Dompier v. Lewis

Montgomery, J. This is an action for negligent injury. The plaintiff, at the time of receiving the injuries in question, was 17 years of age, and was employed in the defendant’s machine shop as a helper to a mechanic. "While so employed he picked up a hammer in use by one Mr. Smith, under whom he was working, and undertook to pound down a seam in a piece of galvanized iron piping. A chip from the hammer flew, struck him in one of his eyes,, and resulted in the loss of the sight of the eye. The plaintiff testified that he had never used this hammer before, and that he was not acquainted with, and had no knowledge of, the temper of tools. The testimony shows that the hammer belonged to Mr. Smith; that it was purchased by him of a reputable firm; and the testimony was in conflict as to whether the hammer had previously chipped, or whether the face was smooth at the time plaintiff undertook to use it. Smith testified that he had no recollection of instructing the plaintiff to use the hammer; that it was not his practice to dircet a helper to do anything of that bind. Under the instructions given by the circuit judge, hereinafter referred to, the jury rendered a verdict for the defendant. The plaintiff brings error. Error is assigned upon the refusal of the court to permit the following question, put to the plaintiff: “ State what Mr. Smith said to you about this hammer or about the work.” By the previous course of the examination, it is made to appear that this question related to the time immediately after the plaintiff received his injury, and it is contended that this was a part of the res gestee. We think there was no error in excluding this testimony. The injury had already occurred. It became a matter of narration, and was not even narration of the incident, but of the cause which led to the incident. We think the question was within the ruling of this court in Andrews v. Mining Co., 114 Mich. 375 (72 N. W. 242); Michigan Cent. R. Co. v. Coleman, 28 Mich. 440. Error is also assigned upon the exclusion of a question put to the witness Smith, who was plaintiff’s own witness, [146] which, it is said, was put for the purpose of refreshing his recollection. But the question was more in the nature of a cross-examination of the plaintiff’s own witness as to statements made out of court, and the occasion for such an inquiry is not made manifest by the record. Error is also assigned upon a so-called hypothetical question, said to have been calculated to bring out the time the hammer had been in the. process of chipping. It is so manifest that this is a matter of opinion that we do not pause to discuss it. The circuit judge submitted the case to the jury upon the question of whether the defendant owed a duty to this plaintiff to warn him of the danger from the use of a hammer such as this in question. The instruction upon this point was as follows: “You have heard the testimony, and it is for you to say, in the first place, as I say, if you believe that the hammer was in the same condition as it is now— If boys of 17, or boys of his age, have not sufficient experience to appreciate the danger which would arise from using a hammer of this description, then I think you may find— you should find — that it became the duty of Mr. Lewis to warn those who came into his employment of the danger which they might naturally apprehend. In other words, if a boy of 17 would not appreciate the fact that a hammer which is chipped would chip again, and that there was danger coming from the chipping of a hammer, then he should be told of it before, and instructed not to use a hammer of that description. If, however, it is a thing that he should apprehend, and that boys of his class would naturally apprehend, then it was obviously one of those risks, I think, which he took upon him in entering upon this employment; and it is for you to say whether he owed that duty to the boy, or whether he did not.” We think this instruction sufficiently defined defendant’s duty in the case. The plaintiff contends that it was the duty of defendant to furnish safe tools and appliances. But we are of the opinion that the case comes within Wachsmuth v. Electric Crane Co., 118 Mich. 275 (76 N. W. 497), and that it must be held that the duty of in [147] spection of these smaller tools is not a duty owing by the master to the workman, where, as in this case, it appears that the hammer was purchased from a reputable firm when bought, and that it was the property of a fellow workman. We think the instruction of the circuit judge ■sufficiently favorable to plaintiff. A motion for a new trial was made, but it presented no ■questions requiring additional discussion. We think no ■error was committed in refusing a new trial. The judgment will be affirmed, with costs. Hooker, C. J., Moore and Grant, JJ., concurred. Long, J., did not sit.