Toomey v. Eureka Iron & Steel Works

• Decision Date: 21 December 1891
• Citation: 89 Mich. 249,50 N.W. 850
• Parties: TOOMEY v. EUREKA IRON & STEEL WORKS.
• Court: Michigan Supreme Court

50 N.W. 850

89 Mich. 249

TOOMEY v. EUREKA IRON & STEEL WORKS.

Supreme Court of Michigan

December 21, 1891

Error to circuit court, Wayne county; HENRY N. BREVOORT, Judge.

Action by John Toomey against the Eureka Iron & Steel Works to recover for personal injuries caused by the alleged negligence of defendant. Judgment was entered upon a verdict directed for defendant. Plaintiff brings error. Affirmed.

Charles Flowers and R. E. Frazer, for appellant.

Frederick T. Sibley, (James C. Smith, Jr. and Otto Kirchner, of counsel,) for appellee.

GRANT, J.

Plaintiff was a machinist in the employ of defendant, and was at work in the boiler-shop when he received the injury for which he brought this action. Plaintiff was directed by the foreman of the shop to rivet the cast-iron front for two boilers. This front was about eight feet square, and was placed in position in front of the boilers for the purpose of being riveted together. This front consisted of four pieces, which stood along-side each other in an upright position, and temporarily held together by bolts. They were to be permanently united by iron strips riveted to the pieces over their several points of juncture. Plaintiff was shown the work, and directed to complete it as soon as possible. He commenced it about 5 o'clock in the afternoon. He first riveted the strips to unite the two end pieces. Upon proceeding to rivet the strip which was to unite the center pieces, he discovered that the holes did not fit. He reported this to the foreman, who told him to get the casings, bolt them up, and get them through as quick as he could. He thereupon proceeded to chip out a hole for the rivet, and, after giving a blow or two, the front which weighed about 1,800 pounds, fell over upon him, and injured him. The duty alleged in the declaration to be owing by the defendant to the plaintiff was "to provide a safe and suitable place for him to work in, and, in placing this frame or casting in position, to have it properly secured and fastened, so that it would not topple over, and fall upon those engaged in riveting it." The violation of duty alleged is that it "failed to so properly secure and fasten the same, and left the same in an insecure and dangerous position." Upon the close of plaintiff's case the defendant introduced no evidence, and the court directed a verdict for the defendant. Plaintiff's sole ground of recovery is that these pieces were not properly secured or fastened. This was his allegation. He rested his right to recover upon the bare proof that the pieces fell over. He introduced no evidence tending to show how they were secured or fastened. The record leaves the court to mere conjecture as to how they were fastened or secured in place; as to whether they were secured in the customary manner and, if so, whether that manner were such as experience had proven to be reasonably safe. Plaintiff and two other witnesses testified upon this point, and they all say they do not know how they were braced, nor whether they were braced at all. The frame was about three inches in...