42 Mich. 34 | Mich. | 1879
Kitts sued the mining company to recover damages for an injury alleged to have been suffered' by himself through the company’s negligence while in its employ as a miner. The declaration is given in the margin.
It was suggested, rather than urged, on the part of the defense, that the timber may have been weakened by a fragment of a rock falling upon it from above, and an inference to this effect might be drawn from the proofs. On the other hand the effort of the plaintiff seems to have been directed to satisfying the jury that
The circuit judge was requested to instruct the jury that even if they found that Wagner was negligent, yet his negligence was the negligence of a fellow servant of' the píaintiff, and of this the plaintiff took the risk. This was refused on the ground,- ás would seem, that in respect to the supervision of this bridge or passage way Wagner was charged with the responsibility of the company, and his neglect was the neglect of his principal. As between the company and any third person, the extent of the authority or responsibility of Wagner would have been immaterial: but when a servant demands from his master compensation for an injury received in his service, it is necessary that he trace some distinct fault to the master himself. The mere fact of such injury is no evidence of such fault; neither is the mere fact that it resulted from the carelessness of some other person in th'e-'-same employment. The servant assumes all the usual risks of his employment, and among these is the risk that fellow-servants will sometimes be careless and •that injuries will result. All that can be required of the master in that regard is that his servants shall be prudently chosen, and that they shall not be retained in his service after unfitness or negligence has been discovered and has been communicated to him. This duty of due care in the employment and retention of competent servants is one the master cannot relieve himself of by any delegation, and if it becomes necessary to entrust its performance to a general manager, foreman or superintendent, such officer, whatever he may be called, must stand in the place of his principal, and the latter must assume the -risks of his negligence. The same is true of the general supervision of his business: if .there is negligence in this, the master is responsible foi* it, whether the supervision be by the master in person or by some manager, superintendent or foreman to
But Wagner did not stand in respect to this company in any such position. He was no superintendent or manager; he was nothing but a fellow-servant of the plaintiff. The duties of the two were different, it is true, but so commonly must the duties of fellow-servants be. He had one thing to do and the plaintiff another, but neither stood in the master’s place in respect to the other; and if it be true, as the plaintiff claimed, that Wagner had special authority and was charged with special duty in respect to the particular passage way, this cannot vary the legal aspects of the case. In any such business there must be division of employments among servants: one looks' after one thing and another after another: but this each understands when he enters the service: he knows that his fellow-servants are to be charged with duties and responsibilities of differing natures and differing grades, and he also knows that one of the necessary risks of the employment is that any one of them may be negligent and cause him injury. This risk he assumes. It is immaterial that the negligent servant was in a position of greater responsibility, than himself, or in a different line of employment, so long as both were in the same general business, so that the negligence of the one might contribute to the danger of the other. Lehigh Valley Coal Co. v. Jones, 86 Penn. St., 432; McAndrews v. Burns, 39 N. J., 117.
If therefore it had appeared that Wagner was negligent, as the plaintiff claimed, the action must nevertheless have failed. But we look in vain in the record for any. evidence that Wagner was negligent. It may be
The judgment must be reversed with costs and a new trial ordered.
County of Houghton, ss.
Joseph Kitts, of said county, complainant herein, by Ball & Owen, his attorneys, complains of the Quincy Mining Company, a corporation, existing under the laws of this State and doing business in said county of Houghton, defendant herein, of a plea of trespass on the case, filing this declaration as commencement of suit. For that whereas, the said defendant, heretofore, to wit: on the 20th day of April, A. D. 1876, and for a long time prior thereto, to wit: at said county of Houghton, was the owner of, and was operating and working a certain copper mine 'there situated, for the working of which said defendant required and employed a large number of men,
And by reason of the premises, it became and was the duty of said defendant to use and exercise reasonable care and diligence, in the construction and maintenance of such bridge, and to keep the same in a secure and safe condition for its said employees to pass over, so long as they were so required to pass over said bridge, in doing the work of said defendant.
Yet the said defendant, well knowing the premises, did not nor' would keep and maintain said bridge in such condition as to be safe for its said employees to pass over, but negligently and carelessly suffered the same to become unsafe, weak and insecure, and suffered the planks of which said bridge was constructed to become decayed, and negligently and carelessly suffered said decayed and weak planks to remain in said bridge, for its said employees to pass over,
And the said plaintiff avers that heretofore, to wit: on the day and year first aforesaid, he was an employee of said defendant, and was hired by said defendant to labor for it in said mine, in and about the working thereof, and that while he was carefully and prudently passing along said “drift” or “level” and over said bridge, in obedience to the orders and requirements of said defendant, and in the course of his said employment, ignorant of the unsafe condition of said bridge, and of the danger to wit: on the day aforesaid, one of the fplanks of said bridge, upon which he was necessarily walking, being weak and decayed as aforesaid, gave way and broke, and by reason thereof, and by reason of the negligence, carelessness and misconduct of the defendant as aforesaid; the plaintiff, without fault or negligence on his part, fell down said excavation, to a great depth, to wit: to the depth of one hundred feet, upon the rocks at the bottom thereof, and was greatly wounded and injured by said fall, in the thigh, leg, side and head, and thereby became and was sick, disordered and sore for a long space of time, to wit: hitherto, during all which time he has suffered great pain, and has been put to great expense for medical attendance, care and nursing, to wit: the sum of one thousand dollars; and by reason thereof, he has become permanently disabled and crippled in his left leg, and is entirely deprived of the use thereof, and to the damage of the said plaintiff of twenty thousand dollars, and thereupon he brings suit, etc.
BALL & OWEN, Attorneys for Plaintiff.