Boman v. Mashek Chemical & Iron Co.

Ostrander, J. (after stating the facts). In their main brief counsel asked to have considered contentions stated by them as follows: “ First. The court erred in refusing to instruct the jury to return a verdict for the defendant, as requested. The court was requested to instruct .the jury to return a verdict for the defendant, because (1) the plaintiff has, by his testimony, and the testimony in the case, not only failed to show that he was himself free from fault or negligence in the premises, but, on the contrary, that he was guilty of negligence, which contributed tc the injury; (2) the plaintiff assumed the risks incident to his employment; (3) the negligence of the defendant, if any, was not the proximate cause of-the injury. And the injury was not such a one as the defendant, even though negligent, could have reasonably anticipated would be the natural or probable result of its negligence. * * * “The court erred in instructing the jury as follows: • * * Take into consideration the time of day, exercising your own judgment and common sense, as to the degree of daylight or darkness at that season of the year and at that time. There are certain things a jury is supposed to know — when the sunrises and sets, and matters of that kind.’ ‘ ‘ The court erred in instructing the jury as follows: “ ‘ A person, when employed and instructed to commence work at a particular place, substantially as in this case, is under no obligation, in order to protect himself from the charge of contributory negligence, to first go all over the building or plant and make himself familiar with each piece of machinery, and the danger he may incur in case he comes in contact with it in its then condition.’ ” It is clear that the opening in the elevator next to the platform served no purpose of defendant’s business, that [182] the conveyor shaft was not in repair, and the resulting situation was a dangerous one. The contributory negligence of plaintiff is shown, it is claimed, by the fact that he developed the situation from or out of which he hastily retreated, must be held to have anticipated the result of undermining the sawdust, and was bound to see to it that there was a safe way to escape from a position of danger created by himself and to escape by any other way at his peril. Plaintiff did escape the falling sawdust, in which respect the case is unlike, and therefore cannot be ruled by, Welch v. Brainard, 108 Mich. 38. It is true there was plenty of room on the platform back of the hopper. But we cannot say that safety with respect to the danger which threatened was better attained by moving in that direction than by moving in the one in which he moved, except by assuming that plaintiff knew the elevator was, for 12 or 14 inches and next to the platform, uncovered. The position in which he was standing when he discovered his danger would, probably, control his movements. It is possible that from the position in which he stood he took the only way of retreating. He knew there was great danger if he was, by any cause, carried into the hopper. It is said that the rule that, where one in the presence of imminent danger is compelled to choose a way of escape, he is not guilty of contributory negligence because he makes a wrong choice, does not apply, and that the proximate cause of the injury was not the opening in the elevator, but was the putting himself in a position of danger from which he found it necessary .to flee. The argument assumes the existence of facts, one of which is that plaintiff carelessly created the danger from which he sought to escape, the other that in the usual course of the business it could not have been reasonably anticipated that an employe in escaping the hopper might be obliged to do as plaintiff did, step to the side of the opening in the car and towards the conveyor, instead of at all times standing or stepping back of the hopper. We cannot say, as matter of law, these facts existed. There is room for a differ [183] ence of opinion as inferences shall be drawn from all the facts and circumstances disclosed. Facts similar to these were found to exist in Groff v. Mill Co., 58 Minn. 333, relied upon by defendant. And, without attempting to here state the facts, we think the case of Rysdorp v. Lumber Co., 95 Wis. 622, also relied upon, opposed to the contention of defendant. No requests to charge were made on the part of defendant except the one that a verdict for defendant be directed. The jury found that plaintiff did not know about the uncovered conveyor, and was not inexcusably ignorant; both questions being fairly submitted to them. They were told that, if they found the elevator had been repaired on the day in question, defendant was not liable. The testimony that it was so repaired is said to be uncontradicted. This point is first made in the supplemental brief, and the testimony is inferentially, if not directly, disputed by the foreman by whose direction the witness who testified to having made the repairs says he made them. The portions of the charge of the court criticised are detached, and do not fairly present the instructions as a whole. Taken as a whole, the charge was favorable to defendant, with great care presented the issues to be determined, and could not have been misapprehended by the jury. That portion of the charge stated which relates to the duty of plaintiff to make himself familiar with his surroundings is a restatement substantially of the rule announced in Swoboda v. Ward, 40 Mich. 420, and was not misapplied here. The judgment is affirmed. Carpenter, Montgomery, Hooker, and Moore, JJ., concurred.