Stone v. Bennett

Brooke, J. (after stating the facts). The testimony shows that the woodsmen were directed to fell the trees toward the logging road shown along the north side of the diagram. It also tends to show that the tree cut by Heaney and son was “notched” so as to fall to the. north. It also appears that there was a wind blowing on the day of the injury from the northwest, and that such wind probably caused the tree to fall nearly due east, instead of north, as intended. Plaintiff and Lefevre were not only experienced woodsmen, but were in the full possession of all their faculties. Both swear positively, although Heaney and son were at work chopping and sawing upon their tree within a distance of about 50 feet from where they themselves were, that they did not hear or see them. This statement would seem almost incredible, but, whether true or false, it is certainly true that Heaney and his son knew of the proximity of the plaintiff and Lefevre, because plaintiff’s tree had fallen but a few minutes before Heaney’s tree fell, and while Heaney and his son were at work upon it. It is undisputed upon this record that Heaney and son were expert woodsmen of large experience. Defendant saw the Heaney tree and how it was notched, and his experience as a woodsman led him to believe that it would fall to the north, a belief doubtless shared by Heaney and his son. The first question presented for consideration is whether the learned circuit judge erred in submitting to the jury the proposition as to whether defendant was guilty of negligence in placing plaintiff at work in an unsafe place. Upon this point much reliance is placed by the plaintiff upon the case of Asplund v. Mining Co., 177 Mich. 529 (143 N. W. 633). This case we think is not controlling. The place at which [447] plaintiff was set to labor was in itself safe. It was made unsafe only through the act of himself or his fellow employees, and was constantly changing. Under such circumstances the doctrine of “safe place” does not apply. We have held that where the workman must make his own place to carry on his work, the principle is inapplicable. Andrews v. Mining Co., 180 Mich. 72 (146 N. W. 394); Kochin v. Copper Co., 181 Mich. 543 (148 N. W. 252); Koskell v. Mining Co., 182 Mich. 586 (148 N. W. 699). The master is not negligent in failing to furnish a place safe as against apparent and obvious dangers. Soderstrom v. Lumber Co., 114 Mich. 83 (72 N. W. 13); Nephew v. Whitehead, 123 Mich. 255 (81 N. W. 1083). As to the plaintiff’s knowledge of the dangers surrounding him in the work upon which he was engaged, he testified upon cross-examination in part as follows: “Q. While you were working there with Lefevre, you heard men working in the woods, on all sides of you, didn’t you? “A. Yes, sir. * *. * “Q. Didn’t hear any saws — heard men chopping? “A. Yes, sir. * * * “Q. You realized the position you were in, and hearing the men chopping around you, that you might be hurt by a tree falling, didn’t you? “A. Yes, sir. “Q. And you knew that as you would move about in the bush, you would have to look out for such things, didn’t you? “A. Yes, sir. * * * “Q. You had cut cedar before, hadn’t you? “A. Yes, sir. “Q. And had been in the woods for six or seven years, both in Michigan and Minnesota? “A. Yes, sir. “Q. And had all kinds of forest products, such as we have in Chippewa county, hadn’t you, before this time? “A. Yes; all kinds of wood. [448] “Q. You had cut down trees a great many times ? “A. Yes, sir. “Q. You knew before taking employment with Mr. Bennett that a tree sawed at the base clear through would fall to the ground, didn’t you? “A. Yes, sir. * * * “Q. You knew that it was dangerous to be around where trees were liable to fall, didn’t you? “A. Yes, sir. “Q. You knew that a person working in the woods would have to keep his eyes and ears open, and look out for danger from falling trees, didn’t you? “A. Yes, sir.” It is, we think, clear that the plaintiff was just as well aware of the peculiar dangers attendant upon his work as was his master. His place of employment was safe unless by his own acts or the acts of his fellow servants it was made unsafe. He, therefore, must be held to have assumed the risk. If the accident occurred by reason of the negligence of Heaney and his son in felling the tree at a point too close to that where plaintiff and Lef evre were working, plaintiff is not aided, as under all the authorities Heaney and his son were fellow servants of the plaintiff. The second point upon which the judge submitted the case to the jury was the alleged failure of the defendant to warn the plaintiff of his danger. The negligence of the defendant is here predicated upon the alleged fact that he knew of the proximity of Heaney and his son while plaintiff did not. While, as before pointed out, it is difficult to understand how Heaney and his son were visible and audible to the defendant and yet remained unseen and unheard by the plaintiff, still, assuming this to be true, we are unable to perceive how any negligence can be predicated upon the fact that defendant failed to warn plaintiff of his danger. The reason for this conclusion is based upon the fact that defendant himself stood at a point where, [449] if he had not jumped aside, he would have been injured. He saw the tree Heaney and son were working upon, saw how it was notched, believed it would fall in a certain direction, and did not apprehend any danger therefrom. As soon as it started to fall and he appreciated the fact that it was falling toward plaintiff and himself, he, as well as Heaney and son, attempted to apprise plaintiff of his danger. Until a master knows and appreciates, or in the exercise of ordinary care should know and appreciate, a danger to his employee, there certainly is no obligation upon him to warn that employee of such danger. Dunn v. Dredge & Dock Co., 161 Mich. 551 (126 N. W. 833); Poirier v. Lumber Co., 182 Mich. 678 (148 N. W. 750). We are clearly of opinion that the learned circuit judge was in error in submitting the case to the jury upon either of the propositions considered, and that he should have directed a verdict in favor of the defendant at the close of the plaintiff’s case. .The judgment is reversed, and there will be no new trial. Stone, C. J., and Kuhn, Ostrander, Bird, Moore, and Steere, JJ., concurred. Person, J., did not sit.