Stapleton v. Furniture Exhibition Building Co.

209 Mich. 385 | Mich. | 1919

Lead Opinion

Kuhn, J.

(after stating the facts). This is not a case where the plaintiff is seeking to hold the defendant for a latent defect which existed when the machinery was installed. The theory upon which she seeks recovery is grounded upon the failure of the defendant to discover the defect, it being claimed that the defect might have been easily discovered if the elevator and its various essential parts had been properly inspected during the 18 years that they had been in use. v

The contention of the respondent is that the jury should not have been permitted to find that some sort' of an Inspection should have been made, which, according to custom, had never been deemed necessary and was not customary. Considerable fault is also found with various parts of the charge of the .court in submitting the question of negligence to the jury.

Mr. Jesse D. Stoddard, the secretary and treasurer of the Detroit Testing Laboratory and a chemist and metallurgist of considerable experience, was one of the witnesses sworn on behalf of the defendant. With reference to the necessity of inspection of metals which are subjected to heavy strains and which are used where human life would be endangered by their insufficiency he testified in part as follows:

“We know that metal varies over a wide field, in strength qualities. After all these precautions have been taken, in addition to that, in cases where metal occupies a place where human life is in danger or a large amount of property is in danger in the structure, I believe it is customary to inspect such metal and such structures periodically after they are in place to ascertain whether there are any visible signs of deterioration — there is such practice of inspection carried on.

“Q. Isn’t it'true that experience, such experience as you have observed in connection with the work that you are doing, has established that periodical inspections are desirable and necessary in order to detect apparent signs of deterioration of metals that are in actual use?

“Mr. Travis (for defendant): I object to that as incompetent, covering a field that might mean anything.

“The Court: No, he may answer that.

“Question read.

“A. It is true; apparent signs can be so detected and are so detected.

“Q. Do you know the practice that is followed with reference to inspections that are1 made of structural metals that are subjected to strains and stresses in the course of their use? Is there any custom or practice about that, that you know of?

“Mr. Travis: The same objection, your honor.

“The Court: He may answer that question.

“A. He asked me if I knew the practice that was followed.

“The Court: He asked the question whether there was any custom or practice.

“Q. Within your knowledge, of course.

“A. There is such a custom.

“Mr. Travis: I object to it as being too general and for that reason not admissible in this case, and move to strike it out.

“The Court: I think I will take it. You may answer it.

“A. I said there was such a custom and practice.”

The question really is whether or not any hard and fast rule can be laid down as to what ordinary negligence would be under circumstances of this kind. The fact that it would be difficult to make such an inspection and that it was necessary to block up the car and remove the bolt would be no answer if it was reasonably necessary to do this in order to protect human life and limb. The testimony showed that the cables on this elevator had been changed from time to time and that at such times it was necessary to block up the elevator. At these times, a removal of the bolt would have required but a few moments of extra time and relatively little labor. Tapping the bolt with a hammer after it had been removed from the sleeve, cleaning it and painting it, might have been all that was necessary to satisfy such requirements. The defendant had all the necessary opportunities and facilities for making the proper inspections and tests. But no effort was made for 18 years to determine whether the bolt was in such a condition as to carry the great strain which was put upon it. It seems to us, under all the circumstances in this case, as shown by the record, that it was one of those cases which was peculiarly within the province of the jury to determine whether or not the defendant took such precautions in the inspection of the elevator as a reasonably prudent person should have taken under like circumstances.

The claim of the defendant that it was not customary to remove such bolts in the past would be no excuse and would not bar the plaintiff’s right of action, but would be one of the factors which could be properly submitted to the jury on the question of whether or not the defendant exercised reasonable care

What is ordinary and what is reasonable care under all of the circumstances must be determined, in the last analysis, in the light of the experience of ordinary men of affairs. The jury heard all of the testimony and the claims of the parties and were enlightened by all of these facts; they heard testimony of the means and methods by which the draw-bolt might have been tested, the manner and method by which it might have been removed from its place in the elevator mechanism, the physical structure of the bolt itself, and ,the testimony of the defendant’s inspectors that they had never heard of such a bolt being removed and tested. They heard the testimony of witness Stoddard, above set forth, that material upon the strength of which the safety of human life depends should be occasionally inspected and tested.

There are a number of assignments based upon rulings with reference to the evidence. Considerable latitude was allowed plaintiff’s counsel in asking questions concerning the cause of the accident and, we think, properly so, as the elevator and all of the machinery connected therewith was entirely within the. care and custody of the defendant and, under the circumstances, the court was justified in being liberal in allowing searching inquiry concerning the cause of the death of the plaintiff’s decedent.

We have carefully examined these various assignments of error and we do not find that there was any prejudicial error committed. The crucial questions of negligence were carefully submitted to the jury with clear instructions as to the law pertaining thereto. No complaint is made of the size of the verdict, and, being unable to find any prejudicial error in the record, we are constrained to affirm the judgment.

Bird, C. J., and Sharpe, Moore, Steere, Brooke, Fellows, and Stone, JJ., concurred.

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Rehearing

On Rehearing.

Clark, J.

Counsel for defendant assert that the testimony of the witness Stoddard, quoted by Justice Kuhn, had been declared incompetent by the trial court and had been stricken out. The basis of the assertion is found in the record immediately following the testimony so quoted, and is a part of the further cross-examination of this witness for defendant:

“Q. To what particular line of structures does the practice to which you have just testified apply?

“A. To building materials largely, structural materials, materials entering into the production of vehicles such as automobiles, aeronautics, the production of aeroplanes, motors; in fact, the whole field of manufacturing industry is substantially covered today by specifications drawn by the American Society for testing materials, for the inspection of materials entering into the various uses.

“Mr. Travis: May my objection stand?

“The Court: I think I will strike out the answer. After hearing the answer, I am not sure that it is admissible. I will strike it out.

“Mr. Geib: It seems to me, your honor, it would be competent, at least, in so far as it applies to structural materials. He has testified that there was a custom he knew about. Now, I am asking him to what that custom relates, or applies, and he said, among other things, structural materials.

“Mr. Travis: If counsel desires to ask this witness if he knows whether or not there is any custom of inspecting bolts of this kind when used in this manner, I have no objection, if the witness knows, to his asking that.

“The Court: That is as far as I intended to have him go in the first statement.

“Mr. Geib: Your honor, we are not limited to that. That is getting back to. the proposition that I think was mentioned the other day, that a group of inspectors or a group, of owners or any one else engaged in a particular business cannot establish a rule of negligence or a diligence binding on a court or jury.

“The Court: I think you are right about that, but I do not know that it goes to this question. You can ask him about this business, whether there is any custom in such matters, keeping as. close to the elevator as you can.”

By the first ruling of the trial court above quoted, the answer to one question was stricken. The later observation of the court did not have the effect of striking out the testimony quoted by Justice Kuhn, nor was any motion made to strike such testimony, and it was not here urged that it was admitted erroneously. Defendant’s contentions upon rehearing are not sustained. We find no reason for disturbing the former conclusion.

The judgment is affirmed.

Moore, C. J., and Steere, Brooke, Fellows, Stone, Bird, and Sharpe, JJ., concurred.