Perry v. Michigan Alkali Co.

Grant, J. (after stating the facts). 1. The instruction was correct. The defendant had provided two safe ways by which to reach the pusher. Plaintiff chose a third way which was fraught with danger if he slipped, or the ladder, for any reason, gave way. Had he been using the ladder for the purpose for which it was intended [541] and a rung had broken when ascending the ladder, no injury, in all probability, would have resulted, as plaintiff would naturally have had at least one of his hands upon a rung or side of the ladder. It is evident that a jump from a rung of the ladder to the platform would subject it to a greater strain. To stand upon this ladder with one’s back to it and attempt to jump onto the pusher and reach a rod above the platform was per se dangerous, and such dangerous practice by the plaintiff, although frequent, did not impose upon the defendant the duty to see that the ladder was strong enough and in good repair enough to justify its use for the purpose to which the plaintiff put it. Kopf v. Monroe Stone Co., 133 Mich. 286. Plaintiff knew the dangers and assumed the risk. 2. The instruction was correct for another reason. Plaintiff had settled any claim he had against the company, and had given a receipt therefor. Defendant paid all plaintiff’s hospital charges, $158, and his full pay while off duty, $163.62. He signed a receipt containing these two items, acknowledging them to be “in full payment of all claims and demands of whatsoever nature on account of injuries received by me at coke oven plant. January 27, 1904.” He was off duty from January 27th to April 30th, and the receipt was dated June 3d. As soon as he recovered so as to work he was employed by the company in light work at $1.35 a day, his former pay having been $1.75. While he was in the employ of the company this suit was commenced. When the summons was served upon the defendant he was notified that he could not sue the company and remain in its employ; he must discontinue the suit or leave the company’s employ. He took time to deliberate; went home to see his wife, and then made a statement saying that he signed the settlement of June 3d with full and perfect knowledge as to its legal effect and force; that he ratified and confirmed it, and that the suit was commenced without his knowledge or consent, and he agreed to forthwith notify the attorneys of record to discontinue it. He did so notify them, [542] but previous thereto two attorneys had obtained a contract from him by which he placed the matter absolutely in the hands of his attorneys, and they were to receive 50 per cent, of any judgment they should obtain. Plaintiff testified upon the trial that he had never authorized suit to be brought; that he did not want to sue the company, and that he was willing to work for them: “Q. Did Mr. Ford say that they could not have a man in their employ suing the company, and if you were .suing the company that you would have to withdraw the suit or leave the employ of the company ? “A. Yes, he did tell me that. <lQ. And you understood that you could do either one you wanted to ? “A. Didn’t I go and try to withdraw it ? “Q. Then you wanted to withdraw it ? “A. Yes, but what could I do ? “Q. You mean you couldn’t? “A. Nobody would let me.” I find no evidence showing that there was any fraud on the part of the company in making this settlement; that plaintiff fully understood what he was doing and deliberately made it. While the court did not direct a verdict upon this, ground, but partly upon the ground that it was the duty of the plaintiff to tender back the money paid, which he had not done, still, if for any reason the court should have directed a verdict, the judgment will not be reversed. The judgment is affirmed. Hooker, J., concurred with Grant, J. Montgomery, J. I concur in the result upon the second ground stated by Mr. Justice Grant. Blair, and Ostrander, JJ., concurred with Montgomery, J.