184 Mich. 437 | Mich. | 1915
It is the claim of the plaintiff that while he was employed by defendant as a trammer, in. March, 1912, a quantity of earth and ore fell upon him, some of it entering into and irritating his eyes. As a result they became infected; the vision of one of them is greatly impaired; and a chronic inflammation of the eyelids (trachoma) exists. He sued for damages for his alleged injuries, and when, upon the trial of his case, the plaintiff had rested, the court,
“The proof offered by the plaintiff in this case clearly brings the case within the law as laid down by the Supreme Court in the case of Petaja v. Aurora Iron Mining Co. In that case, as in this, the plaintiff was a .trammer in the employ of the defendant company. The case is in volume 106 of the Michigan Reports, at page 463. At page 466 [64 N. W. at page 335] the court says: ‘This ore was loaded upon cars and removed by common laborers, called “trammers.” ’ The Supreme Court goes on to say that above them was the shift boss, just as in this case. It appears that in the Petaja Case the accident happened in a very similar manner to the accident in this case. There had been ore blasted out so that when it would be removed there would be room for another set of timbers. The trammers were at work taking out that ore; it being the intention to put up a set of timbers just as soon as the ore was taken out. While the trammers were removing that ore- they thought the place looked dangerous, and they called upon the shift boss for an inspection. On page 467 of 106 Mich, [on page 335 of 64 N. W.], it says: ‘Some indications of danger were noticed by the trammers, who called, the attention of the shift boss to it, but, after looking at it, he told them it was all right, and to quit “monkeying,” and resume work, which they did. The accident occurred about 30 minutes later.’
“That corresponds identically with the situation in this case. In this case the plaintiff, while at work tramming out the ore, thought the place looked somewhat dangerous, and he called upon the shift boss for an inspection. The shift boss looked at the place and told him it was all right, and to resume work. I am unable to see any distinction between the Petaja Case and the present case. I shall therefore direct a verdict in favor of the defendant, under that decision.”
The court was not in error in finding that the facts in the Petaja Case and in the case at bar, in respect to the conditions from which injury arose, are substantially the same; and, while counsel for the appel
There is no testimony tending to prove' that the defendant was guilty of a breach of the delegable duty to maintain the ordinary conditions making for the safety of employees in such places; guilty of a breach of the duty not to be reckless. See Lake Superior Iron Co. v. Erickson, 39 Mich. 492 (33 Am. Rep. 423). If the contributory negligence of plaintiff was a controlling issue, the alleged assurances of the shift boss that the place was safe might be important. There is no evidence of defendant’s negligence.
The judgment is affirmed.
