Ball v. Hauser

• Decision Date: 11 February 1902
• Citation: 129 Mich. 397,89 N.W. 49
• Court: Michigan Supreme Court
• Parties: BALL v. HAUSER et al.

89 N.W. 49

129 Mich. 397

BALL v. HAUSER et al.

Supreme Court of Michigan

February 11, 1902

Error to circuit court, Kent county; Alfred Wolcott, Judge.

Action by Oscar F. Ball against Charles A. Hauser and others. From a judgment for defendants, plaintiff brings error. Affirmed.

E. J Adams (N. J. Brown, of counsel), for appellant.

L. E Carroll and Clapperton & Owen, for appellees.

HOOKER J.

The defendants contracted to erect a large building in Grand Rapids. They sublet the carpenter work to a firm named Nordella & Owen, and the plaintiff was foreman for that firm. To raise mortar, stone, brick, iron, and other material, the defendants employed one Bush to put up and operate an elevator, and he personally ran the engine which furnished the necessary power during the time that the elevator was used. There is nothing to show that Nordella &amp Owen had a contract right to use this elevator. They had a derrick of their own, and a hoist, consisting of blocks and tackle, and there was access to the various parts of the building by ladders. It appears, however, that the defendants permitted Bush to use the elevator to raise material for them when it was not employed for the purposes of the defendants. Upon the cross-beam of the elevator was the following printed notice, viz.: 'Notice. This elevator is for freight only. All persons strictly forbidden to ride hereon. Any one acting contrary to this order does so at his own risk.' The elevator consisted of a cross-beam to which a platform made of planks was suspended by iron rods. It was raised by winding the pulley rope over a drum operated by the steam engine. Wheelbarrows loaded with materials were run upon the platform, and raised, there being a man at the top to receive material thus hoisted, and he had charge at the top, while Bush managed it below. In lowering the elevator, the drum was usually disconnected from the engine, and allowed to run loose, being controlled by a friction brake, operated by Bush. Where an exceptionally heavy load was being lowered the engine was not disconnected, being run backward by the weight of the load, though the brake still had to be used, lest it run away with the engine, no steam being used. The plaintiff had some sash to carry up and distribute to the three floors, and went up with them on the elevator. On his return the brake failed to hold the elevator, and it descended rapidly to the ground, whereby plaintiff was injured in the feet and legs. A subsequent investigation showed some grease between the drum and the leather of the brake, which prevented its usual effect. The action was brought to recover damages for the injury. On behalf of the plaintiff it is claimed that the defendants were negligent in failing to seasonably in spect the brake. The learned circuit judge directed a verdict for the defendants upon the grounds that the elevator was not provided for men to ride upon, and that plaintiff, having full notice, assumed the risk; that the proofs failed to show negligence on the part of the defendants, and did show it on the part of the plaintiff. The plaintiff has appealed.

The notice is not ambiguous. It plainly states that it is for freight only. It forbids 'all persons' to ride,--not all visitors, all strangers, nor all workmen, but all persons,--and states further that any one acting contrary to the order must do it at his own risk. It is contended that this notice should be construed as intended only for strangers or visitors. It is said that the elevator was in use on a large three-story building, and that access by the ladders shown to be provided would be slow and inconvenient also that men were in the habit of riding, and had a signal which indicated to the engineer in charge when a man was going to ride, and that the defendants rode on the elevator and made use of the signal; and it is asserted that the testimony shows a custom to use the elevator, in disregard of the notice, which was acquiesced in by the defendants. We have held in several cases involving the handling of railroad trains that necessary and habitual disregard of rules known to the employer might justify the conclusion that such disregard had the sanction of the company, and plaintiffs have been permitted to recover upon the ground that the rule had been abrogated, and that it would be unjust to hold one bound by a rule which his employer knew that he could not comply with, and that he did not expect him to obey. Thus, in Hunn v. Railroad Co., 78 Mich. 526, 44 N.W. 502, 7 L. R. A. 500, there was evidence that a rule as to speed was impracticable if schedule time was made, and was habitually disregarded, under circumstances which indicated knowledge and an expectation that the employ�s would have some latitute of discretion in complying with it. In Eastman v. Railway Co., 101 Mich. 603, 60 N.W. 311, the court said: 'In the present case the cars were moving slowly. Not only did it appear that the work was being done in the manner in which it had been done for years, but it was done in the only way that the work required of the switchman could be done. Indeed, this testimony is not disputed.' In Fluhrer v....