Hennig v. Globe Foundry Co.

Grant, J. (after stating the facts). 1. The first error assigned is the refusal of the court to give the following request: “If you find from the evidence in this case that the car and cable were in reasonably safe and proper condition for use, and that it was the negligence of the engineer, Marshall, in not seeing that the cable was attached to the car before he shoved it down the incline, plaintiff cannot recover.” Nowhere in his instructions did the learned circuit judge refer to the theory of the defendant. He did charge that the engineer was a fellow-servant, and that for his negligence there could be no recovery. It was, however, of importance that the judge should state to the jury the theory of the defendant, especially in view of the fact that he fully stated the claim of the plaintiff. Poole v. Railway Co., 100 Mich. 388, where authorities are cited. [619] 2. The following requests were preferred on behalf of the defendant, and refused: “There is no evidence in this case that the defendant had any reason to suppose the cable was not in reasonably safe condition for the use it was intended, up to the time of the accident. The verdict of the jury must therefore be for the defendant. “There is no evidence that the defendant had or is chargeable with notice of the defect in the cable claimed by plaintiff to have caused the accident. “There is no evidence that the cable was not reasonably safe for the work it was intended, and the jury cannot be permitted to draw any inference of defect or negligence in the defendant from the pulling out of the hook, alone. “The pulling out of the hook in the manner claimed by the plaintiff is not of itself sufficient to charge the defendant with negligence in this case. “There is no evidence that the defendant had any notice of a defect in the cable, or that it was not in as good and safe condition as it was the day before, when the evidence shows it pulled the car up the incline, heavily laden, without breaking; and the plaintiff is not entitled to recover.” In view of these requests, and the instruction of the court, it is important to fully state the testimony which it is claimed tends to sustain the charge of negligence. It is not claimed that the cable or hook was faulty in construction, or otherwise, or that they had been in use for such length of time as to require examination or replacement. Nor is there any evidence that they had become so worn that an inspection should have condemned them as unfit for use. Plaintiff, who hooked and unhooked them many times every day, does not testify that he saw any signs of wearing or weakness or unfitness for use. Thirty loads of iron and coal had been drawn up the day before, the last weighing 800 pounds. Plaintiff, on his direct examination, testified, “The rope broke, and they did not get on the brake in time, and the car came down fast.” This is all he said about the cause of the accident. On his re-direct and re-cross examination he testified that the [620] loop on the cable was the one that broke, and that the engineer showed him the broken part in the engine room, where he was taken after the accident. He finally testified that he did not see the break himself, but that the engineer told him. All his testimony upon this point was therefore stricken out as hearsay. The only other testimony upon this point was that of Charles Licht, who was employed in the cupola at the time of the accident. We give the following excerpts from his testimony: “I went up on top the cupola, where the rope was. I saw the end of the rope. It is a -wire rope. “Q. Just tell the jury how the wire rope was drawn out,—how it pulled out. “Mr. Keena: There is no evidence that it pulled out. It is leading. “The Court: State how it appeared. “Q. Tell how it looked,—how it appeared. “A. How the rope broke ? “Q. How the x’ope broke. “Mr. Keena: There is no evidence that the rope broke. “A. The carriage came down,—the bucket that they hoist pig iron on. They shoved the carriage down, and the rope stayed upstairs. ‘ Mr. Keena: Who shoved the carriage down ? “A. I didn’t see the man shove it down. “Q. (By Mr. Moore). What did you see on the loop? What did the end of the rope look like ? “A. It was wore out. It was not wore out, but it was pulled out. ‘ ‘ Q. And the ring ? “A. And the ring stayed in the carriage. “Q. It was worn out— “Mr. Keena: Hold on. There are other ways of asking questions of witnesses. “The Court: Ask him what he saw. “Q. How much of it was broken? What part was broken of the end of the wire rope? You say it pulled out. How did it pull out ? (Objected to.) “The Court: That is improper. “Q. You say it pulled out. Will you just explain how it pulled out ? “A. It pulled out. It was not wore, I guess, but it pulled out. It was wore through. Not woi’e through, but it broke. * * * • [621] “Q. What was the appearance of the wire rope, as to being rusty or bright? “A. It was a little rusty, that it wore through. It didn’t wear through, but it pulled out.” The end of the cable was near the top of the incline. On cross-examination, counsel for the defendant attempted to elicit from the witness whether a portion of the end of the cable forming the loop separated from the cable, but failed in doing so. The principal fact testified to by him was that the loop was pulled out. The above comprises all the testimony from which negligence can be inferred. It is unnecessary to cite authorities to show that this accident, even if the rope broke, was not of itself sufficient evidence of negligence. The duty of the defendant towards its employés was fully performed when it had provided a cable reasonably safe for the purpose for which it was intended. The law imposed no duty upon it to provide a cable which would stand the unusual strain placed upon it through the negligence of one of its employés, who was a fellow-servant with the plaintiff. If the proximate cause of the accident was the negligence of the engineer in unhooking the cable from the car, or in sending it down the incline with a slack cable and an unset brake, the plaintiff cannot recover. There is no testimony in the case to show the weight of this car, or the strength of cable required to withstand the force upon it caused by a sudden drop of the car down the incline. The cable may have been of ample strength .to pull loaded cars up and to let empty cars down in the usual manner. There is no evidence that it was not sufficient for that purpose. In fact, it had proved sufficient for that purpose. The sudden descent of the car thi’ough the negligence of an employé was an accident which the defendant could not foresee, and against which it was not required to provide. There is no evidence that the cable was cracked or rotten. The fact that witness Licht saw a “little rust” upon it is no evidence of an unsafe condition. Rust will form on iron in a single night. [622] The record is barren of any evidence tending to show that a cable entirely safe for ordinary use would not pull out or break by the sudden strain to which it was subjected by the negligence of the engineer. There is also no evidence that the “pressure or jerk” was “slight,” as alleged in the declaration. Piette v. Brewing Co., 91 Mich. 609. It follows that, under this record, the court should have given the above requests. Judgment reversed and new trial ordered. The other Justices concurred.