This is thе second time this case has been before this court. The facts will be found fully stated in the former opinion, reported in
1. Did the obligation to keep the scales in order rest upon the Pfaudler Company, or upon the Detroit Safe Company ? The platform of the scales was in a private alley, about 12 feet wide, situated between the building ocсupied by the Pfaudler Company, on the east, and that occupied by the Detroit Safe Company, on the west. The beam of the scales was in the office of the Detroit Safе Company. The scales were originally the property of the
In our judgment, the liability of the Pfaudler Company does not depend on its ownership of the scales. At the time of the injury, plaintiff was an employé of the Shed-den Cartage Company, engaged in conveying a load of steel to the Pfaudler Company. He was on -the premises of the Pfaudler Company, using the scales, to fulfill a contract in which said company and himself each had an interest. Under these circumstances, defendant owed to plaintiff the obligation which an occupier of premises owes to one doing business with him on thоse premises by his invitation. The law which determines this obligation seems to have been settled in the case of Indermaur v. Dames, L. R. 1 C. P. 274, L. R. 2 C. P. 311. Plaintiff in that case was injured on defendant’s premises, while there “on lawful businеss, in the course of fulfilling a contract in which both the plaintiff and the defendant had an interest.” Said the court:
“We are to consider what is the law as to the duty óf the occupier of a building with reference to persons resorting thereto in the course of business, upon his invitation,*555 express or implied. The common case is that of a customer in a shop; but it is obvious that this is only one of a class. * * * The class to which the customer belongs includes persons who go not as mere volunteers, or licensees, or guests, or servants, or persons whose employment is such that danger may be considered as bargained for, but who go upon business which concerns the occupier, and upon his invitation, express or implied. And with respect to such a visitor, at least, we consider it settled law that he, using reasonable care on his part for his own safety, is entitled to expect that the occupier shall, on his part, use reasonable care to prevent damage from unusual danger which he knows or ought to know, and that, where there is evidence of neglect, the question whether such reаsonable care has been taken, by notice, lighting, guarding, or otherwise, and whether there was contributory negligence in the sufferer, must be determined by a jury as matter of fact. * * * There was no absolute duty to prevent danger, but only a duty to make the place as little dangerous as such a place could reasonably be, having regard to the contrivancеs necessarily used in carrying on the business.”
It is true that in the foregoing case the occupier knew of the alleged defect. But the principle of the decision would hold him responsible for defects not known to him, if due diligence on his part would have discovered and remedied them. Cooley, Torts, p. 605; Campbell v. Sugar Co.,
2. Did the evidence warrant the jury in finding that due diligence would have disсovered and remedied the defec-' tive timber before plaintiff’s injury? Defendant claims that the testimony conclusively proves that the scales were thoroughly overhauled, and nеw timbers put in, in October, 1893, and that the testimony conclusively proves that, according to experience, these timbers would not decay as early as January, 1898, the date of plaintiff’s injury, and therefore that defendant was entitled to a verdict. It is true that one Adolph Marschner, an expert scalemaker, does testify that these scales were rebuilt of new timbеr in
3. Whether or not plaintiff’s load was too heavy or improperly distributed was, according to the decision on the former hearing, a question for the jury. We do not think any such different question is presented by this reсord as to demand a different decision.
4. The court charged the jury:
“If you find either that the sticks were not put in new in 1893, or that ordinary experience ought to have advised a reasonably prudent man that sticks оf timber of that character, situated as they were, would not remain sound for a period a little more than four years, then the negli*557 gence of the defendant the Pfaudler Compаny will have been established, provided you determine that the accident occurred by reason of the rotten character of the stringer.”
All the testimony in the case tended tо prove that such timber would last at least five years. There was no testimony which would warrant the jury in finding that ‘ ‘ ordinary experience ought to have advised a reasonably prudent man thаt sticks of timber, of that character, situated as they were, would not remain sound for a period a little more than four years.” It is not true, as contended by plaintiff’s counsel, that the fact, if it was a fact, that these timbers decayed in four years and three months, would afford “evidence that common experience had shown that they would not last as' long or longer than that.” A single instance is no evidence of common experience. The jury were therefore invited by this charge to base their verdict upon facts or information not cоntained in the sworn testimony, and the charge was therefore erroneous.
Complaint is also made of remarks made by plaintiff’s counsel in his argument to the jury. These remarks were improper. As the case must be reversed for the error already pointed out, we refrain from deciding whether or not these remarks constituted reversible error.
Judgment reversed, and a new trial ordered.