Zimmerman v. Detroit Sulphite Fibre Co.

113 Mich. 1 | Mich. | 1897

Grant, J.

(after stating the facts). It is insisted on behalf of defendant that no negligence was shown, and that the court should have so instructed the jury. It is also urged that the danger, if any there was, was apparent to the plaintiff, and that, therefore, he assumed the risk. A third contention is that, if the plaintiff stood so near the belt as to be struck by it, this was his own negligence, since there was room for him to stand without touching it.

The case is not free from difficulty. The evident theory of the declaration is that he was struck by the belt while standing upon the platform, and that this caused him to slip; and it was urged on behalf of defendant that the case made by the proofs is not the one set out in the declaration. The court, by his instructions, eliminated from the consideration of the jury the slippery condition of the platform in consequence of grease and steam, holding that these were not elements of negligence. The sole ground of negligence submitted to them was the construction of the platform. Upon this point we are unable to say that there was no testimony tending to show negligence. It is true that several witnesses, who had long been familiar with this platform, and had used it constantly, testified that it consisted of two planks placed horizontally, and that the place was well lighted. Under this testimony, there was no negligence on the part of the defendant. On the contrary, there were two witnesses who testified that it consisted of a single plank, placed at an incline, and one support at a different angle from the other. If this was so, it could not be called a safe place. We must therefore hold that there was such a conflict of evidence as will not justify us in reversing the judgment on the ground that there was no evidence of negligence.

The plaintiff’s own testimony, upon which alone he can recover, leaves the cause of the accident doubtful. It is difficult to determine whether the belt struck him first, or whether he slipped, and fell against the belt. It is equally difficult to determine upon which theory the jury based their verdict. If'it was upon the theory that the belt struck him first, the verdict cannot be sustained, because there was no evidence to show that the platform was too near the belt, or that there was negligence in so constructing it. It was necessary to oil the shaft. The oiler must in some way be able to reach the part to be oiled. No suggestion is made that any better or safer instrumentality than the platform could have been employed. There is no tangible evidence that it was so dark that the plaintiff could not see the belt, or that the shaft could not-have been oiled with safety while standing upon the platform. It had been thus safely done for two years. This element of negligence should therefore have been eliminated from the consideration of the jury. It is quite probable that the jury made this the basis of their verdict, because it is alleged in the declaration as negligence, and also it is there alleged that the play of the moving belt struck him, and caused him to slip upon the slippery and greasy platform. If the platform was properly constructed, and plaintiff slipped in consequence of the oil or water upon it, there could have been no recovery. He had reached the platform in safety, and stood engaged in the act of oiling when he fell. Unless he fell by reason of the incline in the plank, or the fact that the supports were uneven, in consequence of which the plank tipped, he was not entitled to recover. These were the sole conditions.that made the place dangerous.

At the conclusion of the evidence, counsel for defendant requested that the following special questions should be submitted to the jury:

“If the platform was not on a level, by diligence could the plaintiff see it ?

“If it was not securely fastened, would lie know it when he got on it ?

“Was the plaintiff hurt because he slipped off the platform?

“Was he hurt because he was knocked off the platform by the belt?”

At the conclusion of the charge, these questions were fully explained to the jury'by the court. Then, after further discussion by the counsel, the court, in his own handwriting, added to the third and fourth questions the words, “and without other cause.” The jury returned into court with a general verdict for the plaintiff, and the first three questions answered “No,” and the last “Yes.” The following colloquy then took place:

“Mr. Lucking: If the court please, my query is with regard to the fourth question. You instructed the jury in one part of the charge that the plaintiff could not recover unless the platform was at fault.

‘ ‘Mr. Paine: I object to any discussion in the presence of the jury.

“Mr. Lucking: I ask the court to ask the jury with regard to the fourth question.

“The Court: I decline to ask the jury anything with reference to that. You may poll the jury or not, just as you see fit.

“Mr. Lucking: It is all in the discretion of the court to determine whether they have thoroughly understood the fourth question.

“Mr. Paine: I object to the discussion and to the remarks of counsel.

“Mr. Lucking: We do not want any claptrap or any catch by anybody.

“The Court: I never had such a contingency arise before me exactly.

“Mr. Paine: I wish to make a remark, and have it taken down, that the jury are present during the counsel’s remarks to the court.

“Mr. Lucking: I ask your honor to poll the jury on the fourth question.

“The Court: The court will do nothing of the kind. You may ask that the jury be polled as to any part of the verdict you see fit.

“Mr. Lucking: As to the fourth question, I want your honor to satisfy yourself that there has been no misunderstanding on the part of the jury. Now, the court does not sit here to aid counsel in trapping one side or the other. The court wants to know that the jury thoroughly Understand their verdict.

‘ ‘Mr. Paine: I wish it to appear that the counsel stands with the special questions answered in his hand, making these remarks to the judge.

“Mr. Lucking: I ask your honor to know positively that the jury have understood this in the same sense that the court does.

‘ ‘ The Court: You may poll the jury if you desire to poll, them. I will say nothing to the jury other than what I have said, — other than the charge.

“Mr. Paine: I object to the court’s ruling, after the remarks of the counsel in the presence of the jury, that he may poll the jury.

“Mr. Lucking: I ask the court to ask the jurors in connection with that question 4, — to explain question 4, and ask them if that is what they meant by it.

“The Court: That I decline to do. Gentlemen of the jury, you may be discharged from further consideration of the case.

“Mr. Lucking: I have asked that they be polled with reference to question 4, and also the other questions.

“The Court: The poll may be put, the jury being still here. You may poll the jury in that respect.”

Upon the poll of the jury, eight answered “Yes” after the question was put to them as amended by the court and as actually submitted. The ninth juror said: “I don’t think that was read as you have read it there. It is in another handwriting. I did not observe the other words.” Question: “Then it is not your verdict?” Anstoer: “No, sir.” The jury were then sent back to the jury room, and after a while returned, answering the fourth question “No.”

It seems impossible to believe that the jurors did not understand the question. The last words of the judge were upon this subject, and were clear and explicit. They had no difficulty in understanding the third question, with the words added. The fourth'question was in exact accord with the allegations and theory of the declaration. In view of the character of the testimony and the claim in the declaration, we are inclined to hold that it was error to permit the discussion in the presence of the jury, .and then to recall them after being discharged, and send them back to reconsider it. Brassel v. Railway Co., 101 Mich. 11.

For this error the judgment must be reversed, and a new trial ordered.

Other errors are assigned, but, as they are not likely to arise on a new trial, we need not discuss them.

The other Justices concurred.