Smith v. Mt. Clemens Sugar Co.
179 Mich. 97
Mich.
1914
Check Treatment
Brooke, J.

(after stating the facts). It is first argued by counsel for appellant that plaintiff should be held guilty of such contributory negligence as would debar him from recovery: First, in meddling with the conveyor at all. This view is predicated *102upon the assumption that it was no part of plaintiff’s duty to regulate the flow of water through the conveyor. Both Anderson (who had the day shift) and plaintiff testified that they attended to the water as the conditions in the conveyor made it necessary; that several times in each shift a change was made by one or the other of them; and that this was done by Anderson in obedience to instructions from the superintendent and by plaintiff in accordance with Anderson’s instructions. Defendant denied ever having given such orders. This conflicting testimony raised an issue as to the fact which was submitted to the jury.

It is further claimed that plaintiff should have shut off the power before ascending the ladder, and, if unable to work the clutch, should have reported the facts to his superior; and, further, that he was negligent in using a ladder which had been broken and mended. The record shows, according to plaintiff’s testimony, that plaintiff had used the same ladder for the same purpose several times each night during the preceding two months, and that (the clutch being frequently out of order) it was necessary to adjust the valve while the gears were in motion. We are of opinion that it should not be said as a matter of law that plaintiff was guilty of contributory negligence. It is true that the exposed gears were in plain view, but they were about three feet to the left of the ladder. Whether a reasonably prudent man would have acted as plaintiff did was a question for the jury which was submitted to them under appropriate instructions.

It is next urged that defendant’s motion for a directed verdict should have been granted upon the ground that under the facts in this case the statute relied upon cannot apply, and therefore that no negligence on the part of defendant was shown. It is said that the gears in question, situated as they were some 9 feet from the floor, were safeguarded by their posi*103tion. If, as the evidence introduced by plaintiff seems to show, it became necessary for one or other of the employees of defendant many times each day to mount a ladder and attend to a portion of the work within three feet of the exposed gearing, we think it can scarcely be said, as a matter of law, that the “position” was an adequate safeguard. Indeed, it may well be doubted whether an exposed gearing can be placed in any position which as a matter of law would be considered as an equivalent to the statutory safeguard. Tabinski v. Manufacturing Co., 168 Mich. 392 (134 N. W. 653). But at all events the charge upon the subject quoted supra was as favorable to defendant as it was entitled to demand.

We have examined the cases from New York cited and relied upon by defendant; but, in view of our own decisions under this statute, we must decline to follow them.

It is claimed that the breaking of the ladder was the proximate cause of plaintiff’s injury, and as the court below held that plaintiff used it, in the absence of negligence on the part of defendant, he should not have been permitted to recover. This claim is untenable. See Selleck v. Railway Co., 93 Mich. 375 (53 N. W. 556, 18 L. R. A. 154); Swick v. Cement Co., 147 Mich. 454 (111 N. W. 110).

Were the damages ($3,800) excessive? Upon this point defendant relies upon the case of Detzur v. Brewing Co., 119 Mich. 282 (77 N. W. 948, 44 L. R. A. 500), where a judgment for $10,000 was reversed unless the sum of $6,500 was remitted. Plaintiff has an expectation of life of more than 12 years. He has lost a portion of his arm. He is unfitted for all kinds of manual labor, by which alone he has heretofore maintained himself. He testified to continued pain and suffering. Added to these facts, it should be borne in mind that, for the balance of his life plaintiff must suffer from the humiliation of going about *104among his fellows in a mutilated condition. While the judgment is a liberal one, we do not think it should be called excessive within the legal meaning of that term.

Errors are assigned upon the admission and exclusion of certain testimony. These have been examined and have been found to be without merit.

The judgment is affirmed.

McAlvay,- C. J., and Stone, Ostrander, Bird, Moore, and Steere, JJ., concurred. Kuhn, J., did not sit.