Jones v. McMillan

• Decision Date: 10 December 1901
• Citation: 88 N.W. 206,129 Mich. 86
• Court: Michigan Supreme Court
• Parties: JONES v. McMILLAN et al.

88 N.W. 206

129 Mich. 86

JONES v. McMILLAN et al.

Supreme Court of Michigan

December 10, 1901

Error to circuit court, Ontonagon county; Norman W. Haire, Judge.

Action by Annie Jones, administratrix of the estate of Ole Jones deceased, against Benjamin F. McMillan and others. From a judgment in favor of plaintiff, defendants bring error. Reversed.

Ball & Stone, for appellants.

A. E Shuster (C. E. Miller, of counsel), for appellee.

HOOKER J.

The defendants employed the plaintiff's intestate to aid in the construction of a tramway to be used with and as a part of the defendants' sawmill; and defendant Reynolds is alleged to have had supervision of its erection, being at the place of work at intervals, when he gave general directions to the men engaged. The defendants had previously been engaged in the business of manufacturing lumber in the adjoining state of Wisconsin, and this sawmill and the material being used in the erection of the tramway had seen use there. They were engaged in removing it to Michigan, and the mill had been reconstructed, and at the time of the accident the tramway was being rebuilt from the old materials. The men engaged in the work were workmen in their employ, and apparently were common laborers. The plaintiff's intestate had worked about a sawmill for several years. In the construction of this tramway a long stringer extending across the northwest end of the mill was fastened to the mill by bolts. This furnished a support for one end of the timbers called 'overlays,' which supported the floor or deck of the tramway. To make the tramway wider than the mill, the stringer first mentioned was extended to the southwest 12 feet by a piece of timber 8 inches square, supported at the ends by posts. This timber the witnesses called a 'cap,' calling the stringer and its extension a 'bent'; the tramway consisted of three bents, the second of which was about 16 feet from the first, and parallel with it, and the other was placed at a similar distance from the second. The second and third were alike, and each consisted of five upright posts, and four caps each, about 12 feet long. Eight by eight timbers were used for posts and caps, the latter being spliced in some instances. The bents were put together upon the ground, and raised by a team by means of a gin pole and pulley. Being raised, they were stayed both ways with 2X6 stuff, to keep them in place, and the top was stayed by plank extending from the mill to the third bent, the same being spiked to the caps. Overlays, as they were called, consisting of heavy timbers, were next to be placed at intervals of six feet, extending from bent to bent. These were hoisted by the team and pole. The deceased went upon the first bent or stringer, while one Roehm went upon the second bent, and these two received the overlays as they were hoisted, and laid them down, an end of each overlay resting on the caps. Subsequently they were to be distributed by carrying or rolling them over, or carrying them to their places. Instead of taking them to their respective places at once, the men allowed them to accumulate upon the outside row of caps to the number of six or seven, so that at the time of the accident, the ends of six or seven rested on the cap upon which the deceased stood, while there were twice as many upon the cap that broke, as that carried ends of overlays extending both ways. In rolling one stick over the others it was allowed to slip, and it fell upon the cap of the second bent, and broke it, and the bent and timbers upon it went down together. Roehm, who was on this bent, dropped to the ground unhurt; while Jones either fell or was thrown from the cap of bent No. 1, and was injured so severely that he died three days afterwards. This action was brought by his administratrix by filing declaration as the commencement of suit counting upon the statute providing for recovery for causing the death of a person.

There are several assignments of error which we consider well taken. The court charged the jury as follows: 'It seems, under the facts that are undisputed, that the cap of a certain bent broke, which we will call 'bent No. 2.' The cap of that bent broke, and let down certain timbers that were piled thereon, and shook another bent that we will call 'bent No. 1,' on which Mr. Jones, the intestate, was standing; and by reason of this falling of these timbers, caused by the breaking of the cap of bent No. 1, which jarred bent No. 2, so that Jones fell off and injured himself, by means of which he afterwards died.' It was claimed by the defendants that Jones' fall was not caused by the jarring of the bent. There was testimony that at the time the cap broke he sat astride of the other cap, and that the fall was due to his own negligence. This raised a question for the jury, and the court should not have taken it from them. He not only said that this was an undisputed fact, but added, 'Of course, the undisputed facts you will have to accept.'

Error is assigned upon the admission of the mortality tables. We have no doubt of their admissibility as an aid to the jury in determining the expectancy of life upon the theory upon which the case was tried, for it was necessary...