Broderick v. Detroit Union R. Station & Depot Co.

• Decision Date: 09 April 1885
• Citation: 22 N.W. 802,56 Mich. 261
• Parties: BRODERICK v. DETROIT UNION RAILROAD STATION & DEPOT CO.
• Court: Michigan Supreme Court

22 N.W. 802

56 Mich. 261

BRODERICK v. DETROIT UNION RAILROAD STATION & DEPOT CO.

Supreme Court of Michigan

April 9, 1885

Error to superior court of Detroit.

E.H. Sellers and Don M. Dickinson, for plaintiff.

Isaac Marston and G.V.N. Lothrop, for defendant and appellant.

CHAMPLIN J.

The defendant is a Michigan corporation, engaged in the business of elevating grain at the city of Detroit. Its works are operated by steam power. Its boiler-room is ventilated by a sheet-iron pipe about three feet in diameter, placed over the boilers and projecting above the roof. At the time of the injury complained of, the ventilator was constructed with a damper made of a disk of sheet-iron, placed about 20 feet from the lower end. This damper was held in place by its own gravity, having arbors resting upon iron jaws riveted to the inside of the ventilating tube. There was no device to prevent the damper from being lifted from its support. A piece of iron was fastened to one side of the damper transversely to its bearings, to serve as a weight and keep the ventilating flue open at all times. No appliance was attached to the damper whereby to regulate the discharge of air passing through the ventilator, or to close the same. The weight of the damper was from 35 to 40 pounds. Mr. Beals was superintendent of defendant company, and Mr Savage was foreman in charge at the elevator. Thomas Daugherty was fireman. Plaintiff is a common laborer. About six weeks prior to his being injured, plaintiff applied to Mr. Beals for a job, and he put plaintiff to loading and unloading cars, under the charge of Mr. Savage, and plaintiff continued thus employed for about six weeks. The record does not disclose the time or terms of hiring. During this time Mr. Daugherty came to plaintiff one day and asked him to go in the fire-room and do a little work for him, and he refused. Daugherty then said, "Mr. Savage told me I could get you for awhile." To which plaintiff replied "When Mr. Savage tells me to go, I will go, and not until then." Daugherty then went to Mr. Savage, and Mr Savage said, "Go and help him." A couple of days after, Daugherty asked plaintiff again to help him, but he refused without Mr. Savage told him to. Daugherty then went to Mr. Savage and came back and said, "Mr. Savage said you were to go." Plaintiff replied, "I won't till he tells me." Mr. Savage then came and said to plaintiff, "You go and help Tom, and when he wants you to do anything do it for him."

On the twenty-third of January, 1883, the plaintiff was still in the employ of defendant, and during most of the forenoon was working in the boiler-room, taking down some steam-pipes, that ran from the fire-room to the office, which had become frozen, and putting them on top of the boiler to thaw out. Mr. Savage called him from this work to unload a car of barley, after which he told him to go to dinner. This was at half past 11 o'clock in the forenoon. Plaintiff ate his lunch in the forenoon, and after eating he was directed by Daugherty to close the ventilator, and plaintiff told him he would not do it without orders from Mr. Savage. We here quote the testimony of the plaintiff, given on the trial, as to what then occurred: "Then he said, 'You know Mr. Savage told you when I would want a man to call upon you, and you should do it. You better do it.' Then I went to do it. I said, 'What am I going to raise the ventilator with?' He said, 'By one of those steampipes.' So I got up on top of the boiler, on the steam-chest, and I took a full-length pipe, I think a three-quarter pipe, and I raised it up. It would not stay. I said, 'It won't stay up.' He said, 'Shove it up.' It was pretty dark and cold up there. I shoved it up, and it came out and rolled against the rod, and came down on top of my fingers. I hallooed that my fingers were off."

The plaintiff also testified that when the damper was open there was sufficient light inside the shaft to see these "catches" on the sides, but he thought the rod run through the wall of the ventilator; that when he shoved the damper up it was so dark that he could not see the "hooks" at all, and when he poked it, it fell out of the "hooks" and fell upon his knuckles. It appears that the injury received was such as to sever the tendons of the index and middle fingers of the right hand, and was of a permanent character, causing a partial loss of the use of those fingers. The defendant offered no testimony, and, after the close of plaintiff's testimony, requested the court to instruct the jury as follows:

"(1) That under the pleadings and evidence in this case the plaintiff is not entitled to recover, and your verdict must be for the defendant. (2) The plaintiff has not alleged in his declaration in what way this ventilator, or the fan therein, was defectively constructed or maintained, and your verdict must, therefore, be for the defendant. (3) There has been no evidence introduced in this case tending to show when or by whom the ventilator or fan was constructed, or in what respect, if any, it was defectively constructed, or the cause of the fall of the fan at the time the plaintiff was injured, and, in the absence of such evidence, plaintiff has not made a case entitling him to recover. (4) It appears from the evidence in this case, and is not disputed, that when the plaintiff went into the fire-room on the day of the injury, and while he remained there, he was not subject to the orders of Daugherty; he, the plaintiff, had until one o'clock of that day to go where he pleased, and if, while the plaintiff was in the boiler-room, he was requested by Daugherty to close the ventilator, he was under no obligation, under his employment by the defendant, to obey such request, and if he attempted to obey such request and was injured while so doing, the defendant cannot be held responsible therefor. (5) There is no competent testimony in this case showing the injury received by the plaintiff or the extent thereof. There is evidence tending to show the present condition of the plaintiff's hand, but whether the same was caused by the hurt received by the fan, or by the careless treatment thereof afterwards, does not appear; and as the evidence introduced does not tend to show that a competent physician or surgeon was employed to dress the hand, but only a medical student, there can be no presumption that it was properly treated and that the present condition of the hand results solely from the injury received; and, such being the case, you cannot, from the present appearance and condition of the plaintiff's hand, fix the damages he should receive, if any, in this case. (6) The evidence in this case shows the plaintiff to have been guilty of contributory negligence, and he cannot, therefore, recover. (7) There is no evidence tending to show that Daugherty had any authority over the plaintiff, or to direct the plaintiff to close the ventilator, and there can, therefore, be no recovery. (8) The declaration in this case alleges that the plaintiff was directed to open the ventilator, while the evidence shows he was directed to close it. This is a variance, and the plaintiff cannot recover."

The said court declined to and did not give the foregoing requests, or any or either of them.

The declaration contained three counts:

The first count alleged that the defendant, for a period of two months prior to January 23, 1883, had kept and maintained the building known as the "Union Depot Elevator;" that the plaintiff was, at the time of the injury, and for two months prior thereto, in the regular employ of defendant to unload grain from cars in said elevator, and as such employe was engaged in the regular line of his duty; that the defendant, not regarding its duty towards plaintiff constructed and maintained a certain ventilator, located in the eastern part of the elevator, and leading out of the fire-room, in the following negligent manner, to-wit: "The fan-damper or sheet-iron by which the supply of air coming through said ventilator was regulated, was insufficiently and improperly fastened within the pipe forming part of said ventilator, and in consequence of which negligence, and while said plaintiff was engaged in working for said defendant in the line of his employment, in the exercise of due care, the said damper or sheet-iron, by which said supply of air was regulated, fell from its proper position in said pipe, which is a part of said ventilator, and on and against the arm of...