Ella v. Boyce

• Decision Date: 11 May 1897
• Citation: 70 N.W. 1106,112 Mich. 552
• Court: Michigan Supreme Court
• Parties: ELLA v. BOYCE.

70 N.W. 1106

112 Mich. 552

ELLA v. BOYCE.

Supreme Court of Michigan

May 11, 1897

Error to circuit court, Kent county; Allen C. Adsit, Judge.

Action by James Ella against Jonathan Boyce. There was a judgment for plaintiff, and defendant brings error. Affirmed.

p>Page Simonson, Gillett & Courtright (Fletcher & Wanty, of counsel), for appellant.

Charles A. Withey (Dunham & Preston, of counsel), for appellee.

LONG C.J.

This is an action on the case for personal injury. The case was tried before a jury, who returned a verdict in favor of plaintiff for $4,000. No testimony was offered on behalf of the defendant. The defendant's first contention is that no actionable negligence is alleged in the declaration, and that none was proved upon the trial, and that, therefore, the court should have directed a verdict for the defendant. The first count of the declaration charges substantially that on May 3, 1893 (the date of the injury), defendant was the owner of the schooner C.J. Boyce, and the plaintiff was an employ� of the Michigan Trust Company, which was at that time in charge of the mill and salt block of R. G. Peters, at Manistee. Connected with the sawmill and salt block was a long pier or dock, extending 30 rods out into East lake, and terminating in the warehouse. The plaintiff was engaged in hauling barrels of salt from the block to the warehouse. It was hauled upon a flat car, which had a capacity of 30 barrels, and was drawn by a horse. The car was like an ordinary flat car, only smaller. The tramway was built with iron rails, the track being 4 feet wide. Above this tramway was another, which was used for piling lumber, so that, when the dock was well filled, the lower tramway was inclosed by lumber piles. There were certain downgrades in the tramway where the horse would have to trot to keep out of the way of the car. The salt block was in operation both day and night, and the car passed over the road every 15 minutes, day and night. The tram, when inclosed by lumber was very dark at night, so that the drivers of the flat car could not see without a light. It was only five feet from the top of the car to the timbers of the tramway overhead, so that a man could not stand safely upon the car. The car was loaded by standing the barrels of salt on end until the car was full, leaving one vacant place at the front for the driver to occupy. The defendant sent his schooner into East lake for the purpose of loading with lumber at that dock, and the declaration then alleges: "Whereupon said defendant on said 3d day of May, 1893, *** by his captain, mate, and other officers and employ�s, *** brought said schooner to said dock or pier at two o'clock a.m., *** and there moored her, *** and, in order to more securely moor *** said schooner to said dock, carelessly and negligently caused a large line, hawser, or rope, which was attached to said schooner at a considerable height from the surface of said dock, to be carried or extended *** to said spile, where it was also *** fastened directly at the surface of said dock. And the plaintiff, being *** wholly ignorant of the fact that said vessel had entered the harbor for the purpose of mooring at said dock, *** got upon the said flat car at the front thereof with his feet and legs, from the knees downward, hanging over the end of the car; *** proceeded *** along said tramway; *** and was passing down one of the down grades *** when he observed the horse ahead of him jump some obstruction, and caught sight of said line, hawser, or rope (that being the first intimation said plaintiff had of said obstruction), whereupon he instantly drew up his legs as quickly and as far as possible, but was instantly, without fault on his part, caught between the end and framework of said salt car and said line, hawser, or rope, with terrible force, so that both legs were broken and greatly lacerated, torn, and mangled, between the ankle and knee joints, and the said plaintiff instantly hurled forward from said car to the surface of said dock, upon his hands and face, and otherwise greatly shocked, bruised, wounded, and injured, to his damage ten thousand dollars." It was shown that there was a row of spiles on each side of the tramway from the shore to the warehouse, so that boats could tie up on either side of the pier, and fasten to these spiles or to the bent timbers or lumber piles, or all of them, from either side of the pier, without carrying their lines across the tramway; that, at the exact point where the "Boyce" moored, there was no spile on her side of the tramway, but there were spiles on that side a few feet either way above or below, and there was an abundance of opportunity to fasten the mooring line to the bent timbers, lumber piles, etc., at the exact point where she lay without crossing the tramway; that those in charge of the "Boyce" knew the tramway and its use, and the only excuse offered at the time of the injury for taking the line that way was that "he [the man in charge] said he did not think they were using the track at night." The second count alleges that, in consequence of the injury, the plaintiff became shattered in health, and more liable to disease, and has been rendered from thence hitherto unable to earn a livelihood, and that his earning capacity has greatly decreased, and he has been put to great annoyance, suffering, and expense. Upon the trial the plaintiff testified to the circumstances of the injury as alleged in the declaration. It appears that there were no brakes upon the car at that time; that the track of the tramway was about four feet wide, made of small rails, and built with planking both inside and outside, so that the planking was flush with rails on both sides. The space for the car wheels was from an inch to an inch and a half wide. The plaintiff's feet were hanging over the car, within a few inches of the planking. It appeared, further, that the schooner was brought to that part of the dock by a local tug; that the spile to which she was fastened was sworn and indented on the north side, as if other vessels had been fastened to it before in the same way.

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