Riffel v. Union Truck Co.

Brooke, J. (after stating the facts). There are but three assignments of error: “(1) The court erred in excluding the following question: ‘What was that accident the result of, in your opinion?’ propounded to the witness Leonard Wall by Mr. Van Dyke, attorney for plaintiff. “(2) The court erred in stating in the charge to the jury that ‘there is no proof of negligence.’ “(3) The court erred in directing a verdict for the defendant.” We are of opinion that the answer to this question was properly excluded. All the facts surrounding the accident had been detailed to the jury. It was for the jury to draw such legitimate inferences from those [681] facts as were warranted. It was not a case in which expert testimony was admissible. Lemon v. Railway Co., 59 Mich. 618 (26 N. W. 791); Jackson v. Railway Co., 161 Mich. 168 (125 N. W. 763). The next two assignments of error may be treated together. They raise the controlling question in the case. In our opinion the verdict was properly directed for the following reasons: The only defect shown to exist in the truck at the time of the accident was that the axle on its underside was worn somewhat flat. It is uncontradicted that this flatness did not render the truck unsafe but that its existence» necessitated a more frequent oiling than otherwise. The record clearly shows that the duty of oiling rested upon the plaintiff himself. It is not even shown that the accident occurred by reason of there being insufficient oiling. From all the testimony, the conclusion is inevitable that the accident and resulting injury was caused by the coming off of the nut or burr which holds the wheel upon the axle. This is an accident which, in turning and backing of wagons, we should suppose to be of no infrequent occurrence. It was such an accident as a casual inspection by the plaintiff would have averted, and, according to the testimony in the record, the duty of inspection rested upon plaintiff himself. Indeed, he himself says, “Any man with a new tool ought to look the tool over before he takes it out.” A glance at the alleged defective axle at the depot where plaintiff obtained his last load would undoubtedly have disclosed the condition of the nut. At the time he started from the depot, it must have been very nearly off, as the evidence discloses the fact that in going forward it was so threaded as to become tighter instead of looser through the friction between it and the end of the hub. We think the plaintiff, under the circumstances of this case, must be held to have as [682] sumed the risk. Prentiss v. Manufacturing Co., 63 Mich. 478 (30 N. W. 109); Kean v. Rolling Mills, 66 Mich. 277 (33 N. W. 395, 11 Am. St. Rep. 492); Wheeler v. Berry, 95 Mich. 250 (54 N. W. 876); Breig v. Railway Co., 98 Mich. 222 (57 N. W. 118); Gavigan v. Railway Co., 110 Mich. 71 (67 N. W. 1097) ; Welch v. Brainard, 108 Mich. 38 (65 N. W. 667) ; Soderstrom v. Lumber Co., 114 Mich. 83 (72 N. W. 13) ; Hayball v. Railway Co., 114 Mich. 135 (72 N. W. 145) ; Mackey v. Furnace Co., 119 Mich. 552 (78 N. W. 783) ; Goga v. Foundry Co., 142 Mich. 340 (105 N. W. 859). In this connection it should be noted that the defect to which plaintiff called the attention of defendant’s superintendent at the brewery company was not in any wise connected with the accident or injury; it consisting in a tendency of the tire on the rear right wheel to come off. The judgment is affirmed. McAlvay, C. J., and Kuhn, Stone, Ostrander, Bird, Moore, and Steere, JJ., concurred.