170 Mich. 299 | Mich. | 1912
(after stating the facts). The declaration is composed of three counts. The first two counts predicate liability on the part of the defendant by reason of the statute, 3 Comp. Laws, §§ 11527 and 11528. The third count sets out a common-law duty, the breach of that duty and consequent damage.
The caBe seems to have been tried at circuit upon the theory of a common-law liability only. In this court plaintiff does not urge defendant’s liability under the statute, and we are therefore not called upon to determine its applicability to an opening such as the one which caused the death of plaintiff’s intestate. That question if presented would be one by no means free from doubt.
The record contains abundant evidence tending to show that the hole into which the boy fell had existed for several years, and that it was unprotected. It is, we think, clear that no responsible officer of the defendant company had actual knowledge of the dangerous opening. The superintendent of the defendant company, however, testified that he had known of the existence of the trench leading from the hole down the slope for. some 11 or 12 years. He further testified that he learned of the shaft the morning after the accident, and that he then saw a piece of timber which looked as if it had been recently broken; his inference being that this timber had constituted a portion of a covering for the shaft, and that it had rotted away and fallen into the shaft. After a careful consideration of all the testimony offered on behalf of the plaintiff, we find ourselves unable to agree with the conclusion of the learned circuit judge, who held that:
‘ ‘ In my judgment there has been an entire failure on the part of the plaintiff to establish any negligence in this defendant company, which was the proximate cause of the death of the child.”
We think the question of the defendant’s negligence should have been submitted to the jury. If the shaft had been permitted by the defendant to remain open and unguarded for a number of years, even without actual knowledge on its part, that fact would certainly afford some evidence that the defendant had not exercised reasonable care in the premises, and particularly would this be true if the existence of the dangerous opening was known to those living in the vicinity.
It is urged by the defendant in this court (though the point was not made below) that in any event the verdict was properly directed because the boy was, at the time he met his death, a trespasser, or at best a mere licensee, to whom the defendant owed no duty. Though not properly
The judgment is reversed, and a new trial ordered.