Kinney v. Folkerts

• Decision Date: 27 February 1891
• Citation: 48 N.W. 283,84 Mich. 616
• Court: Michigan Supreme Court
• Parties: KINNEY v. FOLKERTS et al.

48 N.W. 283

84 Mich. 616

KINNEY v. FOLKERTS et al.

Supreme Court of Michigan

February 27, 1891

Error to circuit court, Alpena county.

Action for personal injuries. For statement of facts, see 44 N.W 152. Plaintiff obtained judgment. Defendants bring error.

Frank Emerick, (John C Shields, of counsel,) for appellants.

Turnbull & Dafoe, (Depew & Rutherford, of counsel,) for appellee.

MORSE J.

This case has been in this court before, and will be found reported in 78 Mich. 687, 44 N.W. 152. A full statement of the facts, appearing on the first trial of the case, will be found in the opinion of Mr. Justice LONG, there published. Upon a second trial in the Alpena circuit court, the plaintiff has again recovered a judgment of $5,000, and the defendants bring error.

There is but little difference in the testimony of the two trials and we shall refer only to such differences as are claimed by defendants' counsel, and such other facts as may be necessary in determining the question whether or not any error was committed on the last trial warranting a reversal of the judgment. The plaintiff's counsel insists that the whole case, upon the evidence, is substantially the same as upon the first trial, and that the law of our opinion in 78 Mich., 44 N.W. Rep., supra, must govern the case now here. If it be true that there is no substantial difference in the case of the plaintiff as made by the testimony in his behalf on the two trials, then it must follow that the question as to his contributory negligence was properly submitted to the jury on the last trial, as we held that such question was rightfully submitted to them on the first trial. See Kinney v. Folkerts, 78 Mich. 687, 44 N.W. 152. The only differences pointed out to us by defendant's counsel are two, to-wit: First, on the last trial he testified that he looked up as he went in to see if the blower was running, while on the first trial he did not say anything about looking at the blower for that purpose; second, on the first trial he testified that he had the elbow of the pipe on his arm when he fitted it to the blower, while on this trial he says he fitted the pipe on the blower before he put his hand in. As regards this last difference in his testimony we cannot see that it would make any difference, as a matter of law, in his negligence, which statement was correct. The argument that he would be more liable to feel the suction of the blower in motion in the last case than in the first, and consequently be advised that the blower was moving, is one for the jury. I do not think that a court, some of whom never saw a blower, either stationary or in motion, are authorized to hold as a matter of positive law that plaintiff must have felt this suction in time to acquaint him of his danger and to prevent it. Nor do I think the records in both cases bear out the assertion that there was any difference in his statement in this respect between the first and last trial. See Kinney v. Folkerts, 78 Mich., at page 692, 44 N.W. Rep., at page 153, To view preceding link please click here where plaintiff's direct testimony is quoted on the first trial. He says: "We both ran in quick, and I took this elbow, and stuck it on the blower, and had the bolts in my hands, and jumped onto a horse, and run my hand right into the blower." The plain inference from this testimony is that he put the blower on first, and then jumped upon the horse, and ran his hand into the pipe and into the blower. In relation to his looking up at the blower as he went in, his testimony is that he took a quick glimpse "at the machinery of the blower as he rushed in, and it looked just as he had left it." It must be remembered that the plaintiff, as he testifies, was out of the buliding at work. The blower had been stopped, and was not running when he left it. It was not to be run again until he had fixed the pipe, and he supposed that it was still. McNally, one of the defendants, while plaintiff was working, under this supposition, comes to him, and says: "Come in quick, we are out of shavings in the engine-room, and I want to start the blower; come in quick." Plaintiff, again advised by this statement that the blower is stationary, rushes almost on a run into the mill, filled with the clash and noise of other machinery in motion, as well as the blower; casts a hurried glance upwards; everything seems all right, and as he left it, and he claps the pipe upon the opening of the blower, and runs in his hand to fit the bolts, and is injured. All this is the work of a moment, and under the idea that there was no danger; and there would have been none, if the blower had been in the condition he was led to suppose it was by the acts and words of one of the defendants. If the statement of the plaintiff is a true one, he was thrown off his guard, and it was for a jury to say whether an ordinarily prudent man would have done as he did under like circumstances; and the fact that he took a "quick glimpse" of the blower, as he rushed in in the hurry of the moment, cannot alter the case so as to take it out of our former ruling, that the question of his negligence was for the jury. The theory of the defendants, as opposed to the story of the plaintiff, is that the blower was not stopped at all that morning, and that plaintiff was not led in any way to believe that it was not running; that he had no call from McNally or any one to go near the blower, and yet that he deliberately walked into the mill, went around to the blower, got upon the horse, and, steadying himself with one hand, put the other, without any cause or known reason, into the opening of the blower, and thereby lost his fingers. Having to make a choice between these two theories as to the facts, it is not at all surprising to one having any knowledge of human nature that the plaintiff has recovered two verdicts. The argument, which was the main contention here, that the plaintiff was negligent in law, must be considered, therefore, settled by our former opinion, and the question of fact has been settled by the jury. We also think that the negligence of the defendants was properly submitted to the jury, who have also settled that question against them.

The court permitted the jury to examine the mill, but would not allow the defendants to run the blower in their presence. As the blower was not constructed the same as when the plaintiff was injured, it having been altered considerably since that time, we think there was no abuse of discretion in the court's action.

It is complained that the court erred in refusing the evidence offered to be shown by a witness, Henry Michaels. He was asked, after he had testified to the changes that had been made in the blower since plaintiff had been hurt, if, before such changes and after the 15th of October, 1888, the plaintiff being injured on the 8th, he had occasion to use and handle the blower. This was objected to, and then defendants' counsel offered to show by the witness that on the 16th of October, 1888, and about a week after the accident to plaintiff, and...