Ertz v. Pierson

• Decision Date: 26 March 1902
• Court: Michigan Supreme Court
• Parties: ERTZ v. PIERSON et al.

89 N.W. 680

130 Mich. 160

ERTZ v. PIERSON et al.

Supreme Court of Michigan

March 26, 1902

Error to circuit court, Wayne county; Joseph W. Donovan, Judge.

Action by Albert Ertz, by next friend, against Harry L. Pierson and others. Judgment for defendants. Plaintiff appeals. Reversed.

Grant J., dissenting.

Lehmann Bros. and F. J. Riggs, for appellant.

May &amp O'Brien, for appellees.

MONTGOMERY C.J.

The plaintiff, who, at the time of receiving the injuries hereinafter referred to, was a little less than 16 years of age, was employed by defendants in their harness-making establishment. He worked in the harness department about a week. He then went into the stock room, and worked for a few days, and, on the 23d day of February, he was sent into the collar department, where he was instructed by the foreman to cut long straw with a hand machine, and lay it in bundles, and, when short straw accumulated, he was directed to run it through an Ohio feed cutter. He had never operated a machine of that kind before that day. He used it about half an hour in the forenoon, and again about half an hour in the afternoon. The third time he attempted to make use of it, the straw got clogged in the bin, and he attempted to shove the straw away from the machine with his left hand, and, while pushing the straw away, his hand got caught in the knives, and cut off. The circuit judge directed a verdict for the defendants, on the ground that the danger was obvious. The case is certainly very near the border line. The testimony of the plaintiff shows that he knew that there were knives in the machine, and that if he got his hand in the machine far enough to come in contact with them he would be injured. There would be no difficulty in saying, therefore, that, so far as the fact of the machine being dangerous is concerned, the failure to warn the plaintiff of this danger could not be availed of as a ground for recovery; for, where it appears affirmatively that the plaintiff, though of tender years, knew of the danger, and appreciated it, no recovery can be based upon a failure to give the warning. See Borck v. Nut Works, 111 Mich. 129, 69 N.W. 254; Monforton v. Brick Co., 113 Mich., at page 43, 71 N.W. 588. The precise question in this case, however, is whether the plaintiff should have been instructed as to the manner in which this work might be done with safety. It is the theory of the defendants that he might either have stopped the machine, or have used a shovel to clear out the obstruction. But the plaintiff testified that no one told him not to use his hands, that no one told him what to do, in case the straw would not go through, and that no one told him to stop the machine before he went into the bin to shovel. It is true, he testified, 'I knew, as anybody would, that if I got them [his fingers] in far enough, they would be cut.' We think, upon the turning point in the case, that the question is ruled by Allen v. Jakel, 115 Mich. 484, 73 N.W. 555. In that case, the plaintiff had been warned not to get her hands in the rollers, but it was said: 'The only question in the case would seem to be whether the defendant was in duty bound to give her instruction as to how to do this work, or might leave her to learn it from observation and experience, inasmuch as it was obvious that the hand would be injured if it got into the rollers. It may be that no further instruction was required; but this would depend upon the character of the work, and the opportunities she had enjoyed for understanding how to do it safely. It sometimes happens that the dangers of a tool or machine are obvious, yet some methods of use are much safer than others. Skill and dexterity are essential, and prudence dictates that inexperienced persons, especially young children, should have some instruction, or opportunity to learn the proper way, before they are allowed to attempt to use them. Whether this was such a machine, and whether the opportunity for observation was all the instruction reasonably necessary, were questions to be submitted to the jury, not being sufficiently clear to warrant us to dispose of them as questions of law, arising on undisputed facts.' So we think that in the present case the question as to whether reasonable care required that instruction should be given to this plaintiff as to the manner of doing the work was a question for the jury. This question should be determined with full recognition of the fact that he knew that it was dangerous to put his hands in this machine, where they would be likely to come in contact with the knives. No testimony was offered on behalf of the defendant in the present case. It is proper to say that if it should appear that plaintiff was instructed to stop the machine before attempting to remove the straw when it accumulated, or to use the shovel in such an emergency, or if it could be said that using the hands while the machine was in motion was so palpably negligent that the boy should himself know that he should not have done so, but should have used a shovel or other tool, or stopped the machine, which he had been instructed how to do, there would be no ground upon which a recovery could be had.

The judgment will be reversed, and a new trial ordered.

LONG, J., took no part in the decision. HOOKER and MOORE, JJ., concur with MONTGOMERY, C.J.

GRANT, J. (dissenting).

I think several former decisions of this court clearly sustain the ruling and opinion of the circuit judge, and that a reversal of the case would result in overruling those decisions. This plaintiff had nearly attained the statute of a man,--he was five feet seven inches in height,--and the judge, in directing a verdict, said: 'He was a well-developed boy well grown up, bright, intelligent, and in every way seems to have been able to understand the danger.' He had seen these cutters before. He had been cut with one when about six years old. He admits he was shown how to work it. He had been shown how to start and stop it, and was furnished a shovel with which to shovel away the cut straw as it came from the machine. The machine became clogged. He could have stopped the machine before attempting to clear the cut...