Clark v. Detroit Locomotive Works

Decision Date05 October 1875
Citation32 Mich. 348
CourtMichigan Supreme Court
PartiesJohn P. Clark v. The Detroit Locomotive Works

Submitted on Briefs, June 18, 1875

Error to Superior Court of Detroit.

Judgment reversed, with costs, and a new trial granted.

Ashley Pond, for plaintiff in error.

Moore & Griffin, for defendant in error.

OPINION

Campbell, J.

Clark in defense to an action for part of the price of an engine which the locomotive works were to build and place in a vessel named the Gazelle belonging to him, alleged defects and consequent damages arising out of the improper construction.

William Cowie, admitted to have been a competent engineer and expert, testified to an examination of the machinery on the vessel, and to the discovery of several defects and injuries. Among other difficulties alleged, it was claimed by Clark that the journals would heat and bind, so as to interfere seriously with the running of the vessel, and questions were put to the witness concerning the proper method of preventing this, which was supposed to have been possibly caused by the length of the shaft settling it or otherwise getting it out of line. He referred to various devices, and, among others, said it was common now to use couplings called clutch-couplings, or else a universal joint in connection with the shaft. On cross-examination by counsel for the locomotive works he was asked, under objection, whether it was the duty of the company under the contract, which was shown him, to put in clutch-couplings. His answer, called out by a series of questions to the same end, was in substance that the terms of the contract did not call for them, though, for his own reputation, he would have felt bound to put them in if it had been his contract, and that as honorable men they were bound to make the engine work.

The contract is very loosely drawn, and contains no reference to any mode of construction except by comparison with another engine on the steamer Phil. Sheridan, which was shown to have had a short shaft, and not to have been subject to the same difficulty. It appeared from Mr. Cowie's testimony that the device of clutch-coupling had not been in use for the purpose in question many years, and in the absence of any provision in the contract, the builders, while bound to provide suitable apparatus or contrivances, may or may not have been at fault for not using this particular device, according as it had or had not become generally known and used as more appropriate and efficacious than other devices. This would be for the jury to...

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