Hartnett v. Owosso Sugar Co.

Ostrander, J. (after stating the facts). It will be unnecessary to consider most of the assignments of error which are relied upon by counsel for appellant. It is evident the trial court was of opinion that no recovery could be had under the third count of the declaration. The jury were not so instructed; but we assume it was understood, from the charge delivered, that to support a verdict for plaintiff it must, among other things, be found ‘ ‘ that it was Howard’s (the fireman’s) incompetency and unfitness in the performance of his duty; and the doing of an act which was the result of his unfitness and incompetency that caused the injury,” and that the jury so found. The only act of the fireman which contributed to the injury of the plaintiff was the turning of steam into the cylinder. No one pretends to say that he did not do this act in a proper way. As to whether he did it at a proper time, the evidence is that, when it is desired to move the dredge, whistles are blown as signals, and there is evidence tending to show that no whistle was blown on this occasion. But the undisputed evidence is, also, that it was a proper thing for the firemen, the spud having stuck and been released, to ascertain whether it was in working order. The fireman could not see plaintiff. The testing of the apparatus was attended ordinarily with no danger to any one. Three concurrent acts made the injury possible— the slipping of plaintiff on the deck, the clutching of the clamp, the turning of steam into the cylinder. The competency or incompetency of Howard, as a fireman, had nothing to do with it; and if he was competent to perform that duty, and his action was, in any respect, negligent, it was clearly the negligence of a fellow-servant of plaintiff. Bergstrom, v. Staples, 82 Mich. 654. It is asserted in the brief for appellee that there are no assignments of error, relied upon, which permit this court to consider the question of the application of the [655] fellow-servant rule. We find specific requests to charge that neither under the first nor the second count of the declaration can a recovery be had, exceptions to the refusal to so charge, and error specifically assigned upon such refusal. The twelfth request to charge is to the effect that plaintiff assumed the risk of the negligence of a fellow-servant, and error is assigned upon the refusal to charge as requested. ' It is assumed, and correctly, in the brief for appellant, that the injury was occasioned because of the action of a fellow-servant of plaintiff, and some 16 pages of the brief is devoted to a discussion of the subject of negligence in the employment of the fireman and negligence in retaining him. Bergstrom v. Staples, supra, and Walkowski v. Consolidated Mines, 115 Mich. 629 (41 L. R. A. 33), are expressly relied upon. There was no evidence to support a verdict under either count of the declaration, and the jury should have been so told. The judgment is reversed, and a new trial granted. McAlvay, C. J., and Carpenter, Hooker, and Moore, JJ., concurred.