156 Mich. 473 | Mich. | 1909
This action was brought to recover for damages resulting to the estate of Otto Kleinfelt by negligently causing his death in one of defendant’s mines at St. Charles, Mich., October 24, 1905. At the close of all the proofs, the court directed a verdict for the defendant. It becomes necessary therefore to determine whether there was any testimony offered on behalf of the plaintiff which fairly tended to show facts from which a liability could be drawn.
The defendant’s, mine was about 195 feet deep, and miners and others customarily entered and departed from the mine by means of cages operated in the main hoisting shaft. These cages were raised and lowered by means of cables attached to drums operated by the hoisting engine
On the date in question plaintiff’s intestate, who was a miner in defendant’s employ, was down in this mine breaking down coal for removal the following day. He was accompanied by his son, Gus Kleinfelt, a boy between
The plaintiff charges the defendant with negligence: In failing to have this cage in the mine fitted with iron bars or rings in proper place, as required by section 15, Act No. 100 of the Public Acts of 1905; in permitting a fireman to operate the cage and hoisting device, contrary to the provisions of section 3 of the same act; in directing the deceased to go upon the cage at the same time that a pipe 14 feet long and 1^ inches in diameter was to be carried; in allowing said pipe to be carried on the cage together with deceased and other passengers; and in not providing a proper catch or safety device for holding the lid at the top of the cage in a vertical position.
The statute (Act No. 100, Pub. Acts 1905) provides, in section 3:
“That only a competent and trustworthy engineer*478 shall be permitted to operate the cages and hoisting devices in all coal mines (any coal mine) of this State.”
By section 15 it is provided :
“Every cage on which persons are carried must be fitted up with iron bars or rings in proper place, .and a sufficient number to furnish a secure handhold for each person permitted to ride thereon.”
That the testimony offered on the part of the plaintiff tended to show a neglect by the defendant of each of the duties defined by these two sections, is beyond controversy. It is also settled in this State that, where a statute imposes a duty upon the employer for the protection of the employe, injury from the neglect of this duty is not one of the risks assumed by the employé. See Sipes v. Starch Co., 137 Mich. 258; Murphy v. Grand Rapids Veneer Works, 142 Mich. 677; Swick v. Cement Co., 147 Mich. 467; Layzell v. J. H. Somers Coal Co., ante, 268. It is suggested that the passenger might have caught hold of the braces or trip rod or sheet iron sides to protect himself, but it is not clear that it would not have been an act of negligence on his part to have caught hold of some of these places. It certainly would have been a great inconvenience for a man of the height of deceased to have reached the trip rod, and it does not appear that the miners were accustomed as a rule to resort to these makeshifts. It was at least a question for the jury as to whether there was a neglect to comply with the statutory provision of providing rings or bars in the proper place to furnish a secure handhold.
The circuit judge seems to have been of the opinion that any fault of the fireman would be a fault of a fellow-servant of the defendant, unless notice of his incompetency was brought home to the company. This view ignores the fact that the fireman was not of the class of mechanics who, under the statute, are authorized to operate hoisting engines such as these, and, this being so, the deceased did not assume the risk of his incompetency.
It was also the view of the circuit judge that there is no evidence that would indicate that, had the handles been there, this accident would not have happened. It was in evidence that when the crash came all the employés of the cage were thrown violently to the floor of the cage. It was open to inference that, had handles been provided, and had they been in use, this would not have happened, and it might very well have been found by the jury that the death of this decedent might have been averted had these provisions been made. This being so, the most that can be said upon the question of proximate cause is that the presence of this rod might have been a cause of the crash, and that its presence may be said to have been the fault of the fellow-servant; but, if this be so, there were concurring acts of the fellow-servant and negligent acts of the employer in intrusting its hoisting device to one not an engineer who was running the car at great speed, and the failure to provide handles which might have enabled the deceased to avert the injury which came from the concurring fault of the co-servant. The rule is that, where an injury results from the fault of the fellow-servant, concurring with that of the master, both may be liable. McDonald v. Railroad Co., 108 Mich. 7; Hayes v. Stearns & Co., 130 Mich. 287; Lockwood v. Tennant, 137 Mich. 305. To say that the proximate cause of the injury, in the absence of handholds, is something other or different from that neglect of duty, would be practically to render this statute of little value to employés. The occasion for the handhold arises only when an accident occurs, either unforeseen or through the fault possibly of a fellow-servant. It is in this emergency that the handhold is of some value to the employé, and undoubtedly it was with the view of meeting this emergency that the legislation was enacted. It would not meet the purpose of the legislation if the courts
The judgment will be reversed, and a new trial ordered.