Brown v. Gilchrist

• Decision Date: 11 April 1890
• Citation: 80 Mich. 56,45 N.W. 82
• Court: Michigan Supreme Court
• Parties: BROWN v. GILCHRIST et al.

45 N.W. 82

80 Mich. 56

BROWN v. GILCHRIST et al.

Supreme Court of Michigan

April 11, 1890

Error to circuit court, Alpena county; R. J. KELLEY, Judge.

Action by Luke Brown against Frank Gilchrist and Marshal N. Bedford for personal injuries. The jury returned a verdict of $4,116 in plaintiff's favor. Judgment was entered accordingly whereupon defendants took this writ.

Frank Emerick and Depew &amp Rutherford, for appellants.

Turnbull & Dafoe, for appellee.

LONG J.

The defendants, at the time of the injury complained of, were carrying on the coal and freight business at Alpena, this state, keeping a dock and warehouse, and receiving freight from boats engaged in domestic commerce. Their freight house office, and coal-dock were all on the same dock, near together, and the bins into which the coal was put were about 18 feet from the edge of the dock, and about 8 feet high. The manner in which the coal was unloaded from the vessel was that horses, a quantity of which were kept constantly on hand, were placed along the dock, and running boards laid on top, extending from the top of the bin, over the rail of the vessel, to the hatchways, and the ends at the hatchways supported by two upright pieces on each side of the hatch, through which iron pins were run, and a plank or scantling placed across the side of the hatch, resting on those pins; the planking of the runway resting on this transverse scantling, about eight feet above the hatch. The defendants had in their employ a Mr. Reid, who was a foreman, looking after the unloading of the boats, and attending to the freight business of the firm generally. On June 30, 1888, the barge Westford lay at the dock, laden with coal. She had two hatchways, and two runways were placed from the bin,-one to each hatch. Those were erected, under the direction of Mr. Reid, on that morning, by the laborers who were there to unload the coal Mr. Reid pointed out to them where the horses and planking were, and they built the runways from the material so furnished, and before the plaintiff came there to work. It appears that the plank or timber resting on the iron bars was a 2X8 or 2X10 white pine, about 12 feet long, resting on the pins, which were some 8 feet apart. In order to hoist the coal from the hold of the vessel, a pulley was attached to the mast, a rope run through,-to one end of which was attached a bucket, and the other end wound around a drum in the hold; the drum being revolved by an engine used for that purpose. This drum operated the two buckets; one for each hatch, and going up and down at the same time. To operate these buckets, which held about half barrels each, a man, called a "dumper," stood on the end of the runway, over the edge of the hatch, and steadied the rope so that the bucket could not catch on the end of the planking; that is, he held the rope away far enough so that the bucket could come up safely. This coal was emptied into wheelbarrows on the runway,-two barrows being used for each runway, and a man for each barrow, who came up, with the barrows, alternately; a turn out being upon the runway for the purpose of their passing each other. The plaintiff, on the morning of June 30, 1888, went with a Mr. Hite to the defendants' docks to get employment,-he and Hite having learned that two men were going to quit. They were accustomed to this kind of work, and had before assisted in unloading vessels. Arriving at the dock, Hite spoke to Reid about working, who said: "All right. Go to work,"-and he then turned to the plaintiff, and told him to go to work; and Reid took the time. The plaintiff went to work on the after scaffold, wheeling coal. The plaintiff testifies as follows how the injury occurred: "I wheeled for some time, when they stopped to lengthen out the line, as the coal was getting lower in the hold of the boat, and we thought that was a good time to go down, and answer a call of nature. In returning the other two men happened to get on the staging before I did. One of these men was tending the bucket coming up, so that they would not catch on the staging, and the other man was wheeling along with me; that is, he was wheeling his own barrow. I saw John Reid [the defendants' foreman] standing on the rail of the boat, and he says: 'Brown, we are waiting for you.' I said: 'All right; you won't have to wait long on me.' With that, I got upon the staging, and the other man was going to take my wheelbarrow. 'Never mind,' says I, 'I will take my own wheelbarrow. Stand aside.' With that he stood aside, and I went to catch up my own wheelbarrow. I had it up. Down went the scaffolding, and I was pitched backward into the hold. I struck onto my back, and there came a part of the staging onto my leg, and broke it in two places; and my back was hurt more than my leg." Plaintiff also gave testimony showing that he was seriously and permanently injured. He also gave testimony tending to show that this plank, resting upon the iron pins holding the running boards, broke near the center, between the pins, thus causing the fall of the plank, which precipitated his fall into the hold of the vessel, 20 feet below, and that this plank or scantling so broken was worm-eaten, and contained knots, and was wholly unfit for the purpose for which it was being used.

The claimed negligence set out in the declaration is that the defendants, not regarding their duty in this behalf, erected and caused to be erected, said scaffold or platform and gangway out of rotten and unsound timbers and material, so that the same gave way and fell while the plaintiff was working thereon. The declaration charges a duty upon the defendants to build such scaffold of strong and sound timbers and materials, and in a strong and substantial manner, so that the same would not fall while plaintiff was working thereon. The defendants gave testimony tending to show that this timber was sound, contained no knots, and was of sufficient strength for the purposes for which it was being used, and that the accident occurred by reason of the fact that these men left their places, and on returning-two wheelbarrows being there, loaded with coal-the dumper could not reach out to guide the rope, so that the bucket caught on the end of the planking extending over the edge of the hatch, lifting them up for a distance, and that, in falling with the weight of the three men and the coal, they broke the scantling, and that this was the occasion of the injury. Mr. Redman, who was standing near, gave his version of the casualty as follows: "Mr. Brown went after a drink, and the bucket come up, and my nephew, he dumped Mr. Brown's bucket; and at that time the bucket went down, and they loaded her with coal again, and the other bucket come up. At that time Mr. Brown just got back there by the wheelbarrow when this bucket was swinging back and forward, and it struck this staging, the same as here, and raised it up; and it fell down, and broke it through. The bucket was swinging backward and forward, and coming up, at the same time. I suppose the dumper did not stop it because he could not get at it. It was on that side; and, Mr. Brown being here with his full wheelbarrow, he could not reach over there. Brown left his wheelbarrow standing at the end of the scaffold where it was loaded. At that time the other wheeler was just coming back with his wheelbarrow. My nephew dumped the bucket in Brown's barrow. The wheeler was there, and the barrow stood waiting Brown's return. My nephew was standing on one side,-the dumper on the other,-the bucket swinging back and forward. Brown got in...