193 Mich. 200 | Mich. | 1916
The principal contention of appellant is that there was introduced by plaintiff no testi
The point cannot be discussed without reference to Act No. 10, Extra Session 1912, which as to this defendant, which had not elected to be governed by the act, and in this case forbids the defenses: First, that the employee was negligent, unless wilfully so; second—
“that the employee had assumed the risks inherent in or-incidental to, or arising out of his employment, or*203 arising from the failure of the employer to provide and maintain safe premises and suitable appliances.” Act No. 10, Extra Session 1912, pt. 1, § 1, subd. c (2 Comp. Laws 1915, § 5423).
Counsel for appellant assume, in the argument made, that the mule, in the defendant’s business, was an appliance, or instrumentality, and that it was an unsafe and unsuitable one. They cannot, I think, resist the conclusion that it was negligence to furnish such an instrumentality, except by using, in favor of defendant, the fact that plaintiff’s intestate knew that the instrumentality was unsafe. The principle deduced and stated in Ragon v. Railway Co., 97 Mich. 265, 273 (56 N. W. 612, 614, 37 Am. St. Rep. 336), is “that obvious imperfections in methods or machinery, existing at the time of the employment, cannot be made the basis of a liability in favor of an employee who suffers an injury in the course of his employment, for the reason that the employer has a right to have and use imperfect methods and tools, and to ask others to enter his employ to aid him in such use, and that in so doing he does not undertake to insure the employee” — is one an element of which is an acceptance of whatever risk there is by the employee. In McGinnis v. Bridge Co., 49 Mich. 466, 473 (13 N. W. 819, 821), no different principle was stated in saying that:
“When it appears the employee is aware, as the plaintiff was, of the risks to which he exposes himself in the service, and consents to encounter them, his employment subject to the risks cannot be treated as a breach of duty.”
It is true that “the three principles — negligence, contributory negligence, and assumed risk — are consistent,” but not identical. Bradburn v. Railroad Co., 134 Mich. 575 (96 N. W. 929). But to hold that conduct which is not negligent because the employee assumes or consents, impliedly or actually, to share a
It is said the cause of death is purely conjectural. There was, however, testimony supporting the conclusion that the cause of death was that alleged, namely, a kick by a vicious mule.
The principal issue of fact was whether the mule was vicious. With this went along another issue, namely, whether defendant’s servant, or servants, knew of the alleged vicious propensities of the animal, of his propensity to kick, that he was a kicking mule. Witnesses said that the mule had a bad eye — a wicked look in his eye. One witness said he was afraid of the animal, but he gave as a reason for fear that the mule kicked at him, and further stated that he had refused to “hook” him up. Another witness testified that he could tell by the mule’s looks that he was not a safe animal. Objections to the testimony referred to were made, and exceptions to the rulings admitting it were taken. I have regarded it as matter of common knowledge, at least among those accustomed to driving and handling' horses and mules, that vicious propensities, as to bite and kick, were likely to be manifested in the general demeanor of the animals. The eyes and various movements which they make convey the impression, not always entirely reliable, that they are gentle and can be handled, or otherwise. A buyer, or one charged with handling animals, would judge disposition, in part at least, by appearance and movements, and act accordingly. The testimony objected to furnished to the jury no means of judgment other than those which ought to be and are employed in such cases.
The assignment of error based upon an exception to alleged improper argument of counsel for plaintiff may be passed without discussion. It is doubtful if the argument should be classed as improper, and, in any event, the court advised the jury, at once, that it was improper, and 'that counsel should not have made it.
In a single respect the charge of the court is criticised in the brief. The jury were told that:
*206 “There has appeared here in the trial of this case his father and his mother, fine, estimable appearing people, naturally appealing to our sympathy. The unfortunate accident and all that appeals to our sympathy; you desire to render assistance if we might, to any one that may have lost a son. That sympathy wells up in the ■ hearts of every human person. I would not have you cast it aside. That would be asking you to do more than you can do, but I want you to govern it, govern it by your oaths, by your judgment, by your reason, by the charge of the court.” ■
The criticism is that its effect was “to instruct the jury to start out with their sympathies as a basis and to render assistance to the bereaved ‘if we might,’ ” and it is claimed that sympathy is reflected in the verdict of the jury. The trial judge may have been impressed that in the circumstances it was advisable to remind the jury of their duty and their oaths, contrasting duty and sympathy, and it is quite fair, I think, to say that the language used was perhaps as effective for this purpose as could have been employed.
The case is apparently a hard one, for defendant if the judgment stands, for plaintiff if it does not stand. As the law is, no reversible error appearing, the judgment must be affirmed, with costs to appellee.