Sargee v. Clark Can Co.

Grant, J. (after stating the facts). No fault is found with the character or structure of the machine. These machines are in use and have been for many years, both in this country and in others. No claim is made that the defendant did not perform its full duty towards. [513] its employes in providing a proper and safe machine. It had been in operation several years, and had always worked satisfactorily, except in the two instances referred to in the testimony of plaintiff and Lavesque. No defect or broken or worn machinery is pointed out. No failure to inspect is shown. The sole claim of the plaintiff is that for some reason the machine failed to work properly on the occasion of the accident, and on two other occasions, and therefore there was evidence for the jury to find that there was some negligent act on the part of the defendant which caused the accident. But what was such act? Neither plaintiff nor his counsel inform us. The court in his charge did not inform the jury of the specific acts of negligence claimed. There is no evidence to point out any such act. He who alleges negligence must prove it. He must prove either facts or circumstances from which the jury can point to the specific act of negligence which caused the injury. There are two reasonable theories upon which to account for this accident: (1) That plaintiff, a boy 16 years old, unconsciously or carelessly pressed the lever with his foot when he should not; and (2) that the machine was running properly and safely, but that he failed to remove his hand in time to avoid his fingers being struck by the die. If neither of these be true, then the cause of the accident rests in mere speculation. “When a servant demands from his master compensation for an injury received in his service, it is necessary that he trace some distinct fault to the master himself. The mere fact of such injury is no evidence of such fault.” The mere breaking of a piece of timber, in consequence of which one fell, was not evidence of negligence. Quincy Mining Co. v. Kitts, 42 Mich. 34 (3 N. W. 240). The failure of a machine to stop by a release of the lever through which its movement is controlled is not. evidence of negligence, where it worked satisfactorily before, Redmond v. Lumber Co., 96 Mich. 545 (55 N. W. 1004). [514] The sudden giving way of an elevator is not evidence of negligence. Robinson v. Charles Wright & Co., 94 Mich. 283 (53 N. W. 938). The sudden and unusual parting of a Miller coupler, by which a train was cut in two, will not sustain a finding of negligence. Tuttle v. Railroad Co., 48 Iowa, 236. This case is not distinguishable from the above, and is ruled by them. The court should have directed a verdict for the defendant. Judgment reversed, and new trial ordered. Hooker, Moore, and Long, JJ., concurred with Grant, J.