Baron v. Detroit & C. Steam Nav. Co.

• Decision Date: 13 May 1892
• Parties: BARON v. DETROIT & C. STEAM NAV. CO.
• Court: Michigan Supreme Court

52 N.W. 22

91 Mich. 585

BARON v. DETROIT & C. STEAM NAV. CO.

Supreme Court of Michigan

May 13, 1892

Error to circuit court, Wayne county; GEORGE GARTNER, Judge.

Action by Louis Baron against the Detroit & Cleveland Steam Navigation Company for personal injuries. Judgment for defendant. Plaintiff died, and the case was revived in the name of his administratrix, Anna Baron, who brings error. Affirmed.

William Look and H. F. Chipman, for appellant.

Moore & Canfield, (F. H. Canfield, of counsel,) for appellee.

MONTGOMERY J.

The plaintiff's intestate brought suit to recover damages for injuries received while at work for the defendant as a ship carpenter aboard the City of Alpena. The negligence imputed to the defendant was leaving the hatchway open, and the failure to open the gangways before the hour when the plaintiff was expected to commence work, by reason of which the plaintiff, while crossing the deck, fell into the open hatchway, and was seriously injured. The circuit judge directed a verdict for the defendant, and the plaintiff having revived the case, brings error. The testimony of the deceased showed that he was a ship carpenter of ten years' experience, and had been at work on the Alpena for two or three weeks before the accident; that he knew of the existence of the hatchway; that there had been lumber previously piled just behind the hatchway, in such a manner that, it was claimed, if the lumber remained in that position, no one could fall into the hold from the hatchway. It appears that the planks had been removed the evening before, and that on the morning in question the deceased came aboard and found the gangways had not been opened, so that it was dark forward. His testimony tended to show that while crossing the deck for the purpose of opening the gangway he fell into the open hatchway. The deceased knew where the hatchway was located, and knew that work was being done in the hold. The men employed on the boat were five or six ship carpenters, the engineers, two joiners, and two or three other men, "all working together to fit out the boat," as deceased testified. If it be assumed that there was evidence of negligence on the part of the defendant and of due care on the part of the deceased, (a view which we do not intimate,) the negligence, if any, must be held to be that of a fellow servant. Caniff v. Navigation Co., 66 Mich. 638, 33 N.W. 744. The contention of the plaintiff...