127 Mich. 103 | Mich. | 1901
This is an action on the case for the recovery of damages on account of the loss of an eye. From a judgment of $4,000 obtained by plaintiff, defendant has brought the case here by writ of error.
Plaintiff was employed as a calker upon a vessel being constructed at F. W. Wheeler & Co.’s yard in West Bay
“ I did not pick out the tool myself. Gereoux gave it to me. He was the man in charge of the storeroom where the employés were accustomed to go for tools to do their work. The soft-head which he gave me was made from a broken riveting hammer, the hammer end being out off. It was too hard, because it had been tempered as a riveting hammer, and the temper had not been taken out so as to make it a soft-head. I took it back to the storeroom the same day I received it, and wanted to get another one. Mr. Gereoux told me, if I could find a better one, to take
Plaintiff also claimed that, at the time of the injury, he was striking the soft-head as riveters usually do, and Lepan was holding it against the rivet in the usual way, and that he did not know the dangerous condition of the-soft-head. The defendant denied that the tool was not reasonably safe for use, and also denied Lepan’s version of his obtaining the tool.
In his charge to the jury, after stating the claims of the parties, the trial judge said:
“Theclaim of the plaintiff—and I say to you the only ground in this case on which the plaintiff can recover—is
‘ ‘ Now, it appears from the testimony that Lepan, before he used it, discovered that it was not so, as he claims. That would not be any defense to this defendant in this case unless you find that it became so from use. If this tool was reasonably safe and fit for use at the time Lepan got it, then the company has done all that their duty called upon them to do; but when Lepan took it back, and asked for another, the company, while they should have given him another, or should have put this in proper order, as a matter of mere right, were not under any legal obligation to do it. He knew that the tool was unsafe, and it was his option either to work with it or to quit. If he continued to work with it after he knew it was unsafe, he was guilty of just as much negligence as the company was, and you haven’t any right to award a verdict against the defendant in this case by reason of the fact that they refused to repair this tool for Lepan. That is not in the case at all, as far as your consideration of it is concerned.
“The first question for you to determine, and,the im
“I think I have already said to you that if this soft-
“You have a right, in determining these questions, to consider the nature of the tool. It is not an intricate piece of machinery. It has been exhibited before you, and your common sense may be applied to the question as to whether or not men who had had experience such as the plaintiff claims he had in the use of such tools would, by ordinary observation, have been able to determine whether this tool was safe or not. If you find that he knew it was not safe, and still continued to use it, he cannot recover in this case.
“ ‘ It is the duty of the plaintiff to satisfy you by a preponderance of evidence that all the material allegations of the plaintiff are true, and, unless he has done so, you must find a verdict for the defendant.’
“ ‘ The defendant is not an insurer of his employés against accidents, and the fact that plaintiff has lost an eye by an accident, in and of itself, does not entitle the plaintiff to a verdict.’
‘“Before you can find a verdict for the plaintiff, you must be satisfied that the defendant failed to supply the plaintiff with a reasonably fit safe tool with which to work, and that the plaintiff, on account of such failure, and wholly without negligence on his part, was injured.’
“ ‘ If you find that the tool in question was a reasonably safe one, and that the accident was such a one as might happen by the ordinary use of tools reasonably safe, then it was a risk of the employment, which the plaintiff assumes, and he cannot recover.’
“Defendant’s counsel has also suggested that I should say something to you in the way of instruction relative to their omission to produce Gereoux, the man who kept the shop, as a witness. That omission upon their part has been strongly commented upon by the attorney for the plaintiff, and it is not perhaps out of place that I should say something to you about it. Mr. Gereoux might, of course, have been called by either party. The plaintiff would have' a right to call him, or the defendant would have that right. It appears by the statement of counsel’ that he is outside of the jurisdiction of this court,—That he is in New York State, where he could not be reached by a subpoena of the court; and I say to you that, unless you find as a fact in this case that the defendant had some reason for not procuring Gereoux as a witness, and, even if they had, that the plaintiff had just as much right to call him as the defense, and you shall not infer anything against the defense in this case by reason of their omission to call him as a witness. He is not a party to the case, and the plaintiff had the same right to call him as the defendant.”
Upon the trial the judge was requested to direct a verdict in favor of defendant. It is insisted that, as Lepan knew the hammer -was a defective one, it was negligence
‘ ‘And if a workman should of his own choice, and unnecessarily, use a tool thus plainly defective, when others were- provided for his use, he is not absolved from the consequences of his own choice. * * * The servant may, in general, assume, without particular inspection, that the instruments which he is thus required to use are reasonably safe; but when, from use, they have become obviously defective and unfit, and the master has provided others, so that the servant knows that he is not required to use the former, the reason of the law holding the master to responsibility is inapplicable. * * * According to the evidence, it must be taken as a fact that the servants used this particular tool because they did not choose to get another.”
In Rawley v. Colliau it was said:
“The hammer which caused the injury had been in use for a long time, and its condition had been brought about by such use. * * * We cannot assume as a matter of law that the defendants were negligent because this sledgehammer was lying about the shop with its face cracked or battered, when there were others that were sound, and in fit and safe condition for use, and when neither the plaintiff nor any of his fellow-employés were obliged or directed by defendants to use this particular hammer in their work, and when they could have used a hammer not defective.”
The court further say:
“ If this hammer had been the only one in the shop, or the only one that could be used, or defendants had directed it to be used, knowing its condition, another case would be presented.”
“The record shows defendant furnished’an excellent-quality of steel from which to make the tool. It was made by a competent blacksmith. There is no claim that-when made it was not a proper tool with which to do the work required. * * * The men were not required or expected to use a tool after it became unsafe because .of use or from any other cause. They were at liberty to take a defective tool at once to the blacksmith, and have it repaired, or get a new one in its place. * * * The only testimony to the contrary is given by the -plaintiff, who never saw the tool, but was of the opinion, judging from the appearance of the small piece of steel taken from his eye, the tool was not a proper one to use.”
In none of these case was it shown that the master, the alter ego, knew the tool was defective, and, after such knowledge, directed its continued use, the injured person not knowing of the defect. In the Hefferen Case it was also said:
“ The responsibility of the master for injuries resulting from unsafe instruments or machinery may be said to rest upon the ground that these are the means, by which the servant is expected and required to do his work. The master furnishes them for that purpose, and expects and intends that the servant shall use them. The servant knows that this is expected of him. He may, therefore, in general, assume, without particular inspection, that the instruments which he is thus required to use are reasonably safe. But when, from use, they have become obviously defective and unfit, and the master has 5 provided others, so that the servant knows that he is not ’ required to use the former, the reason of the law holding the master to responsibility is inapplicable. If the master provides the proper tools for the use of his servants, responsibility for neglect to remove from the premises such as have become obviously unfit for use, if such responsibility exists, must rest, not on the ground that it is the duty of the master to furnish reasonably safe means for the prosecution of the work which his servants are required to do, but upon the ground that he is chargeable with negligence in suffering dangerous things to be where his servants may be injured by them. This principle is applicable under many circumstances,—as in respect to
In the case of Paulmier v. Railroad Co., 34 N. J. Law, 151, an engine broke through a trestle, killing a fireman. It was claimed the engineer knew of the insecurity of the trestlework, and had been directed not to go upon it. It was claimed in that case, as it is claimed, here, that, because the negligence of the fellow-servant contributed to the injury, there could be no recovery; but it was held the company was. liable. In Hunn v. Railroad Co., 78 Mich. 513 (44 N. W. 502, 7 L. R. A. 500), Justice Champlin had occasion to refer to this case, and used the following language:
“The defendant requested a charge to the effect that, although the jury might find the defendant guilty of negligence, yet, if the fellow-servant of deceased contributed to produce his death, the plaintiff could not recover. This request was rightly refused. The correct rule, and the reason for it, are stated in Paulmier v. Railroad Co., 34 N. J. Law, 155, as follows:
‘“The servant does not agree to take the chance of any negligence on tho part of his employer, and no case has gone so far as to hold that, where such negligence contributes to the injury, the servant may not recover. It would be both unjust and impolitic to suffer the master to evade the penalty for his misconduct in neglecting to provide properly for the security of his servant. Contributory negligence, to defeat a right of action, must be that of the party injured.’
“ Grand Trunk R. Co. v. Cummings, 106 U. S. 700 (1 Sup. Ct. 493); Keegan v. Railroad Corp., 8 N. Y. 175 (59 Am. Dec. 476 ); Chicago, etc., R. Co. v. Swett, 45 Ill. 197 (92 Am. Dec. 206); 2 Thomp. Neg. 981; Perry v. Lansing, 17 Hun, 34; Busch v. Railroad Co., 29 Hun, 112; Gray v. Railway Co., 24 Fed. 168.”
Exception is taken to the manner in which the trial judge gave defendant’s requests to charge. Counsel state their contention as follows:
“ It will be observed that the circuit judge failed to say that he gave the requests so read by him, or that the propositions of law therein were correct. During the argument of the law questions, the jury was excused from attendance upon the court, and it had no means of knowing that the particular requests were only part of those made, and therefore considered by the court to be correct. The court simply stated that counsel had handed them up as stating the law. Upon information, we will say that parties who heard the charge did not understand that the requests read were given. We wish to say that we understood them to be given, and were somewhat chagrined when informed that the jury did not; but, upon reading the charge, we see the force of the claim, and it is apparent that the jury was not given to understand that the requests as handed up embodied the law upon the subjects mentioned therein, and should control them in arriving at their verdict. This is made more apparent when attention is given to the court’s action in relation to the oral requests, for in that case he stated the oral requests,- and then proceeded to state his view. We were entitled to have these requests given, and, had we been impressed with the true situation at the time the charge was delivered, we should have called the court’s attention to it; but the error carinot now be remedied except upon a new trial.”
If the record were in a condition to raise the question, we do not think the point is well taken. A reading of the charge in connection with what occurred satisfies us the jury must have understood the requests were given.
Complaint is also made of that part of the charge referring to the oral request to charge the jury that they have no right to consider the failure of the defendant to procure the attendance of Mr. Gereoux as a witness. It • is said the court told the jury that it might find the defendant had some reason for not procuring Gereoux as a wit
“You shall not infer anything against the defense in this case by reason of their omission to call him as a witness. He is not a party to the case, and the plaintiff had the same right to call him as the defendant.”
We do not think the jury could have failed to understand this plain language.
Other questions are discussed by counsel. ■ We have examined them carefully, but do not deem it necessary to refer to- them further in this opinion. Many questions of fact were in dispute. We think they were properly submitted to the jury.
Judgment is affirmed.