Brown v. Lennane

Blair, J. Plaintiff, a man of mature years, was injured by reason of the frozen crest or crown of a sand pile falling upon him, and brought this action to recover damages therefor'. — 687 — Plaintiff testified, omitting the curses with which he claims Mr. Brennan’s statements were interlarded, as follows: “ I had a conversation with Mr. Brennan before the accident. It might be a minute before. I don’t know what it was exactly. I don’t remember it all. I remember part of it. He came rushing over. I was taking the sand from the side. Mr. Brennan came rushing over, and he says, ‘--it, Brown, you are scraping there like an old woman.--, why don’t you come over here, and take it where it is plentiful ? ’ And he started shoveling the sand from under this crown, and at the same .time he motioned to the other man to come over with him to the center, and the man pulled his wheelbarrow over, and I says: ‘ Mr. Brennan, ain’t that crown liable to cave in on us fellows ? ’ He says: ‘ No,-it, no; that is as firm as masonry. That is as strong as stone.--that is perfectly safe.--it, I was up and around there. That is perfectly safe. I want the sand over, Brown.’ And I lifted the shovel and was shoveling the sand, and Mr. Brennan comes towards me, and I says: ‘ Mr. Brennan, did you expect two men to do five men’s work?’ And he says, ‘--you, Brown, I don’t want any back talk.--, I want the sand over. I don’t want any back talk at all. You will be the next one to get out of here. I will fire you.’ I was working then, I was shoveling sand, and I didn’t talk back any more. He was still digging in from the same place, and filling up his wheelbarrow. The other man was doing this. Brennan ordered him over. He swore at him, and told him to come over where the sand was plentiful. I started to dig there. I was digging only a few seconds after he told me about this being safe. I was shoveling the sand into the wheelbarrow. Brennan had shoveled about two-thirds of the wheelbarrow full, and I shoveled probably three, four, five, or probably six shovelfuls of sand after that. . My colaborer was still digging at the sand from the same place and throwing it into bisown wheelbarrow. After I got through, I turned right around like this, and I catched the handles of the wheelbarrow and lifted it up to run away with it, and the crash came right down on me. The frozen sand came down from this overhead, hanging over. This hung over probably three or four or five feet.” — 688 — The trial judge directed a verdict for the defendants upon the ground that plaintiff assumed the risk, and plaintiff brings the record to this court for review upon writ of error. We think that the case is distinguishable from Toomey v. Steel Works, 89 Mich. 249, Livingstone v. Plate Glass Co., 146 Mich. 236, and other Michigan cases cited by counsel for defendants, in that in the case at bar defendants’ vice principal vehemently and with oaths ordered plaintiff to do the work, on pain of losing his job, and at the same time informed him substantially that he had been up on top of the sand pile and tested its safety, and that it was actually safe. This is more than the mere expression of an opinion or than a statement apparently based upon facts equally open to plaintiff’s visual observation. It was a representation that the superintendent had actually gone upon the sand pile, tested it, and found as a matter of fact that it was safe. We do not think it can be said, as a matter of law, that the plaintiff " assumed the risk, under such circumstances, in obeying the orders for a reasonable time. Throughout the trial of the case, Mr. Brennan was apparently treated as defendants’ superintendent and representative. And no claim appears to have been made that he was a fellow-servant of plaintiff. The trial judge charged the jury: “ That, for the purpose of this case, Mr. Brennan stood, upon that day, toward the plaintiff in the position of the plaintiff’s employer. He had the power to hire and discharge men and give directions, and was in control over them, so that whatever Mr. Brennan did upon that day may be taken to be the act of the defendants themselves.” The correctness of the charge in this respect is not called in question by counsel for defendants, and in my opinion the record supports it. Plaintiff testified: {‘ There were five of us wheeling sand, all to the same place, under the direction of Superintendent Brennan. Superintendent Brennan had charge of the cement work on the overhead crossing, the piers, and abutments and para — 689 — pet walls that were put up out of concrete. * * * Mr. Brennan hired me and he paid me. * * * Mr. Brennan had charge of the carpenters, and he directed them.” Mr. Brennan testified: ‘ ‘ I don’t know that Brown claims that it was through my carelessness and negligence as superintendent of Lennane that he was injured. I don’t think so. I had charge of 400 or 500 men. * * * The work was in two separate sections. I had charge of the concrete construction work, and Mr. Walker had charge of the grade work, and, when I would want to borrow a few men, 1 would take them from his gang, and, if he wanted to borrow a few men, he would take them from my gang, and the men appear on both books. Sometimes they might appear on this for 45 hours or on Mr. Walker’s for the balance of the date, according to how we kept them, but the majority of these men were with me from the day I commenced the work till I ended it. I ended it some time in June, if I am not mistaken. I went to Des Moines, Iowa, to take charge of a construction job there. I haven’t seen any of these men since I left. I hired these men and Mr. W alker hired them. If I borrowed men from Mr. Walker, I had the men for the concreting. I had the men for the cement construction. They left it entirely to me, and sometimes they would come around and say, ‘ I want you to discharge a man,’ and I had to go under their supervision.” Judgment reversed, and new trial granted. Montgomery, Moore, and McAlvay. JJ., concurred with Blair, J.