Noble v. Bessemer S.S. Co.

• Decision Date: 17 June 1901
• Citation: 127 Mich. 103,86 N.W. 520
• Court: Michigan Supreme Court
• Parties: NOBLE v. BESSEMER S. S. CO.

86 N.W. 520

127 Mich. 103

NOBLE v. BESSEMER S. S. CO.

Supreme Court of Michigan

June 17, 1901

Error to circuit court, Bay county; Nelson Sharpe, Judge.

Action by William B. Noble against the Bessemer Steamship Company. From a judgment in favor of plaintiff, defendant brings error. Affirmed.

T. A. E. & J. C. Weadock, for appellant.

Pierce & Kinnane, for appellee.

MOORE J.

This is an action on the case for the recovery of damages on account of the loss of an eye. From a judgment of $4,000, obtained by plaintiff, defendant has brought the case here by writ of error.

Plaintiff was employed as calker upon a vessel being constructed at F W. Wheeler & Co.'s yard in West Bay City by defendant. Wheeler & Co. had commenced the work, but failing in the performance of its contract, the defendant took the yard and crew, and proceeded to finish it. Plaintiff commenced working for Wheeler & Co., and continued when defendant took over the operation of they yard. Plaintiff and his witnesses testified that on July 26, 1899, plaintiff was engaged in striking with a riveting hammer a soft-head held against a rivet then being put in on the bulkhead bar of a vessel by one John Lepan. A piece of steel flew from the soft-head, and struck him in the eye, putting it out. The soft-head in question was made from a riveting hammer, and it is claimed that the head which was to be struck with the riveting hammer was not properly tempered. Plaintiff had been a riveter for four years and upward, and claims he knew nothing about the condition the soft-head in question was in. The defendant furnished the tools used by its employ�s. There were between 50 and 60 riveting gangs then at work for defendant in the yard, each gang consisting of four men,--a head riveter, an assistant riveter, a heater, and a holderon. John Lepan was head riveter of the gang in which plaintiff was working. A tool storeroom was maintained by the defendant, in charge of a keeper named Gereoux, whose duty was to give out and furnish tools to the workmen. It is the claim of the plaintiff that Lepan went to the storeroom for a soft-head, and Gereoux gave out one to him, but before using it at all Lepan returned it to Gereoux, and complained of its defective condition. Lepan testified as follows: 'I did not pick out the tool myself. Gereoux gave it to me. He was the man in charge of the storeroom where the employ�s were accustomed to go for tools to do their work. The soft-head which he gave me was made from a broken riveting hammer, the hammer end being cut off. It was too hard, because it had been tempered as a riveting hammer, and the temper had not been taken out so to make it a soft-head. I took it back to the storeroom the same day I received it, and wanted to get another one. Mr. Gereoux told me, if I could find a better one, to take it; but he said that was the best one he had in the storeroom. I looked over the rest of the soft-heads in the storeroom, and they were all worn out and not fit for use. He had them thrown in one pile of cull tools. I told Mr. Gereoux that I did not want to use the tool. He said, 'I will give you an order to go to the blacksmith and get it fixed.' He gave me an order to go to the blacksmith, and the blacksmith told me he could not fix any more tools unless I would get an order from Mr Gilkey, who was foreman of all the riveters on all the boats. The blacksmith referred to was the man employed by the company to repair tools for the machine shop and the riveters. That was his business. I then went to Mr. Gilkey for an order, and told him what was the matter with the tool. He said: 'John, I cannot give you an order. I have got to finish those boats with the tools we have got. I was told by the company not to make any more expense on these boats. They would have to be done with the tools we had. To do the best we could.' I then went right down, and went to work. That was the day before Noble started to work with me. After Noble came, we used the soft-head on three rivets. We hadn't finished the third one; just two and a half. We were finishing the third one, when this piece broke, and Noble was injured. We had not used it before he was injured, and the soft-head had remained without use from the time I took it to the shop until the time Noble was hurt. It was kept in a keg, with other tools, except when we had to shift from one boat to another. I did not tell Noble that I did not think it was a safe tool to work with, because, if I told him, he would have quit, the same as the other one quit before, and I would be out of work.' Plaintiff also claimed that at the time of the injury he was striking the soft-head as riveters usually do, and Lepan was holding it against the rivet in the usual way, and that he did not know the dangerous condition of the soft-head. The defendant denied that the tool was not reasonably safe for use, and also denied Lepan's version of his obtaining the tool.

In his charge to the jury, after stating the claims of the parties the trial judge said: 'The claim of the plaintiff--and I say to you the only ground in this case on which the plaintiff can recover--is the claim that the soft-head which he struck with that hammer was not a safe tool, was not reasonably safe to be used by men engaged in riveting as these men were at that time. Now, a hammer or soft-head might be safe when given out to workmen, and it might become unsafe by reason of its use by them; but I say to you as a matter of law in this case, and I wish you to distinctly remember that part of it, that the defendant in this case is not liable in case you find that the defect in this soft-head, if you find it was defective, was caused by the use that it had had. The plaintiff claims that at the time Lepan got it from the storehouse, or at the time he first commenced to use it, he discovered that it was not a safe tool to use, and if you find that to be the fact,--if you find that at the time Lepan got this soft-head from the storehouse it was not then a reasonably safe tool with which to do the class of work which it was expected by the defendant Lepan and those associated with him would do,--then the company is negligent. The law imposes the duty upon those who employ laborers and who furnish them with tools to use to see to it that those tools are reasonably safe and fit for the use for which they are intended; and when Lepan went to the storehouse, if he was given this tool by the person whose duty it was to keep those tools and deliver them out to the men, that was a representation by the defendant itself that that tool was reasonably safe and fit for use. Now, it appears from the testimony that Lepan, before he used it, discovered that it was not so, as he claims. That would not be any defense to this defendant in this case unless you find that it became so from use. If this tool was reasonably safe and fit for use at the time Lepan got it, then the company has done all that their duty called upon them to do; but when Lepan took it back, and asked for another, the company, while they should have given him another, or should have put this in proper order as a matter of mere right, were not under any legal obligation to do it. He knew that the tool was unsafe, and it was his option either to work with it or to quit. If he continued to work with it after he knew it was unsafe, he was guilty of just as much negligence as the company was, and you haven't any right to award a verdict against the defendant in this case by reason of the fact that they refused to repair this tool for Lepan. That is not in the case at all, as far as your consideration of it is concerned. The first question for you to determine, and the important question, is, what was the condition of this soft-head at the time it was furnished to Lepan to work with? It seems that he was the boss or the head of the gang of riveters. He had charge of that particular gang, and this soft-head was furnished to him for the use of that gang. Now, the question is, what was the condition of it at that time? The plaintiff claims it was unsafe to use; that it was a broken riveting hammer; and that the temper had not been abstracted from the head of it that had been broken. Now, from the testimony of the witnesses in this case you must determine what you believe the fact to be. If you find that the hammer at that time was in a reasonably safe and fit condition for use, then the plaintiff in this case cannot recover, no matter what you may find the other facts to be. On the other hand, if you find that that hammer at that time was not a reasonably safe tool with which to perform the work that the company designed for it, then the next question for you to determine is, had the plaintiff, Noble, himself knowledge of the fact that it was unsafe? If he had, and he continued to use it after he had that knowledge, then he cannot recover in this case. After a man discovers that a tool is unsafe, if he continues to use it under the circumstances detailed by the witnesses in this case, without protest to his employer, and he did not protest, and I might add further, without a promise to fix it up, and ask him to use it a little while, until they could get a chance to fix it, those are the only circumstances under which he would be relieved of the knowledge that he had, if you find he did have it, that the tool was unsafe. As bearing upon that question whether or not Noble had knowledge that his tool was unsafe, if you find it was unsafe, you have a right to consider the manner in which the work was being carried on. You have a right to consider the fact as to whether it required a careful examination of the tool itself to determine its condition, or whether one could tell by a casual glance at it. You have heard the...