Johnson v. Spear

• Decision Date: 11 July 1889
• Citation: 42 N.W. 1092,76 Mich. 139
• Court: Michigan Supreme Court
• Parties: JOHNSON v. SPEAR.

42 N.W. 1092

76 Mich. 139

JOHNSON v. SPEAR.

Supreme Court of Michigan

July 11, 1889

Error to circuit court, Marquette county; GRANT, Judge.

Action by John Johnson against Frank B. Spear. Judgment was given for defendant, and plaintiff brings error.

CHAMPLIN J.

Johnson was injured while unloading coal from a vessel moored at defendant's dock. The defendant owns a coal-dock in the city of Marquette, and during the season of navigation large quantities of coal are unloaded thereon from vessels. The vessel crews have nothing to do with unloading the cargoes which was done by means of a small engine and apparatus belonging to defendant, placed on the dock, and operated by an engineer employed by defendant, by means of which large iron buckets loaded with coal in the hold of the vessel were hoisted out of the hold, elevated to a platform, and dumped into barrows, and wheeled to different places upon the dock. With the engine, and as a part of the appliance used for hoisting coal, and furnished by defendant, was used a chain about 30 feet long. The links were from 5/8 to 7/8 inch round iron when the chain was new. One end of the chain was made fast to a drum, the other end being fastened to a rope which ran through pulleys fastened to blocks in the rigging of the vessel, nearly over the hatchways, and to this rope the buckets were attached, which were filled in the hold of the vessel, and drawn up by the engine to the platform. The chain would be alternately wound about the drum and unwound in the work of hoisting and lowering the buckets. The weight of a bucket filled with coal is about 250 pounds. For the last five years the defendant has unloaded at his dock 10,000 tons of coal a year. For the season of 1887 the defendant had a verbal contract with one George Watkins for unloading coal. The defendant testified that "the terms of that contract were: Twenty-one cents a ton on coal taken from the vessel and put on the dock,-shoveled, hooked on dumped, and wheeled and put on the dock at my satisfaction,-and twenty-five cents a ton on brick. That is all there was to the contract. I furnished engine wheelbarrows, plank, platform, and horses. He furnished the shovels. The engine and drum included the chain also. Mr Watkins hired the men necessary to do the work." Mr. Watkins also testified that the terms of the contract were that Mr. Spear should furnish engine, wheelbarrows, planks, and everything except shovels. He (Watkins) hired his own men and discharged them. It appears that Mr. Berry, the engineer, worked for Mr. Spear, who also employed a foreman by the name of Taylor, to see that the work was properly done, but he had nothing to do with the men in unloading. Nothing was said in the contract between Mr. Spear and Mr. Watkins as to who should keep the apparatus used for hoisting in repair and fit for us. Mr. Spear testified that it was his place to buy new chains when the old ones were worn out; that he was to be notified of the need by the contractor; that contractors had nothing to do with the buying of chains; that he received no notification from his contractor previous to the time of this breakage that a new chain was needed, and had no knowledge of any defect in this chain which would render it insufficient for the business for which it was used. It appeared upon cross-examination that he had bought five new chains, and never but one personally. The others were bought upon the judgment of his foreman, and whenever he thought it necessary for safety. He also testified upon cross-examination: "When the chain was mended, I presume, the price of mending was charged to me. When a new chain was got, the price was charged to me." The bearing of this testimony will become evident when the plaintiff's claim is considered.

He claims that he was in the hold of a vessel, shoveling coal into a bucket, when, in drawing up or hoisting the bucket, the chain broke, and the bucket fell into the hold, and injured him. He claims that the chain was so worn as to become weakened and dangerous for the purpose, and that it was the defendant's duty, not only to furnish in the first instance safe machinery and appliances to do the work of hoisting, but it was his duty to inspect the machinery and appliances, and see that it remained safe and sufficient for the use to which it was applied; that the defendant neglected this duty, and by reason of such neglect the plaintiff was injured.

The plaintiff was not employed by the defendant. He was employed by Watkins. The relation of master and servant did not exist between them, and the plaintiff cannot predicate a right of action based exclusively upon that relation. As between the employer and his employ�s, it is the duty of the master to furnish suitable machinery, and see that it is kept in proper repair, and he is bound to exercise reasonable care to prevent accidents. His duty is not discharged by furnishing suitable machinery and appliances in the first instance, and fit and proper for carrying on the business, but he is in duty bound to see that they are kept so. He must exercise reasonable and proper watchfulness as to their condition, and guard against dangers liable to arise from ordinary wear and use from which they may become weakened or unfit for the purpose for which they were supplied. The care required necessarily has relation to the parties, the business in which they are engaged, the wear and tear upon the machinery, and the varying exigencies which require vigilance and...