Hennig v. Globe Foundry Co.

• Decision Date: 11 May 1897
• Court: Michigan Supreme Court
• Parties: HENNIG v. GLOBE FOUNDRY CO.

71 N.W. 156

112 Mich. 616

HENNIG v. GLOBE FOUNDRY CO.

Supreme Court of Michigan

May 11, 1897

Error to circuit court, Wayne county; Robert E. Frazer, Judge.

Action by William Hennig against the Globe Foundry Company to recover for personal injuries. Judgment for plaintiff, and defendant brings error. Reversed. Keena &amp Lightner, for appellant.

Charles W. Chapman (Moore & Moore, or counsel), for appellee.

GRANT J. (after stating the facts).

1. The first error assigned is the refusal of the court to give the following request: "If you find from the evidence in this case that the car and cable were in reasonably safe and proper condition for use, and that it was the negligence of the engineer, Marshall, in not seeing that the cable was attached to the car before he shoved it down the incline plaintiff cannot recover." Nowhere in his instructions did the learned circuit judge refer to the theory of the defendant. He did charge that the engineer was a fellow servant, and that for his negligence there could be no recovery. It was, however, of importance that the judge should state to the jury the theory of the defendant especially in view of the fact that he fully stated the claim of the plaintiff. Poole v. Railway Co., 100 Mich. 387, 59 N.W. 390, where authorities are cited.

2. The following requests were preferred on behalf of the defendant and refused: "There is no evidence in this case that the defendant had any reason to suppose the cable was not in reasonably safe condition for the use it was intended, up to the time of the accident. The verdict of the jury must therefore be for the defendant. There is no evidence that the defendant had or is chargeable with notice of the defect in the cable claimed by plaintiff to have caused the accident. There is no evidence that the cable was not reasonably safe for the work it was intended, and the jury cannot be permitted to draw any inference of defect or negligence in the defendant from the pulling out of the hook alone. The pulling out of the hook in the manner claimed by the plaintiff is not of itself sufficient to charge the defendant with negligence in this case. There is no evidence that the defendant had any notice of a defect in the cable, or that it was not in as good and safe condition as it was the day before, when the evidence shows it pulled the car up the incline, heavily laden, without breaking; and the plaintiff is not entitled to recover." In view of these requests, and the instruction of the court, it is important to fully state the testimony which it is claimed tends to sustain the charge of negligence. It is not claimed that the cable or hook was faulty in construction, or otherwise, or that they had been in use for such length of time as to require examination or replacement. Nor is there any evidence that they had become so worn that an inspection should have condemned them as unfit for use. Plaintiff, who hooked and unhooked them many times every day, does not testify that he saw any signs of wearing or weakness or unfitness for use. Thirty loads of iron and coal had been drawn up the day before, the last weighing 800 pounds. Plaintiff, on his direct examination, testified, "The rope broke, and they did not get on the brake in time, and the car came down fast." This is all he said about the cause of the accident. On his redirect and recross examination he testified that the loop on the cable was the one that broke, and that the engineer showed him the broken part in the engine room, where he was taken after the accident. He finally testified that he did not see the break himself, but that the engineer told him. All his testimony upon this point was therefore stricken out as hearsay. The only other testimony upon this point was that of Charles Licht, who was employed in the cupola at the time of the accident. We give the following excerpts from his testimony: "I went up on top the cupola, where the rope was. I saw the end of the rope. It is a wire rope. Q. Just tell the jury how the wire rope was drawn out,-how it pulled out. Mr. Keena: There is no evidence...