Bergstrom v. Staples

• Decision Date: 31 October 1890
• Citation: 46 N.W. 1035,82 Mich. 654
• Court: Michigan Supreme Court
• Parties: BERGSTROM v. STAPLES et al.

46 N.W. 1035

82 Mich. 654

BERGSTROM v. STAPLES et al.

Supreme Court of Michigan

October 31, 1890

Appeal from circuit court, Muskegon county; ALBERT DICKERMAN, Judge.

C O. Smedley, (Arthur Jones, of counsel,) for appellant.

Smith, Nims, Hoyt & Erwin, for appellees.

GRANT J.

Plaintiff's decedent, her husband, was an employe of defendants in their saw-mill. During the noon hour it was his duty to go down into the box of the lower band-saw wheel and clean out the sawdust. This box, which inclosed the wheel, was constructed with a slanting bottom, so that the sawdust would slide down to the sawdust carrier. It was necessary to stand on the wheel while cleaning off the sawdust. The only access to this box was by climbing down on the wheel, and the only mode of egress was by climbing up the same way. The wheel was eight feet in diameter. The work could only be done while the machinery was motionless, when of course there was no danger. The deceased entered this box during the noon hour, November 8, 1888, to clean out the sawdust. The engineer started up the engine and machinery while he was there at work, and he was killed. Before starting the engine, the engineer blew the whistle, which was the customary warning to those about the machinery to get out of the way, or by pulling a rope provided for the purpose to blow the whistle again as a signal to the engineer not to start the engine. No one gave the signal to the engineer not to start up. Very shortly after starting up, he received a signal to stop, but it was too late to save the life of Bergstrom. Bergstrom had worked in the mill for about a year, and was familiar with the signals, the machinery, and the workings of the mill. During his entire service he had daily performed this work. Two of his co-employes stood near and saw him go into the box, and were in position to have signaled the engineer not to start up. One of them saw him take off the cover to the box and go down. He testified that he knew that Bergstrom was in the box when the whistle blew, and that he heard him "holler" after the machinery started, and that he then blew the whistle to stop. The other testified that he was 20 feet from Bergstrom when he went into the box; that he was ready to go down stairs when he heard the engineer blow the whistle, and stood with one foot on the first step; that he started for the rope to blow the whistle, but that some other person reached there first and blew it, but the machinery had started. These were the only witnesses who saw Bergstrom go into the...