Shadford v. Ann Arbor St. Ry. Co.

• Decision Date: 19 September 1899
• Citation: 80 N.W. 30,121 Mich. 224
• Court: Michigan Supreme Court
• Parties: SHADFORD v. ANN ARBOR ST. RY. CO.

80 N.W. 30

121 Mich. 224

SHADFORD v. ANN ARBOR ST. RY. CO.

Supreme Court of Michigan

September 19, 1899

Error to circuit court, Washtenaw county; Edward D. Kinne, Judge.

Action by John H. Shadford against the Ann Arbor Street-Railway Company. Judgment for plaintiff, and defendant brings error. Affirmed.

Isaac N. Payne (O. E. Butterfield, of counsel), for appellant.

A. J Sawyer, for appellee.

MOORE J.

This case has been here before, and is reported in 111 Mich. 390 69 N.W. 661. A reference to that case will aid in understanding this one, and will make it unnecessary to make so full a statement as would otherwise be necessary. Upon the second trial the plaintiff recovered a judgment, from which defendant has appealed. As to the assignments of error in relation to the admission of evidence, we deem it unnecessary to say more than that we think the assignments are not well taken. It is claimed by the defendant that the vise of which complaint is made was in general use by railway companies in the same or similar lines of work, and the proof offered by it established this claim and the judge should have directed a verdict in its favor. If this claim was uncontroverted, as was said when the case was here before, that would be a complete defense, but upon this trial the claim was controverted. It is insisted by the plaintiff that the tool was not a reasonably safe one for this kind of work; that, while it was in general use by electric railways, telephone and telegraph companies for many purposes which did not subject it to much strain, it was not in general use for drawing up trolley wires upon a curve under the conditions which obtained when the accident happened. Witnesses were produced whose evidence tended to show the truth of this contention. Some of them claimed to have been employed upon the same lines of road upon which witnesses for the defense claimed the instrument had been used, and gave testimony contradicting the testimony of defendant's witnesses about the instrument being in use upon those lines. There were so many of these witnesses, testifying about so many roads, and the testimony was so contradictory, that the question of whether the instrument was in common use in the same or similar lines of work became a controverted question of fact,--a question not competent for the court to decide as a matter of law, but a question of fact very proper to be left to a jury under proper instructions. Railroad Co. v. McDade, 135 U.S. 554, 10 S.Ct. 1044; Vinton v. Schwab, 32 Vt. 612. It is claimed by defendant that the vise was a simple tool, and plaintiff could see as well as any one whether it was a safe one to use or not, and that he could also soon learn what were the dangers incident to the stringing of the trolley wire around curves. Counsel say the servant is held by his contract of hiring to assume the risk of injury from the ordinary dangers of employment; that is to say, from such dangers as are known to him, or discoverable by the exercise of ordinary care on his part. Hayball v. Railway Co. (Mich.) 72 N.W. 145, citing Beach, Contrib. Neg. � 370; Kean v. Rolling Mills, 66 Mich. 277, 33 N.W. 395. The rule is too well settled to be longer open to discussion that when a servant enters upon employment which is, from its nature, dangerous, he assumes the usual risks and perils of the service, and this is especially so as to those risks which require only the exercise of ordinary observation to make them apparent. Railroad Co. v. Frawley (Ind. Sup.) 9 N. E. 594, citing Engine Works v. Randall, 100 Ind. 293; Railway Co. v. Adams, 105 Ind. 151, 5 N.E. 187. See, also, Kean v. Rolling Mills, 66 Mich. 277, 33 N.W. 395, citing Davis v. Railroad Co., 20 Mich. 105; Railroad Co. v. Dolan, 32 Mich. 510; Cooley, Torts, 542. The rule is undoubtedly as contended for by the counsel, but it is the claim of plaintiff that he was not acquainted with the dangers of the employment, and was not familiar with the tools used in the work of this character. He claims he was told the vise was a suitable tool for this work, that it would hold anything, and that he relied upon this statement; while the 'danger attending the use of this vise consisted of its treacherous nature. There was nothing to indicate, in its construction, that at times it would slip and at other times it would not slip when exactly the same...