183 Mich. 1 | Mich. | 1914
Alleging in his declaration that the defendant, his employer, set him at work dangerous to life and limb, that he was within the protection of the statute (Act No. 285, Pub. Acts 1909, 2 How. Stat. [2d Ed.] § 4009 et seq.), and that he was, without fault on his part, injured in performing his work, plaintiff sued for and recovered a judgment for damages. A motion for a new trial was refused. Whether, considering his age,, the employment, and the instructions which were given him, plaintiff’s injuries were due to his own negligence was the principal issue at the trial and is the principal question presented by the record before us; it being contended that upon this point a peremptory instruction should have been given in defendant’s favor. That the instructions given were prejudicial, and that, in any event, a new trial ought to have been granted, are other contentions of appellant.
There seems to be no particular dispute about plaintiff’s age. That he was injured upon one of defendant’s machines at which he was assisting another and mature operator in the operation of trimming veneer is clear. It is a contention of defendant that the plaintiff’s duties, if performed according to the nature of the work to be done and the instructions which were given, placed him in no danger and made
It is pointed out that in one portion of the charge the court said, in defining “negligence” and in applying the definition, that if plaintiff—
“Did not use the care and prudence that an ordinary man would under such circumstances, but put his hand through without caution and care, and without calling the attention of anybody to the matter, or without instructions from any person to put his hand under the knife, unless he thought it necessary in the performance of his work, then I charge you he would be guilty of negligence, and if he was guilty of negligence, he cannot recover in this case.”
It is argued that the theory of recovery suggested in the instruction is not the theory of the declaration, which alleges the performance of a duty in accordance with orders — that plaintiff was ordered to do that which he did do. It is further argued that an im
While several witnesses sworn for defendant contradicted plaintiff in regard to the instructions given him, there were circumstances proven by which the truthfulness of the testimony might be, in some de
Appellant preferred a number of requests to charge based upon a claimed misrepresentation of plaintiff with regard to his age when he sought and entered upon the employment. In some of them the ruling asked for is, in substance, that as plaintiff represented himself to be, so his employer had the right to believe him to be and to instruct him accordingly, and so the jury had the right to and should regard his conduct. Questions of more than ordinary interest are thus suggested and discussed by counsel for appellant, but they are not properly for discussion because defendant’s witness who hired plaintiff does not pretend that the plaintiff misrepresented his age, nor claim to have taken any precautions or to have entered upon any investigation of the matter. He thought, he says, from plaintiff’s appearance, that he was “anywhere from 17 to 19 years. Somewheres along in there.” True, plaintiff testified that he told this witness that he was 17 years of age when, in fact, he was 16 years and 2 months old. But defendant’s agent did not, according to his testimony, rely upon what. plaintiff told him, but did rely upon his own judgment. Upon this point the case at bar and Syneszewski v. Schmidt, 153 Mich. 438, 444, 445 (116 N. W. 1107), cannot be distinguished. What was there said is applicable here.
I do not find reversible error made out, and think therefore the judgment should be affirmed.