123 Mich. 401 | Mich. | 1900
{after stating the facets; dissenting).
“And I charge you, on that subject, whenever there is-any hidden, unusual, or latent danger connected with any work, the law imposes a duty on the master or employer of informing the workman or employé of the danger. It is not enough to tell him that the work is dangerous, but the particular danger must be pointed out and explained. In this case, if you find from the evidence that there was danger of an explosion from the contact of water with the mixed copper and slag, then I charge you that thqt was a danger that was known, or that should have been known, to the smelting company, and that it was its duty to warn Ribich, the plaintiff, of that danger,, and to' explain to him the nature, force, and probable effect of such an explosion.”
The objection urged against this instruction is that it was-not the duty of the defendant to explain to plaintiff the “nature, force, and probable effect” of such an explosion. It is insisted that the defendant’s duty was fully performed when it had instructed him how to do his work; had informed him that it was dangerous to dump the pots before they were sufficiently set, and that an explosion would likely result. The question is one of great practical importance in the law of negligence. The only authorities cited in the briefs of either counsel are Smith v. Car Works, 60 Mich. 501 (27 N. W. 662, 1 Am. St. Rep. 542), and Fox v. Color Works, 84 Mich. 676 (48 N. W. 203). I must assume that counsel have made a careful examination of the authorities, and are unable to cite any which afford much light upon the question. After as careful an examination as I have been able to make, I do not find the question now presented discussed to any extent, or any authoritative declaration of law applicable to this case. In the Smith Case the plaintiff was engaged in carrying a ladle .of molten iron from one building to another,.
“Where extraordinary risks are or may be encountered, if known to the master, or should be known by him, the servant should be. warned of these, their character and extent, so far as possible.”
It was further said that it was the duty of the defendant to inform the plaintiff ‘ ‘ somewhat of its dangerous character.” This language falls far short of holding that it was the duty of the defendant in that case, in addition to instructing him how to do the work, and notifying him that there was danger of an explosion if the molten iron was spilled upon the ice, to also inform him of the “nature, force, and probable effect” of the explosion.
The Fox Case simply holds that it was the duty of the defendant to notify its employé, the plaintiff, of the dánger and effect of inhaling Paris green, and the precautions necessary to prevent the injurious effect. Neither of these cases supports the soundness of the instruction now under consideration.
The evidence from several witnesses on the part of the defendant was very strong that plaintiff was fully instructed how to do the work, the reason for thus doing it, and the danger of an explosion if the pots were dumped before the contents were sufficiently “set.” Under this instruction, the jury may have found that this was true, and have based their exceedingly large verdict upon the failure of the defendant to further notify- the plaintiff of the “nature, force, and probable effect” of the explosion. It is not quite clear to me what a jury would understand
The question of instruction and warning has arisen more frequently in the employment of infants, where the employer is held to more explicit instructions and warnings than in the case of adults. 1 Shear. & R. Neg. § 46, note 1. The authorities are meager in determining what is a sufficient warning. Much must depend upon the circumstances of each case, in applying the rule. In Powers v. Sugar Co., 48 La. Ann. 483 (19 South. 455), plaintiff accidentally stepped into a ditch of hot water in the evening, and was severely scalded. Defendant’s manager testified that he told the plaintiff “to be careful; that there was a ditch along the side, and the floor was uneven.” It was held that the admonition was insufficient. The court said, “If an admonition of danger is relied on, it must be timely and explicit,” and held that the defendant should have informed him that the water in the ditch was hot. Where the negligence alleged was in permitting a plaintiff to pick up sodium and potassium and put them into water, without warning him of their dangerous and explosive nature when placed in contact
“I was suffering from pain then nearly as bad as at the time I got burned. I could not tell the pain I suffered, but it was about two months after that. I was suffering about two months after that very bad. I have had pain since the two months.”
He is not deprived of all ability to labor. Soon after leaving the hospital he worked for defendant several months, helping teamsters, and earned from $15 to $20 a month. Before he was hurt he earned $1.60 per day. At 4 per cent., the $15,000 would yield an annual income of $600, — $100 more than he could earn before he was injured. At 3 per cent., it would'yield $450, which is within $50 of what he could earn if he labored every working day in the year, including holidays. Counsel cite Retan v. Railway Co., 94 Mich. 146 (53 N. W. 1094), where a verdict' for $30,000 was sustained. That case was decided before the statute above mentioned was passed. Besides, there is no parallel between that case and this. In that case, by the loss of both feet, the plaintiff was a helpless cripple for life, and was deprived entirely of the power of locomotion. I cannot avoid the conclusion that the verdict is excessive. As the verdict should be set aside upon other grounds, and as the testimony upon another trial may be different, it is unnecessary to determine upon this record by how much we think the verdict should be reduced, or a new trial ordered. On the question of excessive verdicts, see Stand
Judgment should be reversed, and new trial ordered,
I am not able to agree with my Brother Grant that there was error in the instruction given. In Smith v. Car Works, 60 Mich. 501 (27 N. W. 662, 1 Am. St. Rep. 542), it was said that where extraordinary risks are or may be encountered, if known by the master, or should be known by him, the servant should be warned of them, their character and extent, so far as possible. I do not think the instruction which imposed upon the defendant the duty of explaining to plaintiff “the nature, force, and probable effect” of such an explosion as would be likely to occur from the contact of water with mixed copper and slag, fairly construed, goes beyond the doctrine of the Smith Case. It is a reflection upon the intelligence of the jury to assume that they would construe this language as imposing upon the defendant the duty of foretelling the precise result of any possible explosion. What the language fairly imports is that it was the duty of the defendant to warn the plaintiff that the explosion would be of such a nature and such force as would be likely to cause injury, and, so construed, the instruction is within the rule of the Smith Case.
I agree with my Brother Grant that we should not evade the responsibility of ordering a new trial where a substantial injustice is clearly shown. In my judgment, the verdict in this case is excessive, and a new trial should be awarded unless the plaintiff will remit from the verdict all in excess of $10,000.