160 Mich. 270 | Mich. | 1910
(after stating the facts). The sole question for our determination in this case is whether or not the defendant owed to plaintiff’s decedent the duty of inspection. The record shows that the torpedoes failed to explode. It is absolutely silent as to the cause of that failure. The president of the company which manufactured them testified:
“We purchase the tin from which the shells of the torpedoes are made from the American Tin Company, which practically controls the market. We buy the best tin we can. It is possible that there might be some little defect in the tin that could not be discovered by the eye. * * * I am only giving a possibility, the only way I could conceive of a thing happening. I have never known of a case where this did happen, but it is about the only way that I know of that could happen to bring about this result. * * * Manufactured tin is not always perfect. There are at times little flaws in it, and the coating wearing off the top may leave a small hole in the case which is almost impossible to detect. Moisture or oil may soak through and destroy the contents. * * * We japan all our goods ourselves. I have known of millions of torpedoes, manufactured by our company, and they have always exploded properly. To my knowledge, they have never failed. I think our composition and manufacture of them is as perfect as human agency can produce. * * * We have furnished torpedoes to defendant for 10 or 15 years prior to 1905. Our long experience has brought about every possible safeguard in the manufacture of these goods. Every torpedo is made by hand, and filled by hand. They go through a process, and it is almost impossible to have any defects in a torpedo. * * * It would be dangerous for one unfamiliar with their manufacture to inspect a torpedo by trying to separate it. The ordinary way of inspection is to put them on the road, and try them out. It is not safe to strike one with a hammer, or anything of the kind. That has been done in some cases with disastrous results. They are prepared and sold by us, for immediate use, to the various railroads, and there is nothing for the railroad company to do after we have prepared them, except to take care of them and use them. * * * A chemical change will not take place through age which will prevent them exploding.”
Under these circumstances, we are asked to say that it was proper to permit the jury to determine “whether the defendant used ordinary care and skill to discover the defects in these torpedoes, if there were any.” We are unable to agree with this contention. Even assuming that the torpedoes in question were properly placed, as testified to by Taylor, and that they failed to explode, there is still no evidence in the record tending to show the cause of such failure. The jury might surmise that the tin casing had become rusted, or was originally defective, and, further that an inspection by the eye might possibly have discovered such defect. No evidence of either fact was offered, and the conclusion of the jury to that effect would be based upon conjecture only. Touching the necessity for inspection by defendant, if inspection in the ordinary acceptation of that term were possible, we find that defendant had no knowledge or notice of any defects in the torpedoes or any information, which would impose upon it a duty of inspection, never before undertaken. Its experience, covering a period of 10 or 15 years, in the use of these appliances, was such as to indicate that, when properly placed, they invariably exploded. The experience of the manufacturer but adds weight to that of the defendant. The mere fact that there is a bare possibility that the casing of one torpedo out of many thousands may be constructed of defective tin, thus permitting the tin to rust through and admit water and oil, if brought in contact therewith, is not sufficient to warrant a finding that the defendant was negligent in failing to so inspect as to discover the fault. Siegel v. Heating Co., 143 Mich.
Defendant owed to plaintiff’s decedent the duty of furnishing safe appliances. This duty does not amount to an insurance to the employe that the appliances so furnished shall be absolutely perfect. Having used reasonable care in the selection of the article, and such vigilance in its inspection as is consistent with the character of the article, and with good railroading, the defendant has discharged that duty, and a jury may not be permitted to speculate in such case. Fuller v. Railroad Co., 141 Mich. 66 (104 N. W. 414); Marquette, etc., R. Co. v. Kirkwood, 45 Mich. 51 (7 N. W. 209, 40 Am. Rep. 453); Smith v. Hockenberry, 138 Mich. 129 (101 N. W. 207). The mere fact that an accident has occurred resulting in the injury of an employé raises no presumption of negligence on the part of the master. Toomey v. Steel Works, 89 Mich. 249 (50 N. W. 850); Quincy Mining Co. v. Kitts, 42 Mich. 34 (3 N. W. 240); Robinson v. Wright & Co., 94 Mich. 283 (53 N. W. 938).
The judgment is reversed, and a new trial ordered.
