Cusick v. Tamarack Mining Co.

Brooke, J. (after stating the facts). The sole question argued by plaintiff in his brief is that defendant was negligent in selecting an insufficient rope. The record contains no evidence that the rope [96] selected was in fact insufficient for its intended use, except the fact that it broke under the circumstances indicated in the statement of facts. On the contrary, it is in evidence that the rope was new, or nearly new, and that it “looked good.” That the rope parted at the point where the “swifter” was applied might reasonably give rise to the inference that it broke because of improper use and not because of insufficiency. It is, we think, quite apparent that it would be possible, with the instrument applied, to twist a rope of this size completely off. It is not claimed that defendant was in any manner responsible for the way in which the rope was used. The method of use was wholly under the direction of plaintiff himself. It is undisputed that in the rope house defendant had supplied a sufficient number of ropes of proper quality and size to be used as guys for the purpose for which this rope was used. At the time of the accident the defendant was operating its .mine under the following management: Judge Haire, general manager; Mr. Uren, superintendent; Mr. Been, assistant superintendent; Mr. Martin, surface boss at shafts Nos. 3 and 4. Under this situation it is the claim of the defendant that the selection of the rope by Martin, even if not participated in by plaintiff, was the act of a fellow-servant, for which, if negligently performed, the defendant is not liable, citing Lepan v. Hall, 128 Mich. 523 (87 N. W. 619); Erickson v. Mining Co., 130 Mich. 476 (90 N. W. 291); Page v. Pure Food Co., 142 Mich. 17 (105 N. W. 72); Argersinger v. Power Co., 164 Mich. 282 (129 N. W. 889). It is unnecessary, however, to pass upon this phase of the defense, as we are satisfied that the direction was justified upon the ground that plaintiff had assumed the risk. The plaintiff was a man upwards of 50 years of age who had had a large experience in handling ropes of all kinds. He saw the pulley stand [97] and, as well as any other, could estimate the amount of strain it would put upon the guy rope he intended to apply. He himself applied it and doubtless believed it to be safe and adequate when he ascended the pulley stand. Whatever danger there was was quite as obvious to him as to Martin. Indeed, in the light of the event, it may be said to have been more apparent to him than to Martin, because the rope broke at the point the “swifter” was attached, and he alone knew the strain he had applied by the use of that instrument. See Coleman v. Cartage Co., 174 Mich. 231 (140 N. W. 539), and cases there cited. The judgment is affirmed. McAlvay, C. J., and Kuhn, Stone, Bird, Moore, and Steere, JJ., concurred. Ostrander, J., did not sit.