Baucino v. Fitzpatrick

KUHN, J. (after stating the facts). It is the contention of the plaintiff that there was evidence of negligence on the part of the defendant sufficient to submit the case to the jury, and that it cannot be said that the plaintiff assumed the risk of injury resulting from the failure of the defendant to shore up and brace the sides of the trench, and that it cannot be said that he assumed the risk of the defendant’s failure to comply with the ordinances of the city and the rules of the board of public works which required him to shore and brace the sides of the trench. The plaintiff had no part in making the place in which he was required to do his work, nor was it a part of his duty to assist in shoring up or bracing the sides of the trench. He was directed to work in this particular place by the explicit command of the foreman Sullivan. Having, in mind the rule that where a verdict is directed for the defendant the evidence presented by the plaintiff should be considered in a light most favorable to him, in our opinion the doctrine of safe place applies in the instant case. The plaintiff had a right to assume that the place where he was called upon to work was safe and that he would not be directed to work in an unsafe place. Under the well-established rule in this State, it is the duty of the master to provide his servant a place rea [5] sonably safe to work in, and this duty is one which cannot be delegated by the master. Orso v. Engineering Works, 164 Mich. 568 (129 N. W. 673); Ranta v. Mining Co., 180 Mich. 459 (147 N. W. 609); Maki v. Copper Co., 180 Mich. 624 (147 N. W. 533). It is said, however, that the plaintiff, being a man experienced in excavation work, knew the danger, as he called the attention of the foreman to the necessity of using planks so as to make the place safe. When the foreman’s attention was called by the plaintiff to the necessity of protecting the excavation, he was told to go on with his work and to hurry. It was clearly his duty to obey his superior and to rely upon the latter’s judgment, unless the danger was so obvious and imminent that an ordinarily prudent person would not have undertaken the work even though ordered by his master to do so. We do not think that this can be said in the instant case as a matter of law. Clearly there was enough testimony from which an inference might be drawn that the plaintiff did not regard the danger so immediate and imminent as to warrant him in disregarding the assurance and direction of his superior. This is a question which should have been submitted to the jury. See Asplund v. Mining Co., 177 Mich. 529 (143 N. W. 633), wherein the authorities on this subject are reviewed. See, also, City of Owensboro v. Gabbert, 135 Ky. 346 (122 S. W. 178, 135 Am. St. Rep. 462, 21 Am. & Eng. Ann. Cas. 705). The circuit judge in directing a verdict held that the ordinances of the city of Grand Rapids and the rules of the board of public works imposed upon the defendant duties to the public and not to the employees working in the trench. In this we are of the opinion that he was clearly right, under the authority of Taylor v. Railroad Co., 45 Mich. 74 (7 N. W. 728, 40 Am. Rep. 457), affirmed in Maclam v. Hallam, 165 [6] Mich. 686 (131 N. W. 81). The language of the ordinance and the rules of the board of public works is convincing that they were intended alone for persons using the street, and imposed a duty to the public and not to the individuals working in the trench. Being of the opinion, however, that the question of a safe place raises a question of fact for the jury, the judgment must be reversed and a new trial granted. Brooke, C. J., and McAlvay, Stone, Bird, Moore, and Steere, Jj., concurred with Kuhn, J.