author: Brooke, C. J.

text:
    BROUDY v. DETROIT, JACKSON & CHICAGO RAILWAY.
    1. Euectkicity — Evidence—Death—Negugence.
    Evidence tending to show that decedent was killed by a current of electricity which passed over a telephone wire in the street which had fallen after a severe storm and that only certain currents of sufficient capacity to cause death were in operation in the city at that time, held, insufficient to show that the cause of death was the high tension wire of the defendant.

      2. Same — Trial—Directed Verdict.
    Where the evidence failed to show that defendant’s current was the only deadly one in the city at the time of the accident or that defendant’s trolley wire actually came in contact or connection with the telephone wire which was down, and where the most which could be said of the testimony introduced in plaintiff’s behalf was that the accident might have occurred in the way alleged, plaintiff did not satisfy the burden of proof resting upon him to show negligence and the trial court did not err in directing a verdict for defendant.
    Error to Washtenaw; Kinne, J.
    Submitted November 6, 1914.
    (Docket No. 147.)
    Decided March 17, 1915.
    Case by Lena Broudy as administratrix of the estate of Jacob Broudy, deceased, against the Detroit, Jackson & Chicago Railway, for the wrongful killing of decedent. Judgment for defendant upon a directed verdict. Plaintiff brings error.
    Affirmed.

      Arthur E. Fixel and Max H. Finkelston, for appellant.

      Cavanaugh & Burke, for appellee.
    On the 4th day of June, 1911, at about 7:45 in the evening, a very severe wind and rain storm struck the city of Ypsilanti. It lasted an hour or more, and did a great deal of damage in and about said city. Trees were uprooted, and poles carrying wires were, thrown down. At exactly what period of the storm the heaviest wind came is not disclosed, although it seems certain that the three heavy gusts described by one witness occurred in the earlier part of the disturbance. The plaintiff’s intestate, a man about 45 years of age, lived at the corner of Spring and Bell streets in said city with his family. After the first fury of the storm had spent itself, he became concerned for the safety of two of his. boys, about 10 and 12 years of age, who seem to have been at a store about a block distant from his residence during the storm. He, in company with a neighbor named Wiard, started out to find the children. The city was at that time in total darkness. Wiard testified:
    “I walked along with him. He was looking for his boys — his two children. I went to the store with him, and then went from there over to Mrs. Donahue’s, and from there to the barn, and was looking after the horses, and was looking around to see what damage I had, and there I heard the screaming. When I walked with him he was on the sidewalk on the south side of Spring street. I came out from my house down the sidewalk. We walked down together. I live on Spring street. He lives across the road, on the opposite corner. He came out across the road to my house. We both walked over, and as we walked I saw these wires down. He came right under the wire. I called his attention to the fact. I said that was a live wire, and to be careful; ‘Be careful when you go back.’ * * * You couldn’t see the wire. It was dark. You could see flashing up there once in a while. It wasn’t flashing as much as it had been. I told him to look out for it on the way back. * * * I said: ‘Look out for wires, for they are alive.’ ”
    On the way back from the store to his residence plaintiff’s intestate came in contact with a telephone wire hanging in the street at the corner of Spring and Bell streets. His son, who was with him, and was then 13 years old, testified as follows:
    “When we got to the corner of Spring and Bell streets we were just going to turn around and go into our house, right there by the door. We knew there was a wire there, but we did not know where it was. We were trying to look out for it. I was walking back, and my brother was walking with my father. My father fell. He fell on his side. He cried out three times. It was all done in a second. The next thing I saw him fall. I was going to pick him up. I took hold of his coat, but it was a wire. I got such a shock that I had to let go. I screamed and my mother came out. I pulled my little'brother off.”

      Plaintiff, as administratix of the estate of her dead husband, filed a declaration originally charging the defendant and the Eastern Michigan Edison Company with negligence, which she claimed caused the death of her intestate. Before the trial she discontinued as to Eastern Michigan Edison Company, and the case went to trial against the Detroit, Jackson & Chicago Railway alone.
    The plaintiff introduced evidence tending to establish the fact that the Eastern Michigan Edison Company had a service system in operation in the city of Ypsilanti, the wires of which carried 2,300 volts from the transformer. There was also a high-tension wire running through the city carrying perhaps 20,000 volts. It does not appear whether this high-tension wire was a part of the system of the Eastern Michigan Edison Company plant or not, although, presumedly, it was. Plaintiff also showed by the engineer of the municipal plant for furnishing water and light to the city of Ypsilanti that that concern had a system of wires for municipal light throughout the city which carried from 900 to 2,300 volts. Evidence was also introduced on behalf of plaintiff tending to show that the defendant railway company, upon its trolley line running through the city, carried a voltage of between 500 and 600. The record further shows that at some time during the storm the trolley wire of the defendant company was blown down, and was lying upon the street, in Washington street, about a block distant from the power house of the defendant, and where it struck the ground flashes of electricity were seen. Such electrical displays were also observed in the streets at different points in the city. The corner of Spring and Bell streets is distant about one-half mile from the point where defendant’s trolley wire was upon the ground. It was the theory of the plaintiff that defendant’s trolley wire had in some way come in contact with the city lighting wires which passed the corner of Spring and Bell streets, and the telephone wire which had likewise been blown down at that point received the railway company’s current through said telephone wire and said lighting company wire, from the trolley wire which was on the ground a half mile distant. In order to support this testimony the plaintiff endeavored to show that all other sources of electrical current were eliminated at the time the accident occurred. The moment of the death of plaintiff’s intestate seems to be definitely fixed by several witnesses at 8:50 p. m. The engineer of the lighting plant testified:
    “After the power started to flash up I shut it right down. It cut off all the street lighting in Ypsilanti. I fix the time at some time between 7 and 9 o’clock.

      “Q. After you turned that power off was there any other power turned on that evening that would furnish light in Ypsilanti in the arcs?

      “A. No light at all; as soon as the pumps were turned off there was no power connected with the lights that night. I was too busy about that time to look at the clock to fix the time.

      “Q. To definitely fix the time that you turned it off, was it storming?

      “A. I was too busy about that time to look at the clock.”
    William D. Miller, superintendent of the Eastern Michigan Edison Company at Ypsilanti, on direct examination testified:

      “Q. What happened to the Edison power, did it continue that night; or was it injured?

      “A. No, sir; it was injured; it was interrupted.

      “Q. Or was it cut off?

      “A. It was cut off; yes, sir.

      “Q. Did that take place when the heavy wind came that caused the damage around Ypsilanti?

      “A. It did; yes, sir.

      “Q. Did the Edison Company have any light power in the city of Ypsilanti after their system got out of order?

      “A. None whatever.

      “Q. What other power lighting wires are there, or other wires that carry electricity in the city of Ypsilanti, besides the Edison?

      “A. The street railway company have power wires, and the city of Ypsilanti has a lighting circuit in the city. * * *

      “Q. Was there any other wiring around Ypsilanti except the Edison, the city lighting wires, the Detroit, Jackson & Chicago, the telephone and telegraph wires ?

      “A. No; none that I know of.

      “Q. And were these all the companies that carried power in Ypsilanti?

      “A. Yes.

      “Q. Have you been over the lines on the different streets, so that your information would be correct, and you would know there was nothing injurious on the streets of Ypsilanti?

      “A. Well, there might be something brought through and constructed in the city of Ypsilanti that would not come to my attention; yes. I never looked over Ypsilanti to see whether there was anything there injurious or not, but I don’t think there was.”
    On cross-examination he testified in part as follows:
    “I never had anything to do with telephone and telegraph wires in the line part of it. I have heard of men being killed working on telephone and telegraph wires. I would not consider the conditions were normal then. I know of instances where men were killed by telephone and telegraph wires. The substation of the Edison plant is north and west of Ypsilanti. The only wire we had on this street was a wire crossing the street between Ellis and Pearl. There may have been another line crossing Washington and Emmet street. I am not quite certain. ' I made no statement that there were lights burning in the city of Ypsilanti after the storm. The question was not asked me. Those are not high-tension wires that I am speaking of that come into the city of Ypsilanti. I have not been speaking of high-tension wires, of anything above 2,300. I don’t know from my own knowledge anything about the power that came into the wires at Ann street through the transformer. I only knew the reports that were handed in. I was not beyond the transformer house myself. I don’t know anything beyond the transformer house of my own knowledge. High-tension wires follow right along with the telephone and telegraph wires. They follow probably within 60 feet in places; in places it may be nearer. They carry very high voltage; perhaps 20,000. Our voltage is 2,300. After it leaves the transformer our voltage is 2,300. The voltage of the Detroit, Jackson & Chicago trolley is sometimes 500 to 600. I suppose it is from 500 to 600 voltage in order to run their cars. I do not know of my own knowledge whether the Edison high tension was on here in Ann Arbor. The size of the Edison wire that crossed Ellis street was No. 6, I think. The line that crossed Ellis street is only 220 volts, secondary. The transformer was on the west side of Washington street. The only other high-tension wires that passed through Ypsilanti besides those that come into the Edison transformer are the high-tension wires of the Detroit, Jackson & Chicago or the Detroit United Railway, which pass through Ypsilanti by way of the Huron river. Power was not furnished to the Detroit, Jackson & Chicago by the Eastern Michigan Edison Company at the time of the storm. It is now.”
    The contention is made on behalf of plaintiff that, under the foregoing. testimony, it was conclusively proven that no current was abroad in the city of Ypsilanti except that carried by the defendant’s trolley wire. It is urged that the shutting off of the power in the transformer station of the Edison Company eliminated the 2,300 volts used in their service system,' and that the shutting off of the power in the municipal plant eliminated the 900 to 2,300 volts used in that system, and, although the engineer of the municipal plant was unable to fix the time when his power was shut off, it is argued, from the fact that the city was in darkness at the .time of the accident, that that power must be eliminated.

      At the conclusion of the plaintiff’s case, defendant moved for a directed verdict upon the following grounds:
    “(1) Because the declaration does not state a cause of action.
    “(2) Because no negligence as charged in plaintiff’s declaration has been proven.
    “(3) Because there is no evidence that the electric current of the defendant passed over any other wire.
    “ (4) Because there is no evidence that the electric current of the defendant passed over the wire of the city’s lighting wires.
    “(5) Because it conclusively appears from the evidence that the plaintiff’s intestate was killed in the south part of the town and a half mile away from where its wires were down.
    “(6) Because there is no evidence that the wires of this defendant came in contact with any other wires, and there is no evidence that the electricity furnished by the defendant was communicated to the corner of Bell and Spring streets, in the city of Ypsilanti.
    “ (7) Because there has no evidence been introduced in this cause that the plaintiff was killed through any fault and negligence of the defendant.
    “ (8) Because there is no evidence to support a verdict against the defendant and in favor of the plaintiff under the pleadings.”
    The court granted the motion in the following language :
    “It is lamentable that Mr. Broudy should have lost his life under such circumstances, but my view about it is that it is the act of wisdom to stop this case here, and, if there is any wish on the part of any interested to take this to the Supreme Court, I think that ought to be done before there is any other expense in this matter.”
    “Criticism has been made of the declaration in this case. Some of it may be just, but the matter that more particularly appeals to me is this: If I was compelled to submit this to the jury, it would be on the doctrine of chances and possibilities and probabilities. It does not seem to me as though that was the right thing to do. In this case it may be difficult to establish the proof as the plaintiff would like, but I think there should be some certainty in the evidence and proof before we call upon a man or a corporation to pay for the loss of such a life, and I think that the criticism that has been made on the proof is just. It does not seem to me that the evidence justifies me in submitting to the jury the question whether or not there was any negligence on the part of the company which resulted in the death of this man. I fail to see where the evidence is that they can take hold of and recognize as pointing to negligence on the part of the defendant company. I think, under the circumstances, to hold this defendant liable for the death of this man would be unjust and in violation of legal principles, and I think. I ought to direct a verdict for the defendant.
    “A motion was made at the conclusion of the testimony on the part of the defendant looking to the proposition that the declaration is insufficient in this action, and that the proof fails to establish a case which ought to be submitted to the jury. I am inclined to sustain that motion. I have held, and now hold, that I don’t think there is evidence in this case which justifies me in submitting this matter to the jury; and therefore, Mr. Clerk, you may take the verdict of the jury in favor of the defendant.”
   Brooke, C. J.

(after stating the facts). A careful reading of the entire record in this case convinces us that the learned circuit judge reached a proper conclusion. Considering the testimony introduced on behalf of plaintiff for the purpose of establishing the fact that the only lethal current abroad in the city of Ypsilanti at the moment of the death of plaintiff’s intestate was that upon the trolley wire of the defendant company, we find that the record fails to disclose that the high-tension wire which carried about 20,000 volts was devoid of current at that time. We further find that the engineer of the city lighting plant was unable to determine at what time the power of that plant was shut off. He fixed it at somewhere between 7 and 9 o’clock, and, as plaintiff’s decedent received the deadly current at 10 minutes before 9, it is plain that, so far as this testimony proves anything, the city current might have been on at that time.

It is argued, on behalf of plaintiff, from the fact that the lights were extinguished at the time of the injury to plaintiff’s intestate, that the municipal current must have been absent from those wires. There was testimony in the case, however, given by the plaintiff’s witnesses that those wires might have carried current even though the lamps were unlighted. Indeed, if plaintiff’s theory of the accident is correct, those wires must have carried the current from the defendant’s trolley wire to the point where the accident occurred. The record likewise fails to show affirmatively that defendant’s trolley wire actually came in contact with any other wire or wires at the point where it fell on Washington street. The witness Chadwick, speaking of defendant's trolley wire, on direct examination testified:

“Q. Did you observe flames when wires struck wires ?

“A. Yes.

“Q. Did you observe that when a wire struck the rails?

“A. Yes; when wires struck rails it would flame up.

“Q. Did you see any wires burned in two?

“A. No; it was dark.”

On cross-examination the same witness testified:

“Q. You don't know, of course, whether the wires came in contact with each other or not; all you know is that the wires fell down?

“A. When they crossed there would be a ball of fire strike up, and they would separate, and out it would go.

“Q. You don’t know whether the wires crossed one another or not?

“A. I couldn’t tell that. I know they were hitting one another, or they would not make that display. I couldn’t tell what wires they were.

“Q. The city has more wires than one on that street?

“A. I couldn’t say; I don’t know.

“Q. You don’t know what wires were in contact?

“A. No; I do not.”

It would serve no purpose of value to the profession to set out at large the testimony contained in the record upon this point. It is sufficient to say that, when given its greatest probative force, it falls short of showing affirmatively either one of two essentials: (1) That the defendant’s current was the only deadly one upon any of the wires within the city of Ypsilanti at the time of the accident; or (2) that defendant’s trolley wire actually came in contact with the city wire or any intermediate wire communicating with the city wire which carried the current a half mile distant to the corner of Spring and Bell streets, there to be communicated again to a telephone wire, which was down; thence to the plaintiff’s intestate. The most that can be said of the testimony introduced on behalf of plaintiff is that it is possible that all these contingencies occurred. Under such circumstances, it is the duty of the court to direct a verdict for the defendant.

It is elementary that the burden is upon the plaintiff to establish by competent evidence not only the negligence of the defendant, but also to establish a direct connection between such negligence and the injury. The plaintiff does not sustain such burden by showing that the injury may have resulted from the defendant’s acts, but he must at least show that that fact follows as a reasonable inference from the basic facts and circumstances. Whenever it is necessary to aid such proven basic facts and circumstances by conjecture, plaintiff must be held to have failed in his proof. Byerly v. Light, Power & Ice Co., 130 Mo. App. 593 (109 S. W. 1065); and Cressler v. Paper Co., 181 Mich. 422 (148 N. W. 176).

In this view of the case it becomes unnecessary to consider the evidence of defendant’s negligence. It may be pointed out that nowhere in the record is it shown, even approximately, at what time defendant’s trolley wire fell. It is therefore impossible to determine the lapse of time between the falling of .the wire and the receipt of the injury by plaintiff’s intestate, an element necessary upon which to base defendant’s negligence upon the ground that it had constructive notice of the faulty and dangerous condition of its equipment. It is not shown that defendant had any actual notice of the condition prior to the happening of the accident.

The judgment is affirmed.

McAlvay, Kuhn, Stone, Ostrander, Bird, Moore, .and Steere, JJ., concurred.


source: Caselaw Access Project

license: Public Domain

text:
    JUNTUNEN v. QUINCY MINING CO.
    1. Master and Servant — Mines and Mining — Negligence—Personal Injuries — Saee Place.
    Where an employee of defendant mining company was engaged in working in the mine as a member of the repair crew and after one of the shafts had been crushed in and needed repairs the crew, including plaintiff, attempted to bar down the rock and a large quantity of rock fell into and through the shaft, striking the plaintiff, the danger was incident to his line of employment and plaintiff was not entitled to recover for his injuries: as a part of the crew who were engaged in making safe the place which was obviously not safe at the time he was working in it, plaintiff assumed the risk.

    2. Same — Fellow-Servants.
    Members of the repair crew working with plaintiff and making the shaft safe were not vice principals but fellow-servants, and defendant was not chargeable with their negligence, in failing to protect him against the fall of material, by supporting the wall and roof of the level with timbers.

    3. Same — Promise to Repair — Assumption op Risk.
    Although it is plaintiff’s claim that his superior servant, or shift boss had assured him that the place in which he was working immediately below the forty-seventh level of the mine, where the crew were timbering, was safe and the timbering would be done so as to remove the alleged defect or danger in the level on the following day, and plaintiff remained at work in reliance upon this promise, held, that he assumed the risk of his injury because the danger was incident to his employment and it was obvious that the place was in a dangerous condition.
    Error to Houghton; O’Brien, J.
    Submitted November 16, 1914.
    (Docket No. 54.)
    Decided March 17, 1915.
    Case by Emil Juntunen against the Quincy Mining Company for personal injuries. Judgment for plaintiff. Defendant brings error.
    Reversed, new trial denied.

      Hanchette & Lawton, for appellant.

      Le Gendre & Driscoll, for appellee.

       Upon the servant’s assumption of risk from changing condition of excavations in a mine during the progress of the work, see note in 19 L. R. A. (N. S.) 352.

       As to whether servants in a mine are fellow-servants, see nota in 50 L. R. A. 437, 461.

   Brooke, C. J.

The plaintiff, a native of Finland, was injured in defendant’s mines through the fall of a piece of rock. The injury sustained was a broken leg. Plaintiff had resided in this country about 11 years and had worked for the defendant in various capacities practically all the time. For more than a year and a half prior to his injury he had worked in a repair crew in charge of one Savinini. The record discloses that shaft No. 2 had for a very considerable distance been crushed in and rendered useless. It became the duty of the repair crew, of which plaintiff was a member, to take out the old timbers of the shaft and the rock which had fallen and pressed in upon the shaft and to replace the old timber by new ones. At the time of the accident this work had progressed from the forty-first down to and perhaps a short distance below the forty-seventh level. After the happening of the accident to the plaintiff he was laid up for a period; and, as soon as the broken leg was healed, resumed his work with the defendant company, and continued therein for a period of two years and a half before he brought his suit. The accident happened on January 29, 1910, at which time the declaration charges that the plaintiff was at work in the shaft at a point on the ladder road in said shaft about 20 feet below said forty-seventh level (when) “a large and dangerous quantity of rock or ground fell, rolled, and descended, to wit, out of said forty-seventh level near said shaft and into and through said shaft and to, against, and upon the plaintiff and struck him with great force and violence,” causing the injuries to plaintiff of which complaint is made. The declaration charges the defendant with negligence in not providing plaintiff with a safe place to work, and that it

“negligently allowed, permitted suffered, and caused said aforementioned work of taking out and_ putting in said timbers to be carried on and continued under and by a method and system under which reasonable provision was not made to protect plaintiff from injury from falling, rolling, and descending rock while engaged in and about the performance of Ms duties and going to and from Ms said -working place, and failed and omitted to adopt, use, and employ any reasonably safe, suitable, and proper method and system of doing said work; and it wrongfully, carelessly, and negligently failed and omitted to timber up and secure divers places in said shaft and mine from which rock and ground might and could fall to plaintiff’s injury including, to wit, the sides of said shaft and portions of said forty-seventh level near said shaft; and it negligently allowed, permitted, and suffered each and all such places tó be and remain untimbered and unsecured; and it wrongfully, carelessly, and negligently failed and omitted to properly or sufficiently inspect and examine such last-mentioned places and was negligently uninformed as to the safety and condition of such last-mentioned places on and before the day of the occurrence of said injuries; and it wrongfully, carelessly, and negligently failed and omitted to bar down and remove or prop up and secure, and allowed, permitted, and suffered to remain at such a place and condition as to be liable to at any time cause or occasion plaintiff’s injury.”

In the work of repairing it was necessary not only to replace the timbers in the shaft itself after taking away the fallen rock, but to secure the mouths of the crosscuts at the various levels. On the day in question, a part of the crew, having removed the rock during the shift at the forty-seventh level, had prepared to erect a “set” of timbers in the crosscut at the forty-seventh level about 10 feet from the shaft. Uprights had been erected and the timber to be used as a “cap” lay upon the level. This timber, which was 15 feet long, had to be cut to 13 feet in order to fit. When the work had reached this stage, the shift boss directed the men to stand back. The order seems to have been generally obeyed by the workmen at that point, though plaintiff claims that he heard no such order. Plaintiff up to the noon hour had been working at a point about 20 feet below the forty-seventh level. He describes the accident as follows:

“At the time I was hurt, I came up from the place where I was working and was picking up tools. My duties was taking old sets away all day, out from the shaft. I am not quite sure how many men were working with me, but I think there were about nine that day. My boss was Fred Pascoe and Charley Karpinnen. Pascoe’s position was to have the work done and look after it. His job was called shift boss. Karpinnen was the timber boss. They both had a right to order me what to do. I had to do what they told me. We knew what work to do when Fred Pascoe, or either of them, told us. I was receiving $54 at that time for 26 shifts. Before I was hurt my health was good. I remember what day of the week it was that I was hurt. It was Saturday. I was day shift that week. They were working three shifts in the shaft there at that work I was at; three eight-hour shifts each day. I was at the forty-seventh level at the time I was hurt. I can’t say exactly what time of the day it was when I was hurt, but it was near 3 in the afternoon. At the time I was hurt, I had a pick in my hand and some rail spikes. I was about to put them down on the other side of the shaft. Then we were to go up, go home. We were through work at that time. Our shift ended at 3 o’clock in the afternoon. The next shift just came down. As soon as we would go up they would take our places. We would get down to the forty-seventh level, up and down to our work in the skip, excepting the day shift when there was a truck. The truck ran right through the shaft and carried the men up and down. That is the way the men always went to and from their work. We went from that very level on this skip when we went up. It was dark down there in the mine. The men had sunshine lamps, little lamps they carry in their hats. Except for those lamps there was no light in the shaft. When I was hurt, I was at one of the usual places where the men would go after the end of the shift from that level.

“A stone fell down and struck me on the right leg. Both bones were broken. The stone fell from the mouth of the crosscut from the side, with reference to the forty-seventh level from the first corner where the crosscut goes. The crosscut runs out from the shaft; it goes straight north there. The shaft in-dines. While we were working there, the captain and timber boss were with us. Sometimes they were a little further away. The timber boss was working with us. The shift boss didn’t do anything. He was just looking on superintending the work. The shift boss would tell us how the work was to be done. The shift boss and. timber boss were there on the Saturday that I got hurt. I heard several times that we would leave the place where this rock fell from for extra work, we would not bother with that now. I heard both the timber boss and shift boss talking about this place. They said it was all right for today; we would fix that another time. I suppose they examined the place, and, as they were in a hurry with the shaft, they left it for Sunday to be fixed up. * * * It was talked of Saturday, to the captain and timber boss. They said it was good at this time, and it would be fixed tomorrow. That meant the Sunday following that day I was hurt, next day. They talked of the very place from which the stone came, the stone which fell and hurt me. They told me to go to work under it, down the shaft. I relied upon their statements when they said the place was all right and would be fixed. I went to work and stood down there because I relied on -it. That wasn’t my duty to inspect such places as that. It was the duty of the captain and timber boss. * * *

“Q. And would you have continued to work down there if they had not made those remarks that the place was all right and they would fix it up on Sunday? * * *

“A. No, certainly I wouldn’t have altogether done it if they hadn’t said so. * * *

“Q. Where were you with reference to the place from which the rock which hurt you fell?

“A. I was right opposite the level in the shaft.

“Q. And when you were there, where was the place from which the rock fell, with reference to you?

“A. It was up, higher up from where I was.

“Q. Where did you come from when you came to that place where you were when you were hurt?

“A. I came from lower in the shaft.

“Q. How far down from that place was the place where you had been working?

“A. At least 20 feet, but I couldn’t say exactly.”

On cross-examination he gave the following testimony :

“I worked for a long time under Savinini in the repair gang before this accident, longer than a year and a half. When I worked in that gang, we did different kinds of work. We opened up old levels, took up tracks. In a way, we did some timberman’s work, but very little. From Savinini’s gang I went into the shaft in the timber gang, in November, 1909. From this time on till this accident happened, I was repairing this No. 2 shaft. We had to retimber that shaft for a long distance. We would have to remove loose rock. We retimbered the place up where this rock came out of. The shaft wouldn’t have stayed open at all. We had to put sets of timbers to keep the shaft open so the skips could run. In many places we repaired the levels for a little ways' close to the shaft, so that the trammers could go out on the levels and bring the rock out and dump it in the skips. On this forty-seventh level, from there down, there was no mining being done, no hoisting of rock in that shaft at that time. There were some miners working lower down than that at that time, too; but they, I presume, were bringing the other shaft up. They weren’t working or going up and down this No. 2 shaft at that time, not lower than that. There couldn’t any miners or trammers work in that shaft, because it was closed. I was one of the men that was working there, and had been there for some time to retimber this shaft and those levels close to the shaft so that work could start up again. I was at that time what was known in the mines as a ‘timberman’ or a ‘shaft timberman.’ Up to the time of this accident to me, we had timbered and done work in that shaft from the forty-first level down to the forty-seventh level. We left a little of the old timbers in the shaft; mostly new timbers were put in. In putting in new timbers, some sleepers were put in the bottom, clear across the shaft, about every five feet; the distances weren’t all alike. I never measured how long these timbers were. The caps would be about 16 feet long. A cap is a square timber put on top of some other timbers to hold up the loose or bad hanging. We cannot put up caps until you put up the side timbers or legs or posts first. In timbering a shaft there are long distances that we didn’t place the sleepers in first on the foot wall at all. We put the sleepers about five feet apart. Then we put the runners to put the rails on. The sleepers and runners are about a foot square. Beside of each sleeper we put a post or timber going up to the hanging to hold the caps. That makes two skip roads in the shaft. Outside of the skip road and outside of these posts to go up, we build a ladder road. At No. 2 shaft the ladder road was on the north side.

“Q. Now at the levels, these different levels that you fix, you put in a platform, or platforms, of wood and timbers?

“A. On the levels?

“Q. At the different levels there is a platform, or a plat as we call them, of wood and timbers, all round, so that people can stand on those without falling down the shaft?

“A. Yes.

“Q. And then, if the levels are broken in and need posts and caps, you put those in there, near the shafts ?

“A. Yes.

“Q. Now, before you worked in this timber gang, you had worked, you say, for a couple of years in the-repair gang with Savinini?

“A. Yes.

“Q. And the duties of that gang was to go where there was any bad places that needed caps or timbers, to fix it, make it safe?

“Mr. Driscoll: Objected to as immaterial. I don’t see what the purpose is. I don’t see the materiality,

“The Court: Take the answer.

“A. Yes.

“Q. That is, to make places safe so that the workmen won’t get hurt; no rock would fall on them.

“Mr. Driscoll: May I have an exception?

“The Court: You have an exception to every adverse ruling.

“Mr. Driscoll: We have a general objection to this line of questioning.

“The Court: Make your objection, but the exception follows. You have an objection to all this line of examination on the ground it is immaterial, and an exception follows.

“A. Yes, that is the kind of work we did.”

At the conclusion of plaintiff’s proofs, a motion was made to direct a verdict for the defendant upon the following grounds:

“I wish to move the court, under the record as made on the declaration, that the court direct a verdict for the defendant on the ground that the plaintiff has failed to establish a case of negligence against the defendant. In the first place, it appears that the plaintiff was a timberman and a mémber of a gang of men to repair shafts in places that needed repair, and to make a safe place for other workmen. That the furnishing of a safe place, in order to be furnished, must be done by work such as this work as this plaintiff was hired to perform, and that the company is not required to furnish him with a safe place, or there is nothing to show that he was furnished any other or different place than where he ordinarily would be sent to repair. So that the dangers that he had to encounter would be the ordinary dangers that grew out of the employment of a timberman. And it also appears from the testimony these dangers were known there and were appreciated by the men; that the liability of being injured by a rock was apparent to all, and that the accident, as far as the record now appears, although there is some conflict in it, is an accident pure and simple that might happen under like circumstances at any time, and under this testimony the plaintiff ought to be held, it seems to me, to assume the risk of the danger that was there.

“There is another ground. That the court should find as a matter of law there is a complete variance between the declaration and the proofs. This man wasn’t injured while he was at his working place, as he claims, down 20 feet to 50 feet below that level, and that the assurances, or whatever is claimed in that regard, of protection and safety at that place where he was at work, he was not hurt there.”

“The Court: As I see the case now, I think it is a case for the jury. Therefore the motion will be denied, and Mr. Lawton has an exception.”

The court charged the jury, in part, as follows:

“If it was part of the duty of the shift boss to look after the safety of the places where the plaintiff was required, expected, and permitted by defendant to work, pass, and be while engaged in and about the performance of his duties and going to and from his work and working place and to warn him of any dangers which existed in such places, and if the shift boss ordered the plaintiff to work, pass, and be in any such place without warning him of the existence of any danger therein, or if the shift boss saw plaintiff in any such place while plaintiff was engaged in and about the performance of his duties or going to or from his work or working place and did not warn him of any danger there or order him out of the place, that would amount in law to an implied assurance on the shift boss’ part that the place was a reasonably safe and proper place for the plaintiff to be in.

“If an assurance that the place was safe or all right was made or given by the captain or shift boss to the plaintiff and rightfully and reasonably depended and relied upon by the plaintiff, under the circumstances just stated, plaintiff would have the benefit of such assurance no matter how the place happened to be or come to be in the condition in which it was.

“If the condition of the place where the rock which injured plaintiff fell from was called to the attention of the captain or shift boss, and fear or doubt was expressed to him by one or more of the workmen as to the safety of the rock or ground there, and if, after his attention was so called to the place, the captain promised or assured the plaintiff or the wprkmen generally that he would have the place fixed or secured, or that it would be fixed or secured, and if plaintiff heard and in good faith depended and relied upon such assurance or promise, then defendant itself would assume the risk of any injury to the plaintiff due to the rock falling away from that place for such a reasonable length of time after the making of such promise or assurance as you find from the evidence that the plaintiff reasonably might and could reasonably depend and rely upon such promise or assurance, reasonably expecting fulfillment thereof, and if, under such circumstances, such assurance or promise was made by the shift boss or captain and depended and relied upon by the plaintiff, and if plaintiff’s injury occurred while he was at the place where his injury, occurred, reasonably depending and relying upon such assuranee or promise and reasonably expecting the fulfillment of. the same, then the plaintiff will be entitled to your verdict, unless the danger of remaining there or being there was so open, obvious, glaring, and imminent that a reasonably careful and prudent person in plaintiff’s situation would not have been or remained there, under the same or similar circumstances.

“If such an assurance or promise was made to the plaintiff and relied upon by the plaintiff under the circumstances just stated, plaintiff would have the benefit of such assurance, no matter how the place happened to be or came to be in the condition in which it was.

“If such an assurance or promise to fix or timber the place was so made and relied upon, it would commence to operate to the plaintiff’s benefit at once, and the plaintiff would be entitled to the benefit of such promise or assurance from the time it was made, until a reasonable time for its fulfillment had elapsed.

“If you find from the evidence that at the time of his injury plaintiff was in good faith and relying upon of obeying either an assurance of the safety of or a promise to fix or timber the place from which the rock which caused his injury fell, or upon an order to remain at work in the shaft, given by the captain or shift boss after the workmen, or some of them, called his attention to the condition of the place from which such rock fell and expressed fear or doubt as to its safety, and you further find that an ordinarily careful and prudent person in plaintiff’s situation in the exercise of ordinary care would have been or remained where plaintiff was injured at the place where he was injured, under the same or similar circumstances, then I charge you that plaintiff was not guilty of any contributory negligence in remaining there, and you should so find by your verdict. * * *

“The plaintiff did not by his contract of employment assume any but the ordinary risks of his employment. The ordinary risks of his employment are those which inhere in the service after reasonable care, skill, and diligence has been used and exercised in and about the performance of all of the duties which the defendant owed the plaintiff as his employer. All other risks are extraordinary risks which plaintiff did not assume by his contract of employment. Plaintiff did not by his contract of employment assume the risk of any negligence on the part of the defendant or on the part of those employed or appointed by defendant to perform its nondelegable duties towards the plaintiff.

“If you find from the evidence that plaintiff’s injury occurred in consequence of a risk not ordinarily incident to his employment, then I charge you that the burden of proof is upon the defendant to show by a fair preponderance of the evidence that the plaintiff knew of and appreciated the risk of his injury in time to have avoided it, if he desired to do so, before his injury occurred, and in such case, unless the defendant has maintained the burden of proof in this respect, you should find that plaintiff did not assume the risk of his employment.

“If the place from which the rock which caused his injury fell was in an unsafe condition and the plaintiff had knowledge of that fact, and he or somebody else in'his presence and hearing called the attention of the shift boss and timber boss to the condition of the place, and if the shift boss or timber boss, after his or their attention was called to the condition of the place, ordered the plaintiff or the men generally including the plaintiff, to do the work which plaintiff was doing at the time his injury occurred (if he was in fact doing work at such time), and if plaintiff at that time was doing such work as it was so ordered to be done and at a place where it was so ordered to be done, then the plaintiff would not assume the risk of so doing unless the danger was so obvious that an ordinarily careful and prudent person in plaintiff’s situation in the exercise of ordinary care would not have incurred it under the same or similar circumstances.

“If, while plaintiff was working below the forty-seventh level or in or about the shaft, other workmen were engaged in or about the timbering or securing the place where the rock which caused plaintiff’s injury fell from, or doing any other thing to make that place safe for plaintiff and others to work under or near, then such workmen while so engaged, no matter who they were, would not be fellow-servants of the plaintiff, but would be vice principals of the defendant, and the defendant would be responsible to the plaintiff therefor, if any of such workmen, while so engaged, were guilty of any negligence (either of commission or omission) and such negligence was the proximate cause of plaintiff’s injury.”

The plaintiff testified in part as follows:

“In a way I had experience in sounding walls or timbering places in the mine, inspecting them. I barred down loose, quite a lot, before I was hurt.”

And again on cross-examination:

“I went into the shaft in the timber gang in November, 1909. From this time on till this accident happened, I was repairing this No. 2 shaft. We had to retimber that shaft for a long distance. We would have to remove loose rock. We retimbered the place up where this rock came out of. The shaft wouldn’t have stayed open at all. We had to put sets of timbers to keep the shaft open so the skips could run. In many places we repaired the levels for a little ways close to the shaft, so that the trammers could go out on the levels and bring the rock out and dump it in the skips.”

The work upon which the gang of which plaintiff was a component part was engaged at the time of the accident was erecting a “set” to secure the wall and roof a short distance from the shaft on the forty-seventh level and was a part of the general work of repairing then going forward. It was strongly urged on the part of the defendant that there was such a variance between the declaration and the proofs as entitled the defendant to a directed verdict. This variance consisted in the fact that, while the declaration charged that the plaintiff was injured while at his work in the shaft some 20 feet below the forty-seventh level, the injury, as a matter of fact, occurred upon the forty-seventh level some few feet distant from the shaft. We find it unnecessary, however, to pass upon this phase of the case.

We are convinced that a verdict should have been directed in favor of the defendant upon the ground that the undisputed testimony showed that the plaintiff at the time of his injury was engaged with the other members of the timbering crew in making repairs to shaft No. 2 for the purpose of making that safe which had theretofore been rendered unsafe through the crushing in of the shaft. It was obviously a part of the plaintiff’s duty, and that of his fellow-laborers, to bar down and carry away such rock as was loose and dangerous in the vicinity of their labor. This he himself had frequently done, and it was well known to him that the place was not a safe one. The danger of injury from falling rock in the process of making the place safe was one that he must be held to have assumed. Nor can it be said that the other members of his crew stood in relation to him as vice principals.

We have so recently determined this question in this court that an elaborate citation of authorities is unnecessary. See, however, Petaja v. Mining Co., 106 Mich. 463 (64 N. W. 335, 66 N. W. 951, 32 L. R. A. 435, 58 Am. St. Rep. 505), and Andrews v. Mining Co., 180 Mich. 72 (146 N. W. 394).

The judgment is reversed, and, as it is obvious that no different case can be presented on another trial, no new trial will be.granted.

McAlvay, Kuhn, Stone, Ostrander, Bird, Moore, and Steere, JJ., concurred.


text:
    MOELLER v. NOTTER.
    Advancement — Gift—Contracts—Failure, of Consideration.
    Where plaintiff executed a writing setting up the fact that she had given to her daughter a portion of her maternal inheritance and that the daughter should pay interest on the amount during the lifetime of the giver, and it appeared from the testimony that it was later agreed between the parties that the mother should live at the daughter’s house and should pay for her keep, and, that without sufficient reason, she later attempted to rescind the entire arrangement and brought suit to recover the nine hundred dollars advanced, in the absence of any evidence of fraud in bringing about the gift defendant was not liable on the theory of rescission and the trial court should have granted her motion to direct a verdict in her favor.
    Error to Huron; Beach, J.
    Submitted November 22, 1914.
    (Docket No. 116.)
    Decided March 17, 1915.
    Assumpsit by Fredrika Moeller against Lena M. Notter for the recovery back of money paid to the defendant. Judgment for plaintiff. Defendant brings error.
    Reversed.

      De Foe, Hall & Converse, and Paul Woodworth, for appellant.

      Alfred H. Sauer and George M. Clark, for appellee.
   Brooke, C. J.

The plaintiff at the time this action was tried, in 1914, was 79 years of age. She was born and educated in Germany and could read and write the German language. She had lived in this country nearly 50 years and spoke English imperfectly. She married and settled down in Huron county at an .early day and became the mother of five children (one son and four daughters). With usual German thrift, she and her husband accumulated some little property, consisting principally of a farm in Huron county valued, at the time of her husband’s death in 1905, at about $6,000. The husband appears to have died intestate. A settlement of the estate was arranged in some manner, as the result of which Henry, the son, took the homestead farm and gave to his mother a mortgage for $1,500 in payment of her interest therein. The defendant Lena M. Notter, one of the four daughters, took a 40-acre farm adjoining a farm Mrs. Notter at that time owned, and gave her mother a mortgage for $580. The record does not disclose what provision was made for the other three daughters in the division of the paternal estate. After the death of her husband, plaintiff continued to live on the homestead with her son some months, and until December, 1905. A few weeks prior to the last-named date, the defendant and one of her sisters petitioned the probate court for the appointment of a guardian for their mother, the plaintiff. The plaintiff, however, having concluded to make her home with the defendant, no hearing was had on this petition and the proceedings were allowed to lapse. At the time plaintiff went to live with defendant, her daughter, she was possessed of some notes, in addition to the mortgages already mentioned, so that at that time her entire estate amounted to upwards of $2,600. In the year 1907 plaintiff’s son Henry filed another petition in the probate court for the appointment of a guardian for his mother, the plaintiff. A hearing was had on this petition and a guardianship was denied by the probate court. Upon the determination of this issue, plaintiff caused a will to be executed, by the terms of which she bequeathed to her daughter, the defendant, the sum of $900, and a like sum to another daughter. The other terms of the will are not disclosed, and are unimportant. Matters ran along with affairs in this condition until February 24, 1909, a little more than three years after the date upon which plaintiff had taken up her residence with defendant. Upon that' day the plaintiff wrote with her own hand and in German script the following statement:

“Pigeon, February 24, 1909.

“Huron County, Mice.

“A Certificate.

“I, mother, wife of Henry Moeller, give my legitimate, daughter from Henry Moeller, wife of Mathias Notter, give now while I live, her maternal inheritance $900.00, but she has to pay me interest for this money as long as I live.

“Then I give my son-in-law, Mathias Notter, 200. He has favored me often.

“Then I give my grandson, Lawrence Notter, $100. This I do of my own accord, nobody has moved or influenced me to do this.

“Have yet my full understanding.

“Signed and sealed this 24th day of February, 1909.

“Fredrika Moeller.

“In presence of:

“Ernest Clabuesch.

“Abner J. Ramseyer.”

Upon the same day she went with her grandson, a son of defendant Lawrence Notter, to the bank at Pigeon. She there asked Mr. Merrick to take her acknowledgment to the instrument, which he did, after some conversation with her, in the course of which she declared that she understood the meaning of the same and that it was her free act. Upon the same day she sold and assigned to the bank at Pigeon the $1,500 mortgage which she had up to that time held upon the homestead farm, receiving therefor the full sum of $1,500. This money she disposed of by giving to her daughter, the defendant, $900; to her son-in-law, defendant’s husband, the sum of $200; to her grandson, Lawrence Notter, $100; and to her said grandson the further sum of $300, taking his indorsed promissory note therefor. Thereafter she continued to live in the household of her daughter, the defendant, for nearly three years, or until January 2, 1912. During that period she made no complaint as to the treatment she received from the defendant or other members of her family, and none is disclosed by the record, with, perhaps, one or two insignificant exceptions. After leaving defendant’s home in January, 1912, she lived for a time with her son Henry, and later with another daughter. Almost immediately after leaving she caused her declaration to be filed in this suit. In the first count of said declaration she charges that said $900 was procured from her by defendant through fraud. To this count is added the common counts in assumpsit.

Upon the trial she gave testimony tending to show that, after she had paid the $900 to her daughter, the defendant, her treatment had not been so good as formerly. When asked to specify the particulars in which she had been ill used, she charged that her daughter had latterly not taken her to church as frequently as formerly, that she had been asked to procure and use an individual drinking cup instead of the family dipper, and that, when her daughter became ill with rheumatism and a ruptured vein in her leg, she, the plaintiff, had been compelled to occupy a room upstairs instead of the one she had occupied upon the ground floor. Aside from these charges, which, are apparently trivial in character, the record is silent as to any ill treatment of plaintiff by defendant. Upon the other hand, there is much testimony in the record given by neighbors and friends of the parties to the effect that plaintiff was well treated and was apparently happy and contented during the six years she remained under the roof of defendant. The court eliminated the question of fraud in his charge to the jury, saying:

“There was some skirmishing between the attorneys, when the trial was commenced, as to the legal aspects of the case as set out in the pleadings. On a review of the pleading and what it was proposed to prove, the court cut out the question of fraud in this case, as a basis for any recovery, upon the character of the declaration as it was framed, and, after hearing the testimony, the court is confirmed in that theory. If I had permitted the question of fraud, I should have taken it away from you at this time, as a matter for recovery.”

The case was, however, submitted to the jury under the following instructions:

“The issues in this case are these: The plaintiff asserts, and it is undisputed, that she paid over to Mrs. Notter $900. That, at the time the $900 was paid over, it was paid over with- the understanding and agreement that Mrs. Moeller was to have a home with the Notters during her life. That that was the consideration for the giving of the $900 to Mrs. Notter. Plaintiff asserts, again, that the consideration has failed in this regard.

“In an agreement of that character, between relatives for support or maintenance or furnishing a home, the law implies and adds to the agreement a simple bare agreement, the fact that the care shall be a reasonable kind, suitable to the condition, age, situation, and characteristics of the party to be taken care of.

“It is the claim of the plaintiff that the agreement was violated by not furnishing care suitable to her condition and her age, and that she was warranted in leaving and attempting to recover back her money for a failure of consideration, want of consideration.

“The defendant asserts, in her behalf, that there was no agreement as a foundation or consideration for the payment of the money; but that it was advanced to her as her inheritance, apportioned out to her at that time in actual cash, as her share, or what the old lady intended to give her of her estate, without promise or agreement or any consideration to be returned for the same, simply given as a matter of love and affection, and as part of her coming inheritance, advanced and given to her at that (time) to avoid trouble in the future between the various heirs.

“Now, as a matter of law, a parent may make advancements to his children or her children, and if that is all there is of it, that it is simply advanced and so regarded, that cannot be recovered back, simply because the parent may change her mind or change her state of kind (mind) and affections towards the party to whom it was given. It is a gift among relatives, and for a good consideration — affection. It cannot be recovered back.

“So those are the issues in this case, gentlemen. Was there an agreement at the time the money, preceding the payment, or at the time of giving the money over to Mrs. Notter, that she should have a home there during^ her life? If there was, has that agreement been violated in spirit and in substance as to the conduct of Mrs. Notter and the family towards Mrs. Moeller? If so, she is entitled to recover her money back. The phase the case has taken, the aspect it has taken, it is practically a rescinding of the contract. Defendant might have set off here, if she saw fit, against the claim, the proportionate value of her services to Mrs. Moeller, during the time she remained; but there is no claim of that kind in this case, and the matter stands practically as though no service had been rendered or claimed for on the part of the defendant.

“Now, as I say to you, the other question is: Was the money turned over simply as a gift by the mother to the daughter to give her her inheritance, anticipating her death and to avoid trouble? If so, it cannot be recovered back?”

At the close of all the testimony, defendant requested the court to charge the jury as follows:

“(1) Under the evidence in this case, your verdict should be for the defendant, no cause of action.

“(2) It appears from the undisputed evidence in this case that this $900 was given by the plaintiff to the defendant as a gift or advancement of her inheritance, and, in the absence of fraud of the defendant in procuring its payment, it is valid and binding on the plaintiff.

“(3) I charge you that there is no evidence in this case of fraud on the part of the defendant, inducing payment of this money.

“(4) Even though you should find an agreement' on the part of defendant to provide plaintiff with a home, and there was subsequently a breach of contract, there is no evidence of any damage suffered by plaintiff.”

It was and is the claim of the defendant that the record contains no testimony to the effect that at, or immediately before, the time the $900 was paid by plaintiff to defendant, there was any conversation between plaintiff and defendant tending to establish a contract of any sort between them, and that therefore, instead of submitting this question of fact to the jury, the court should have directed a verdict in favor of defendant as requested to do.

On direct examination the plaintiff testified as follows:

“Q. Was there anything said by Mrs. Notter about where you should live after you have given her this money?

“A. She was to stay there with her.

“Q. Was there anything said about how she was to be treated after she gave them the money?

“A. She says that she thought they would use her good; instead, they were worse — unkind to her.

“Q. Was there anything said by Mrs. Notter as to how long you could live with her?

“A. She says no, she says that she wanted to go away at that time, and Mrs. Notter took her back in again when she was outside and told her to stay there. * * *

“Q. Before you gave Mrs. Notter the money, did you have a talk with her as to where you were to live and how you were to be treated after you gave her the money?

“A. She says she can’t say. * * *

“Q. When did you have the talk with Mrs. Notter that you were to have the lower room?

“A. Right away after she came there.”

On cross-examination plaintiff gave the following testimony:

“Q. And that was understood. You agreed about that before you went there to stay with Mrs. Notter; you talked about that?

“A. She says they kind of made out among themselves what they wanted to charge, and she says she was willing to pay whatever they asked.

“Q. And that was when you first went there?

“A. Yes, sir.

“Q. This talk about boarding with Mrs. Notter and paying your board was at the time you left Henry’s and went to her house; that is when you talked about it?

“A. Yes, she said it was talked and understood.

“Q. And that was the time that Mrs. Notter told you you could live there as long as you wanted to?

“A. As long as I lived.

“Q. Now, you hadn’t any other talk with Mrs. Not'ter about living there as long as you lived after that and before you got the money from the bank, had you; you didn’t have any talk about that again, did you?

“A. She says no, she didn’t have any talk; they didn’t talk it over again; but she says she didn’t want to stay any longer; they were rough to her.”

Defendant and her son both testified that there was no conversation or contract entered into at the time of, or immediately before, the payment of the money. We think it clear, from a consideration of the plaintiff’s testimony above quoted, and after a careful examination of the entire record, that there is no evidence in the record tending to show that at the time the money was paid any contract was entered into between the plaintiff and the defendant to the effect that the plaintiff should have a room with her daughter, the defendant, for the remainder of her life. However, an arrangement was entered into at the time plaintiff took up her residence with defendant. That arrangement was that plaintiff should pay for her board while living with defendant, and this she did from the moment she entered defendant’s house until the day she left, and it was at that time doubtless understood and agreed that plaintiff should spend her remaining days with defendant.

Taking the testimony as a whole, and the situation of the parties as disclosed by the record, and giving proper weight to the declaration made by plaintiff in her own handwriting and in a language which could not be read by either her grandson or the notary public who took her acknowledgment thereto, we are convinced that the payment of the $900 by the plaintiff to defendant was a gift inter vivos, or an advancement, made by the mother to her daughter exactly in consonance with the terms of a will she had made a .year or two before. That this payment was made for the purpose of forestalling possible complications after her death, we have no doubt.

After the plaintiff left the residence of her daughter, the defendant, and fell under the influence of one or others of her children, this suit was launched.

We are of opinion that the motion for a directed verdict made at the close of the testimony should have been granted.

The judgment is reversed, and a new trial ordered.

McAlvay, Kuhn, Stone, Ostrander, Bird, Moore, and Steere, JJ., concurred.


author: Steere, J.

text:
    MESICH v. TAMARACK MINING CO.
    1. Master and Servant — Mines and Mining — Trammers — Fellow-Servants — Personal Injuries.
    In. an action brought by an employee of a mine known as a trammer, whose work was to shovel out ore or dirt as it is mined and to deposit the same upon cars, for injuries which he sustained by the alleged negligence of another employee, described as a block-holer, whose work required him to break up large masses or blocks of ore and roll or force them down the stopes or inclines to the levels of the mine, where they could be moved, plaintif£ assumed the risk of the negligence of such co-employees and was not entitled to recover for the failure of one of them to warn him of impending danger from a piece of rock which was rolled down from the stope.

    2. Same — Assumption of Risk.
    The servant assumes all the usual risks of his employment, among which is the risk that a fellow-servant will sometimes be careless and injuries will result. The master is merely required to be reasonably prudent in choosing servants and in retaining them in his service after unfitness or negligence has disclosed itself or been communicated to him.
    3. Warning Servant — Nondeeegable Duties.
    Negligence of the servant in failing to give signals to his fellow-employee is not negligence which involved defendant as for failure to perform a nondelegable duty; having engaged a competent block-holder to perform the duties connected with that employment the defendant had discharged its complete duty.
    Error to Houghton; Cooper, J., presiding.
    Submitted November 16, 1914.
    (Docket No. 52.)
    Decided March 17, 1915.
    Case by Mike Mesich against the Tamarack Mining Company for personal injuries. Judgment for defendant upon a directed verdict. Plaintiff brings error.
    Affirmed.

      Le Gendre & Driscoll, for appellant.

      Allen F. Rees (D. L. Robinson and Albert E. Petermann, of counsel), for appellee.

       On the question whether servants in mines are fellow-servants, see note in 50 L. R. A. 437, 461.

   Steere, J.

On May 23, 1910, while working as a “trammer” on the thirty-third level of defendant’s, copper mine in Houghton county, plaintiff was struck and injured by a large rock thrown down the incline of a stope at the foot of which he was shoveling by a block-holer named Reily, working about 30 feet above. Plaintiff claimed that the rock was sent down without warning. This Reily denied, claiming that he gave the customary notice before starting it. That issue of fact becomes immaterial here, and it is to be assumed for the purposes of this inquiry that the jury would have decided it in plaintiff’s favor, as a verdict was directed for defendant at the conclusion of plaintiff’s testimony on the ground that the block-holer was a fellow-servant of the trammer, and defendant could not be held liable for the negligence of a fellow-servant in not giving warning, although it might have been the practice amongst the workmen to do so. The controlling question presented, therefore, is the old and oft-repeated one of vice principal and fellow-servant.

While the common purpose and result of all activities of employees underground in a mine is to break and get to the surface the metal-bearing rock there found, in a large mine of this nature, with many men engaged, their immediate duties are apportioned, and each assigned to a particular kind of work, gen-, erally according to experience, skill, and intelligence. Descriptive names, suggested by their special duties, are used in designating them, such as captains, shift bosses, inspectors, timbermen, miners, barmen, blockholers, and trammers. The miners’, block-holers’, and trammers’ duties are closely connected in the particular that they are directly engaged in getting out the desired ore or rock, reducing it to a condition to be handled, and starting it toward the surface for transportation to the stampmill. Their work is most directly involved here. The miners work along the mineral-bearing vein between the foot and hanging walls, drilling, blasting, and breaking out, or down, the rock, ore, or “dirt,” as it is often termed, doing, as their name implies, the actual mining. Occasionally pieces of the material as blasted and broken out by the miners from the solid vein are not all reduced sufficiently fine to be readily handled, and some of the blocks or pieces of rock are so large that they block or clog the holes or openings between timbers where this broken material runs down the incline of a stope, or raise, to the level. The block-holers’ duties require them to break up and reduce to safe and convenient size, by blasting or otherwise, such large blocks or pieces of rock. During their hours of duty they go from one level of the mine to another in the territory assigned to them, following up the work of the miners, looking for and breaking up such pieces, and in connection with that work starting them, as well as other large pieces which can be moved without breaking, down the inclines to where the trammers can conveniently handle them, and at times when those duties are performed they pass down dirt or work the material towards the place of loading the cars to facilitate the work of the trammers. The trammers are common laborers who, working chiefly with shovels, load the rock into tram cars and push them out from the stope to where they are attached to cables which haul them to the shaft. In loading the cars they also at times, when conditions require, go up or back into the stope and pass dirt towards the cars.

The “stope” in a mine is an excavation made in removing the ore which has been opened up, or made accessible by shafts and drifts or levels. In this mine the levels were about 100 feet apart. Plaintiff was working in an old, untimbered stope on the thirty-third level, connected with No. 5 shaft east of the vein. The place in the stope where he was injured was about 300 feet long, and ran diagonally up to the thirty-second level. Between the upper or hanging wall and lower or foot wall was a distance of 23 or 24 feet. There were three or four upright timbers about 8 feet apart standing some 3 feet back of the tram track in the drift, but nothing else to prevent rocks rolling down the stope or raise to the drift where plaintiff was at work. The block-holers going through the different levels worked in pairs; the trammers worked together in irregular numbers according to convenience and necessities of loading. On the occasion in question plaintiff worked with two other trammers loading tram cars at the spot indicated.

Three witnesses were sworn, plaintiff, Reily, the block-holer who threw down the rock that did the injury, and another of the trammers, who gave evidence through an interpreter confirmatory, so far as material here, of plaintiff’s testimony. Briefly stated, as bearing upon the duties of the trammers and blockholers in that mine, and what each was doing at the time of the accident, plaintiff testified that his duties as a trammer were shoveling dirt or copper rock into a car which stood on the track running along the level where they were loading; that was the trammer’s business, and they were not allowed to spend any time looking around or after the place where they were working; that at the time he was hurt he was shoveling rock into the car at the footwall in the level, and the rock came down from the rise in the stope; that no one gave him any warning that it was coming, and he had no knowledge that there was any danger of its doing so; that a short time before the accident he saw the block-holers go up into the stope, and heard them say something to some of the trammers as they passed by, but he did not pay any attention, and did not know what they were doing up there; that he had no time to look, and did not look, because they had to get out at least 16 cars, and he was busy at his work; that he was not supposed to pay any attention to the block-holers before getting the warning from them, it being their duty to give the trammers warning when they threw down their material. He first saw the rock when it was a yard or two from him, and tried to escape, but it struck him on the leg, breaking or crushing his ankle and injuring him severely; that the block-holers, who were supposed to make it safe for the trammers and give them notice, came around once or twice a day, and, if there were any big rocks that the trammers could not move, would break them up by blasting if necessary; besides this, if they found any big rock in the stope, they would throw it down for the trammers, and they sometimes examined the hanging wall in place of the timbermen; “besides that, they would shovel some of the loose dirt down to the level once in a while, and that was 'part of their work; * * * help us by breaking big rocks or shoveling them down towards the level;” that sometimes the trammers themselves would go up and shovel the rock down if they didn’t have any dirt on the lej/el.

Reily, who was yet in defendant’s employ at the time of the trial, and, as stated in the brief of plaintiff, was called for examination under the statute, testified on this subject: That the trammers are hired to shovel rock into the cars and push them out where they are attached to the cable, having to hustle most of the time at their own work, and are not supposed to pay attention to anything else except their work. That witness'worked as a block-holer, which brought him in connection with the trammers right along on the different levels. That he knew practically all the rules and customs of the mine. As a block-holer he had to break up and throw down rock from the levels, stopes, and raises, and blast the rock where necessary, throwing the rock down where the trammers could get hold of it. When the block-holers were working above the trammers they are supposed to give the trammers notice when they are going to blast or throw down any rock. That duty of warning them of danger was imposed on the block-holers. That on the day plaintiff was injured, in the course of his duties as a block-holer witness went into the thirty-third level and to the stope, or raise, up from the level where the trammers were at work, accompanied by his partner, who since died. On going up there they found a large rock which they threw down. It was on the footwall, and they barred it off and rolled it over, giving the trammers warning before doing so, as was their duty. That such was the custom and rule of the company. That the trammers had a right to, and did, rely upon being given such notice under the rules and custom which there prevailed. That in going from level to level, breaking up these large rocks and sending them down, if during their shift they had nothing else to do, they were supposed to help the trammers pass down the dirt, which they did, and when they came back to this level the trammers did not have much dirt, so they went up and ran some down for them at their request.

We need spend no time on the question of whether these men were fellow-servants in the work at which they were engaged. It was manual labor, for the same employer, at a common employment. They were engaged not only in the same general business of mining, but in a similar line of work, handling the rock, after it was mined, in the course of getting it to the surface. While each had certain duties to perform in that connection, their work at times so interlocked that each did identically the same thing. The trammer and block-holer were more closely associated in the line of their duties than the trammer and miner; the block-holer’s services being intermediate and devoted exclusively to aiding in the work of moving the rock to the surface after it is mined. In Petaja v. Mining Co., 106 Mich. 463 (64 N. W. 335, 66 N. W. 951, 32 L. R. A. 435, 58 Am. St. Rep. 505), where the question of negligence on the part of the miners resulting in an injury to a trammer arose, the court said that, if it was the fault of the miner, “it was the negligence of a fellow-servant under the plainest rules.”

“Generally employees working in or about a mine, quarry, or other excavation are fellow-servants.” 26 Cyc. p. 1348, citing numerous cases.

In Schroeder v. Railroad Co., 103 Mich. 213, 215 (61 N. W. 663, 29 L. R. A. 321, 50 Am. St. Rep. 354), Justice Grant thus tersely states the situation in cases like the present, in apt language:

“The doctrine of nonliability for the negligence of a fellow-servant is so firmly established, and has been so frequently affirmed, in this State, that I deem it unnecessary to cite the authorities. The difficulty has always been in determining whether the servant whose negligence caused the injury was, under the facts of each case, the alter ego or a fellow-servant.”

And Justice Montgomery, in a concurring opinion, as to reversal, states the rule as to nondelegable duties of the master as follows:

“In general, we think the true test is whether the person alleged to be a representative of the master is engaged in the performance of an act which it is the duty of the master to perform for the protection of his employees, — such a duty as that of providing a safe place to work, and safe machinery and appliances ; exercising due care in the selection of servants engaged in the same employment; giving proper directions as to use of dangerous machinery by inexperienced employees; and the establishment of proper rules and regulations for the conduct of the business.”

This statement of the test follows the line pointed out by Justice COOLEY in Quincy Mining Co. v. Kitts, 42 Mich. 34 (3 N. W. 240), where it is said in that connection:

“The servant assumes all the usual risks of his employment, and among these is the risk that fellow-servants will sometimes be careless, and that injuries will result. All that can be required of the master in that regard is that his servants shall be prudently chosen, and that they shall not be retained in his service after unfitness or negligence has been discovered and has been communicated to him.”

In the instant case the only negligence, charged as a nondelegable duty not performed, is the failure of Reily to shout a warning when he himself was about to send down the rock, as by rule and custom it was his duty to do. He is shown to have been familiar with that rule, an experienced man well posted in the duties of his employment, and there is no evidence or claim that he was incompetent or had previously failed in this or any other duty.

Counsel for plaintiff cite in their brief certain authorities bearing largely on the question of duty to warn and give notice, several from other jurisdictions not altogether in harmony with the rulings of this court, and .say:

“From the foregoing authorities, and numerous others, it is clear that the law imposes the duty of making and keeping plaintiff’s place safe upon the defendant. But, regardless of that, it appeared by the evidence here that the plaintiff was relieved of that duty, and was prohibited from performing it by the defendant. This distinguishes this case from those in which the safe rule is held inapplicable. There can be no longer any doubt in this State that, ‘where a duty is assumed by the master, or is imposed upon him by contract, or is customarily performed by him, it becomes a nondelegable one’ ” — citing Baker v. Railroad Co., 169 Mich. 609 (135 N. W. 937); Scendar v. Copper Co., 169 Mich. 665 (135 N. W. 951); Oiva v. Mining Co., 178 Mich. 645 (146 N. W. 181).

The Baker Case was affirmed by a divided court on the theory that defendant violated a contract duty which decedent had a right to rely upon relative to cutting hose and chains on passenger trains. The quotation extracted from the case was taken from a text-book on Personal Injuries on Railroads. As the case was affirmed by an equally divided court, what was there said cannot be regarded as controlling precedent elsewhere. The Scendar Case involved purely a question of safe place and the danger from overhanging rock where plaintiff was at work. The danger was in the place itself, and not from some temporary and immediately dangerous thing which a fellow-workman might do resulting in injury because he failed to warn. That case was disposed of on the theory that it was in the first instance the duty of the defendant to make the place safe; that plaintiff had been assured that this would be done; and that the captain, shift boss, and others over him were designated as vice principals charged with the nondelegable duties to watch, inspect, and see that it was kept in safe condition, and, proper inspection not having been made, their default was that of the master. The Oiva Case involved the question of a safe place in its physical features. The case was submitted to the jury under a lengthy charge, and a verdict rendered for defendant. Errors assigned and considered related to the charge of the court. These were carefully reviewed in detail, and the charge sustained as correctly covering the issue involved, which was stated by the court to be as follows:

“What the plaintiff claims, in substance, is that he was not furnished a safe place in which to work, and a further claim that he was set to work in an unsafe place upon an assurance that it was safe. Assuming that he himself exercised proper care, he was entitled to recover if he established either proposition. * * * The court, whether it was necessary or not, seems to have had in mind the rule that, where a duty is assumed by the master, or is imposed upon him by contract, or is customarily performed by him, it becomes a nondelegable one.”

We find nothing in the cases cited controlling here; no complaint is made . in the instant case that the place where the plaintiff worked was, as to its physical conditions, an unsafe place in itself. So far as shown, it was safe, and would have continued so but for the fact that Reily, a fellow-servant, made it unsafe for a brief period by rolling down a stone, which might have been easily avoided if he had given proper warning, as was his duty. Not the condition of the place itself, but his neglect to give warning according to rule and custom, was the culpable delinquency. No duty of inspecting, to keep the place itself safe and in repair, is involved here. No inspection of the place would disclose a probability or possibility that Reily would at any time default in his duty to give warning.

From cases to which we have already referred and others of like import, it must be taken as the settled rule in this State that the master who has provided a safe place, proper appliances, and competent employees fully instructed as to their duties, and has established proper rules and regulations for safe conduct of the business which are made known to them, is not liable for the negligence of an employee failing to notify a fellow-servant of a transitory or temporary danger caused by his acts which will for the moment render the environment unsafe, but which can easily be avoided by a due warning it is his duty to give under rules of which all interested employees have knowledge.

The negligence of a workman to give warning of some act about to be done by him, and which may be dangerous to a fellow-servant, does not come within the scope of the safe place or duty to inspect doctrine in this jurisdiction.

“Frequent attempts have been made to bring the negligence of fellow-servants deputed to give signals within the scope of the principle that the duty to maintain a safe place of work is nondelegable. But this contention is rejected (except in Washington, where a servant who has been designated to give signals which control the movements of machinery is, while so acting, held to be doing the work of the master).” 4 Labatt on Master and Servant (2d Ed.) § 1537.

In Mikolojczak v. Chemical Co., 129 Mich. 80 (88 N. W. 75), it appeared plaintiff was injured while working with others at undermining and breaking-down a large quantity of salt in defendant’s plant. At certain times employees went upon the top of the salt pile above where others were at work, and, with bars or wedges, broke off large masses amounting to several tons, which would fall forward upon the floor. It was a regular custom for the men who went upon the top and did that work to give warning when ready to break down the pile. A foreman was in charge of the work going on there, and the negligence claimed was his failure to see that such warning was given at the time of plaintiff’s injury. The court there said:

“The defendant had performed all the duty the law required of it in providing a competent man to attend to the duties of yard foreman, and to direct and assist its employees in the performance of the labor for which they were employed” — holding that the negligence was that of a fellow-servant.

However persuasively authorities cited from other States may be urged and argued, they cannot be indorsed in disregard of the settled rule in this State, established by a series of decisions extending over many years. We are impelled to the conclusion that the learned circuit judge correctly found and charged, as a matter of law, that, under the controlling decisions of this State, the negligence complained of was that of a fellow-servant, for which defendant could not be found liable.

The judgment is affirmed.

Brooke, C. J., and McAlvay, Kuhn, Stone, Bird, and Moore, JJ., concurred. Ostrander, J.,- did not sit.