Nichols v. Pere Marquette Railroad

145 Mich. 643 | Mich. | 1906

Ostrander, J.

(after stating the facts). 1. Does the testimony to which reference has been made present a question of law or of fact upon the subject of the negligence of defendant ?

It is assumed that the plaintiff in rendering proper service to defendant was required to use the ladder. The ladder was an instrument of such service, provided by the master. The law requires that the master shall use ordinary care and diligence to provide safe instruments of service. When, as in this case, such care is originally exercised and the default charged is in maintenance, it must, generally, be made to appear that the master had actual or constructive notice of the particular defect complained of. The master is held generally to have constructive notice of whatever ordinary care and-diligence would discover. He is not liable to a servant for defects of which he had no notice and which ordinary care would not discover. It is not claimed that the defendant had actual notice of the particular defect. So far, then, as the defendant’s negligence is concerned, plaintiff’s case rests upon the theory of a constructive notice and this upon the failure to properly inspect or to inspect at proper intervals of time. The case is even narrower. It is not claimed by plaintiff that in July, 1903, the- particular defect was obvious. Indeed, it is denied that there was an obvious defect when plaintiff used the ladder. He testified:

"There was not anything either time I went up the ladder to attract my attention to any danger — the ladder was painted — I cannot tell why I did not pull the slat out when I went up unless it was that I happened to take hold on the right side where the nails held. The slat set in notches and in stepping on it it might have held unless it was stepped on in a certain way. ! had no notice of the ladder being defective in any way.”

Counsel for plaintiff say in the brief:

"No man could see. that the nails had rusted off, or that the wood they went into had rotted.”

Plaintiff’s case rests, therefore, upon the alleged failure to discover such, if any, concealed unsound condition as existed in July, 1903, and upon failure to repeat, within six months, the inspection. Upon neither of these points is there testimony tending to show negligence of the defendant. The nature of the wood used, how long it might be expected to resist decay, how fast decay, once started, would progress — none of these facts appear. Assuming that the age of the ladder, its exposure, the defect discovered, raised the presumption of negligence on the part of defendant in the absence of proper inspection of the ladder, it appears that it was inspected in June and in July, 1903, in manner already described. The character of the inspection which the master is bound to make, where failure to inspect would be evidence of negligence, is variously stated in the opinions of courts and in the textbooks. It may be described as such as a person of ordinary prudence would have made under the circumstances. 1 Labatt on Master and Servant, § 161. Going along with this idea of a standard of inspection is the further one that the tests shall be ‘ ‘ such as are ulual and ordinary in the business,” “such tests as custom and experience have sanctioned,” “usual tests,” “ordinary inspection,” “ careful and skillful application of the ordinary and approved tests,” — all- of which descriptive terms have been used by courts. Whether the examination which is made conforms with the standard is usually a question for the jury. Labatt on Master and Servant, § 161, and notes. This does not mean, however, that juries may act upon conjecture, or that courts are bound, without regard to the state of the evidence, to ask juries to determine whether a proved inspection was proper inspection, or whether inspections were made as frequently as they should have been. Without in any respect resting the ruling upon a presumption that an inspection made is properly made, there is, in this case, no conflict of testimony upon the subject. Nor may two opposed inferences be reasonably drawn from the facts. The appliance was simple, could be looked at and examined from all sides, was not, like active machinery, worn out by use or subjected to strains. That the inspection made satisfied a proper standard of inspection, is not disputed by testimony; it was according to the custom of defendant. No one assumes to say that any reasonable test would have discovered, in July, 1903, such defect, if any, as then existed. The inspection which was made having discovered no defect, that six months intervening inspections was too long an interval is not shown by any testimony. It is not claimed that what is wanting in the testimony is supplied by common knowledge and experience of men. In saying this, we have not overlooked a certain concession of counsel for defendant, made at the trial.

The case, is to be distinguished, upon the facts, from Howe v. Railroad Co., 139 Mich. 638, in the following important particular: It appeared in that case that the safety of the floor depended upon the soundness of the nails used in the stringers which supported it. These stringers were toe-nailed. There was testimony that the nails were rusted off. when the floor gave way a few weeks after the inspection. The inspector did not see the nails, though he knew of the particular construction. It was held that it could not be said, as matter of law, that proper inspection of the building did not require an examination of these nails to see if they were rusted off, the building having been erected some 15 years prior to the injury of plaintiff.

2. As the case must go down for a new trial and upon such trial the evidence of defendant’s negligence may be more complete, it is necessary to notice the further contention made for defendant. Various approved rules of law are stated in the brief; their application to the facts is questionable. We are satisfied, for example, that whether the defect in the ladder was obvious or discoverable by the ordinary care required of one using the ladder was for the jury. We are as well satisfied that the duty of plaintiff to inspect the, ladder cannot be said to have been established. So far as the argument proceeds upon the theory that the simplicity of the appliance determined, conclusively, the risk assumed by plaintiff, it is believed to be not well supported. Undoubtedly, the degree of care exercised by McCormick would have saved plaintiff from injury. We are not disposed to hold that a 35-foot ladder attached to a water tank, only occasionally used, is a common tool or appliance within the meaning of the rules which exempt the master from the duty to inspect them upon the presumption that those using them will, and should, first discover defects. It is true that in the case at bar the plaintiff knew the age and the exposure of the ladder as well as did the defendant. But we think it cannot be said that all defects arising from age or decay, which ordinary inspection for the purpose of inspecting would discover, would necessarily or probably be discovered or discoverable by a servant in its use, even if due care on his part was exercised. Twombly v. Electric Light Co., 98 Me. 353 (64 L. R. A. 551).

The judgment is reversed, and a new trial granted.

Carpenter, C. J., and McAlvay, Blair, and Hooker, JJ., concurred.