Ouellette v. Michigan Alkali Co.

Moore, J. The plaintiff recovered a judgment for personal injuries received by him while in the employ of defendant. The defendant has brought the case here by writ of error. The accompanying sketch will aid in understanding the situation. When the accident occurred, the plaintiff was standing upon a crosspiece one inch by eight or ten inches wide, at a point where the lower star is. He was holding on at a point where the upper star is, with one of his hands, to a board one inch by six inches wide. His work required him to go to all parts of the derrick, supporting himself by standing upon and holding to any of the crosspieces in the derrick where he happened to be needed. His statement of the accident is as follows: “March 19th, the day I was hurt, was a sort of cloudy day. I was sent up the derrick, and I was getting hold of the block, the single block, to pull it out of the derrick, —that is in the derrick, — and send it down to the ground to pull up some pipe in through the slot; and while I was holding on the derrick and reaching for my hook, with the other hand reaching for my hook, that board came away that I had hold Of, causing me to fall to the roof of this building. From there I slid down and struck the ground. I fell from the roof of the building to the ground. I should judge it was about 15 feet from the place I fell to the roof of the building, and about 10 feet from the roof to the ground.” He also says the board which broke looked as if it was old,- — -as if it was rotten. His testimony, also, was that he had no knowledge of this defect until the accident happened. [486] [[Image here]] [487] On the trial a different version from that of the plaintiff as to how the accident occurred was given on the part of defendant by Mr. Gettleman, who said: “At the time of the accident, I was running the engine myself. Ouellette went up the ladder until he got to the roof. Then he got onto the block, — gives himself a swing, so that, in getting up, he could land himself near the slot. He went from the roof onto the pulley block. The pulley was being raised into the air, going up slowly, and he went up with the pulley. He went up until his hands .were about the top of the slot. He was swinging himself at the same time, so that he could take hold of that brace, and carry that or swing the block out through the slot and down to the ground. In swinging, he miscalculated his distance, and in grabbing for this girth he did not get it. He got below, and got hold of this brace, and pulled it off, and came down, — came down onto the roof, and onto the ground. When he came upon the braces, he came with a drop of about nine feet before he struck it, and the brace broke off, and then he fell to the roof.” In his charge to the jury the circuit judge told them, if they believed Mr. Gettleman’s version of the transaction, plaintiff could not recover. He also told them if plaintiff, in going up and down the derrick, had seen the condition of the board, and knew or ought to have known of the risk he assumed, then he could not recover. He also charged the jury as follows: “While the derrick in its inception was unquestionably fit and proper for work and for its employés, it may have become, by reason of the elements or by reason of something of that nature, unfit for the purpose and the safety of the employés. Now, you have heard the testimony in this case. You have heard the testimony of the plaintiff, who says he climbed up the ladder, and, from climbing up the ladder, he then went around to the slot, where he was to operate and put ijhe block through the slot to take a pipe into the derrick itself. You have heard his testimony as to his taking hold of one of these crosspieces, — I don’t know the technical term for them, — and that he took hold of that crosspiece, and, leaning out to reach for the rope, that the crosspiece came away, and so that he himself was thrown down to the roof of the shanty in the bottom of [488] the derrick, and from thence fell to the ground. Now, from that testimony, gentlemen of the jury, I think you may find that the company has not exercised that reasonable diligence that a company should exercise in the supervision of its structure, and that in their failure to discover a defect in the board you may find that they have been negligent, and that through this negligence, without fault on the part of the plaintiff, he received the injury in question.” It is said this was error, and that a verdict should have been directed for defendant. The record discloses the derrick was put up in 1896. It does not show that from then until the time of the accident any inspection was made of it for the purpose of determining whether the braces or other pieces of timber had become rotten and decayed, so as to make the structure unsafe for the employ és whose duties required them to climb about the derrick. In Johnson v. Spear, 76 Mich. 139 (42 N. W. 1092, 15 Am. St. Rep. 298), it is said: ' “As between the employer and his employes, it is the duty of the master to furnish suitable machinery, and see that it is kept in repair, and he is bound to exercise reasonable care to prevent accidents; which care necessarily has relation to the parties, the business in which they are engaged, the wear and tear upon the machinery, and the varying exigencies which require vigilance and attention, conforming in amount and degree to the circumstances of each particular case. “It is not necessary, in order to recover for injuries resulting from defective machinery, that the master had actual knowledge of such defects, but it is enough to show such facts and circumstances to exist that, if he had exercised reasonable care and diligence, he would have ascertained its true condition by examination and inspection.” See, also, same case in 82 Mich. 453 (46 N. W. 733); Van Dusen v. Letellier, 78 Mich. 492 (44 N. W. 572), Morton v. Railroad Co., 81 Mich. 423 (46 N. W. 111); Tangney v. J B. Wilson & Co., 87 Mich. 453 (49 N. W. 666); Ashman v. Railroad Co., 90 Mich. 567 (51 N. W. 645). [489] Since writing the foregoing I have been handed the opinion of Justice Grant. I do not think the testimony warrants the inferences he draws from it. In the record the testimony appears in the narrative form, and not by questions and answers. I think it fairly appears from the testimony of the plaintiff that, when the accident occurred, the board was rotten and defective. Unless this court is to undertake to pass upon the credibility of witnesses, an issue of fact was raised between the plaintiff and the witnesses for the defendant, which should be settled by the jury, and not by this court. The record also shows this derrick, like all derricks made for the same purpose, was a comparatively frail structure, without any 'cover over it, exposed to the winds and rains, and subjected to the strain incident to the use of such a structure. -Under such circumstances, unless the repeated decisions of this court are to be overruled, I do not think it can be said, as a matter of law, the time had not yet come for an inspection. Indeed, if the version given by the plaintiff is true, it is apparent that an inspection ought to have been made, making it clearly a case for the jury. I do not see how a case could more nearly come within the doctrine an-, nounced in Johnson v. Spear, supra, and the cases there cited, than is this case. The trial judge carefully guarded the interests of the defendant, and I think the judgment should be affirmed. Hooker, O. J., and Montgomery, J., concurred with Moore, J