Quincy Min. Co. v. Kitts

• Decision Date: 28 October 1879
• Citation: 3 N.W. 240,42 Mich. 34
• Court: Michigan Supreme Court
• Parties: QUINCY MINING COMPANY v. JOSEPH KITTS.

3 N.W. 240

42 Mich. 34

QUINCY MINING COMPANY v. JOSEPH KITTS.

Supreme Court of Michigan

October 28, 1879

An employe takes the risk of negligence of his co-servants, and the dangers incident to his employment, and the master is not liable for the negligence of such co-servants, if he has exercised proper care in their selection; and an employe, to recover for injuries sustained, must trace negligence directly to the master, or some one standing in his place. The mere fact that he is injured through the negligence of a co-servant, employed in a different branch of the same general work, is not enough to make the master liable. Record held not to show negligence.

Error to Houghton.

Chandler & Grant and Ashley Pond, for plaintiff in error.

Dan. H. Ball, for defendant in error.

COOLEY J.

Kitts sued the mining company to recover damages for an injury alleged to have been suffered by himself through the company's negligence, while in its employ as a miner. ******* It appears from the evidence that what in the declaration is called a bridge, over the chasm where the accident occurred, consisted merely of two timbers laid side by side, one of which broke and fell with the plaintiff as he was passing over. The timbers were of pine, and had been in place some five years. The evidence tended to show that they discovered no weakness when put in and that, if sound originally, five years was not time sufficient to cause dangerous decay or weakness. The only evidence of any effort to examine the broken timber after the accident showed that it fell among others where it could not be distinguished, and the occasion of the breaking was therefore, wholly unexplained. Other persons, including the plaintiff himself, had crossed upon these timbers with safety on the same day.

It was suggested, rather than urged, on the part of the defence that the timber may have been weakened by a fragment of a rock falling upon it from above, and an inference to this effect might be drawn from the proofs. On the other hand the effort of the plaintiff seems to have been directed to satisfying the jury that the timber must have been weak originally, or become weakened from some unexplained cause, and that from want of proper supervision the defect had never been discovered. An effort was made to bring home the want of proper supervision to one Wagner, who was said to be charged with the duty, and who, though he had casually examined the timbers sometimes, had never applied some of the most simple and usual tests, such as striking with a hammer, and piercing with a sharp instrument. Wagner was what is called a timberman in the mine. The timberman put in and looked after such bridges or passages; and Wagner was sometimes called captain, as he had some authority over the other timbermen, and might direct them as to their work. He, however, as well as the others, was under the general supervision and control of Capt. Cliff, who had the entire charge of the underground work. No claim was made that either Cliff or Wagner was incompetent, or that the company had been negligent in the employment of incompetent persons, and the principal reliance of the plaintiff seemed to be on such inferences of negligence on the part of Wagner as might be drawn from the evidence.

The circuit judge was requested to instruct the jury that even if they found that Wagner was negligent, yet this negligence was the negligence of a fellow-servant of the plaintiff and of this the plaintiff took the risk. This was refused, on the ground, as would seem, that in respect to the supervision of this bridge or passage way Wagner was charged with the responsibility of the company, and his neglect was the neglect of his principal. As between the company and any third person the extent of the authority and responsibility of Wagner would have been immaterial; but when a servant demands...