118 Mich. 275 | Mich. | 1898
Lead Opinion
Plaintiff recovered a judgment against the defendant for the loss of one of his eyes. Defendant brings the case here by writ of error.
It is the claim of the defendant that there was contributory negligence on the part of the plaintiff. That'question was fully submitted to the jury, who found against the contention of defendant.
The important question' is, Does the testimony tend to show any negligence on the part of the defendant? The plaintiff is an intelligent workman, upwards of 30 years old. He had been a machinist 14 or 15 years. He worked for the defendant several years, operating a machine for boring iron. Not far from his machine a gang of men were engaged in riveting together parts of a bridge for an iron crane. The process is for one man to heat the rivets. Another places beneath the rivet a solid support, capped by a piece of steel, in which there is a cup to hold in place and preserve the under head of the rivet. Another man places on the upper end of the rivet a snap-hammer, which is a hammer with a cup on its face, designed to form the upper head of the rivet. While the rivet is hot, this snap-hammer is struck by two men. with sledges,
The case is very near the border line which separates those cases where a verdict should be directed from those where the case should be submitted to the jury. The difficulty does not grow out of the law itself, so much as out of the application of the law to a given case. It is now well settled the master owes to the servant the duty of using ordinary care and diligence in pfoviding for his use sound and safe materials, and such appliances as are reasonably calculated to insure his safety. • He is also bound to examine and inspect these things from time to time, and to use ordinary care and skill to discover and repair defects in them. 1 Shear. & R. Neg. § 194; 2 Thomp. Neg. 984; 14 Am. & Eng. Enc. Law, 894; 7 Am. & Eng. Enc. Law, 830; Holden v. Railroad Co., 129 Mass. 268; Cooley, Torts, 556; Johnson v. Spear, 76 Mich. 139 (15 Am. St. Rep. 298); Tangney v.
The plaintiff failed to establish a cause of action. The court should have directed a verdict in favor of defendant. Rawley v. Colliau, 90 Mich. 31; Kehoe v. Allen, 92 Mich. 464 (31 Am. St. Rep. 608); Miller v. Railroad Co., 21 App. Div. 45; Marsh v. Chickering, 101 N. Y. 396.
Judgment is reversed, and a new trial ordered.
Concurrence Opinion
(concurring). I concur in- the result reached by Mr. Justice Moore in this case upon the grounds stated by him, but I am of the opinion that the duty of periodical inspection does not extend to the small
We have decisions sustaining the doctrine that a master must provide safe appliances, and that' he must use reasonable diligence in keeping them in repair. In heavy or complicated machinery, and where the person called upon to use the appliance may not possess the skill to detect unfitness, or the opportunities to do so, the law may require diligence upon the part of the master; but where the appliance is a common tool, of which the man who uses it is necessarily well qualified to judge, and who when he uses it has an opportunity to know its condition, a distinction may be made, and the master may rely upon the servant to inform him of the defect, or not use the tool, 'if it is unsafe. This exception to the rule relied on in this case is recognized in Miller v. Railroad Co., 21 App. Div. 45, where it was held that the master was under no obligation to inspect a push-bar, used in moving cars,