Breig v. Chicago & W.M. Ry. Co.

• Decision Date: 22 December 1893
• Citation: 98 Mich. 222,57 N.W. 118
• Parties: BREIG v. CHICAGO & W. M. RY. CO.
• Court: Michigan Supreme Court

57 N.W. 118

98 Mich. 222

BREIG v. CHICAGO & W. M. RY. CO.

Supreme Court of Michigan

December 22, 1893

Error to circuit court, Muskegon county; Albert Dickerman, Judge.

Action by Jacob Breig against the Chicago & West Michigan Railway Company for personal injury. Judgment for plaintiff. Defendant brings error. Reversed.

Smith, Nims, Hoyt & Erwin, (Smiley, Smith &amp Stevens, of counsel,) for appellant.

Turner Turner & Turner, for appellee.

MONTGOMERY J.

This is an action of negligence. Plaintiff was in the employ of defendant in its foundry and car shops. The declaration avers that plaintiff's duties consisted in attending and operating an emery wheel, which wheel was used for the purpose of polishing and sharpening tools used in said shop and for gumming saws. That while the plaintiff was gumming a saw, using the emery wheel for that purpose, the wheel broke and he was injured by some of the pieces flying into his face, cutting his lips, and doing other serious injury. The negligence charged against the defendant was-First, that the wheel was not properly encased; second, that an inferior kind of stone was used, that the stone used was not filled with copper wire, or wire of any kind; third, that the wheel was run at an improper rate of speed; fourth, that the stone furnished to be used in said wheel would not properly fit in such manner that it could be made secure; and, fifth, that there was no rest or guard connected with said wheel. The declaration also averred that plaintiff had called the attention of the foreman of the shop to the fact that the shaft was too loose and he had promised to remedy the defect. The circuit judge charged the jury as follows: "If an employe, knowing that a machine is unsafe, works upon it consents to work upon it, has preknowledge, understands its condition, understands that it is in an unsafe condition, and knowingly continues to work with it, he assumes the risks that are liable to follow. If he does that without finding any fault, he assumes them the more; and he also assumes them even if he does find fault, unless, as a result of his finding fault, some promise is made to him by his employer to repair or correct, and there is a failure to do it within the time promised, or within a reasonable time." This is, in the abstract, a correct statement of law. Sjogren v. Hall, 53 Mich. 274, 18 N.W. 812; Prentiss v. Manufacturing Co., 63 Mich. 478, 30 N.W 109; Kean v. Rolling Mills, 66 Mich. 277, 33 N.W. 395; Melzer v. Car Co., 76 Mich. 94, 42 N.W. 1078. But the defendant complains, and justly, that the facts of the present case did not justify the submission of the questions covered by the instructions to the jury; that the instruction leaves the jury to find that the defects were complained of by the plaintiff, and that there was a promise to remedy them. The record contains no evidence to justify any such charge. On the contrary, the plaintiff testified: "I remember calling the attention of Mr. Stanroos, the foreman, to the condition of the wheel. I cannot tell exactly the day. It was the same week before I got hurt, I think, I called his...