work, he assumes such risks as are obivious, and negligence will not be imputed to the master for an accident therefrom.”
In Ribich v. Smelting Co., 123 Mich. 401 (82 N. W. 279, 48 L. R. A. 649, 81 Am. St. Rep. 215), it was said:
“ Where extraordinary risks are or may be encountered, if known to the master, or should be known by him, the servant should be warned of these, their character and extent, so far as possible” — citing Smith v. Car Works, 60 Mich. 501 (27 N. W. 662, 1 Am. St. Rep. 542).
See, also, Hoffman v. Adams, 106 Mich. 111 (64 N. W. 7); Barr v. Cask Co., 129 Mich. 278 (88 N. W. 640); La Barre v. Railway Co., 133 Mich. 192 (94 N. W. 735); Getter v. Manufacturing Co., 136 Mich. 330 (99 N. W. 281); Brockmiller v. Industrial Works, 148 Mich. 642 (112 N. W. 688); Lehto v. Mining Co., 152 Mich. 412 (116 N. W. 405).
It is strenuously urged on behalf of the defendant that the examination of the plaintiff himself shows that he was fully aware of the danger of injury from falling ore, and that to have given the warning, which plaintiff complains he did not receive, would have conveyed no information to plaintiff which he.did not already possess; i. e., that ore from the roof of the raise was liable to fall at any time. There can be no doubt that plaintiff knew that ore, in small quantities, was liable to drop at any time, and it may be true that he knew, or should have learned from his experience and the character of the ore in which he was working, that a delay of six hours would be likely, or at any rate liable, to cause a large mass to become dislodged. The knowledge of this danger, if he possessed it,
Under all the circumstances disclosed by this record, we think the jury should have been instructed to determine:
(1) Whether or not the delay in timbering increased the danger.
(2) Whether or not plaintiff knew, or in the exercise of ordinary prudence should have known, of the increased danger.
(3) Taking into consideration plaintiff’s experience and the knowledge he had gained of the character of the ore in which he was working, did defendant owe him the duty of warning him of the increased danger, if such existed ?
The judgment is reversed, and a new trial ordered.