Ferry v. American Suction Gas Producer Co.

Carpenter, J. (after stating the facts). 1. Duty of warning. It is not contended by plaintiff that the duty resting on defendant of giving warning to plaintiff was a non-delegable duty for the performance of which defendant was responsible. It is contended, however, that a duty rested upon defendant to provide a method of warning, that this duty was a non-delegable duty and that it was not performed in this case. Whether such a duty rested upon defendant or not we do not feel called upon to determine, for we think the evidence proves that if there was such a duty, it was fully performed. It is true that the testimony shows that no rules on this subject were posted or formally promulgated. But it is also true that the testimony proves that it was understood generally, and particularly by Wollpert, the offending employe, that he “was to use all care possible; to keep his eyes peeled for anybody that might be in the way, and if they were in the way to call out and warn them.” It appears, too, that he knew that plaintiff was working in the path of the crane, and that the accident happened, because, as he states: “I was talking with Mr. Avis and it [the plaintiff’s location in the path of the crane] slipped my mind.” No rule that could have been devised by defendant would have been better than the rule which Wollpert understood governed his action, and we, therefore, say that if the defendant was under any obligation to establish rules to warn plaintiff of the movements of the crane, there is no evidence that it failed to perform that duty. 2. Wollpert’s competency. Was there any evidence from which the jury could have found a verdict for plaintiff upon the ground that Wollpert was incompetent? Wollpert went to work for defendant along the last of February or the first of March. Prior to that time, he had had no experience with an electric traveling crane. Soon after his employment by defendant, he commenced to operate the crane, and from that time until plaintiff’s injury — this occurred May 11th — he operated it many times — he estimates two dozen times. It appears, too, that [269] he was an intelligent man who had worked about machinery for two years before he became defendant’s employé. It does not appear from the testimony that it required a long experience to learn to operate this crane. Indeed, I think it may be said that it is conclusively proved that Wollpert not only understood how to operate it but did operate it skillfully on this occasion. For at the first outcry from plaintiff he did precisely what was required to be done to avoid further injury. And the disaster resulted, not from his unskillfulness, but from a lapse of memory not inconsistent with skill and competency. The ■determining question is whether incompetency should be inferred from Wollpert’s short experience. The record contains considerable opinion testimony bearing upon thi§ question. We refrain from quoting it. But it may fairly be stated that from this testimony it cannot be inferred that a longer experience than Wollpert’s was necessary to enable an intelligent mechanic to safely operate this crane. As bearing upon the requisite experience to insure competency, it is of some significance- that plaintiff himself, who does not seem to have had any prior experience in running electric cranes, after his injury returned to defendant’s employment and took “charge of this electric crane and was in a way able to run it with one hand.” We do not think that this record contains any testimony from which the jury could infer that Wollpert was incompetent. Another argument advanced by plaintiff compels us to consider the question: Was defendant responsible for the negligence of Hillprecht in performing a delegable duty ? This question is answered in the negative by many decisions of this court. See Guest v. Illuminating Co., 150 Mich. 438; Amoe v. Engineering Works, 151 Mich. 212, and authorities cited in these two opinions. We conclude that the trial court properly directed a verdict in defendant’s favor. Judgment is affirmed. Ostrander, Hooker, Moore, and McAlvay, JJ., concurred.