Fuller v. Ann Arbor R. Co.

• Court: Supreme Court of Michigan
• Writing for the Court: CARPENTER
• Citation: 104 N.W. 414,141 Mich. 66
• Decision Date: 21 July 1905
• Parties: FULLER v. ANN ARBOR R. CO.

141 Mich. 66
104 N.W. 414

FULLER
v.
ANN ARBOR R. CO.

Supreme Court of Michigan.

July 21, 1905.

Error to Circuit Court, Shiawassee County; Stearns F. Smith, Judge.

Action by William Fuller against the Ann Arbor Railroad Company. There was a verdict for plaintiff, and defendant brings error. Reversed.

Argued before CARPENTER, McALVAY, GRANT, MONTGOMERY, and OSTRANDER, JJ.

[104 N.W. 414]

T. W. Whitney (Alex. L. Smith, of counsel), for appellant.

Watson & Chapman, for appellee.

CARPENTER, J.

Plaintiff brought suit to recover compensation for personal injuries. In the court below the recovered a verdict and judgment. The facts are these: Plaintiff was a car and truck repairer in defendant's employ, working in its Owosso yards. While repairing a car truck, he threw a wrench on the car. The wrench struck a topedo lying on the car, the torpedo exploded, and plaintiff was injured. Plaintiff testifies that he recognized the torpedo as one of those used by defendant. He did not know how the torpedo happened to be on the car or who put it there, never had seen one there before, and never could learn from any one how this got there. Defendant contended in the court below, and contends here, that from this testimony no inference of negligence could be drawn, and therefore that the trial court erred in not directing a verdict for defendant.

If defendant is responsible for plaintiff's injuries, it is so responsible because it failed in the duty it owed plaintiff to furnish him a safe place in which to work. Defendant's obligation, as an employer, to furnish to plaintiff, as an employé, a safe place in which to work is an obligation, not of insurance, as urged by plaintiff's counsel, but of diligence. This obligation was performed if defendant exercised due care. Defendant is not liable, therefore, unless it was guilty of some neglect. It is not liable unless the presence of the torpedo on the car resulted from defendant's negligence. There is no evidence of this negligence unless that negligence may be inferred from the fact that the torpedo was on the car. Of course, it is possible that the torpedo may have been placed on the car under such circumstances as to make the conduct of defendant in failing to remove it negligent. There is nothing, however, to indicate this. It may have been placed there by a fellow servant or by a trespasser only a short time before plaintiff's injury. If so, it is clear that no liability would be imposed upon defendant. It is obvious,...