Van Dusen v. Letellier
| Decision Date | 28 December 1889 |
| Citation | 78 Mich. 492,44 N.W. 572 |
| Court | Michigan Supreme Court |
| Parties | VAN DUSEN v. LETELLIER et al. |
Appeal from circuit court, Osceola county; J. BYRON JUDKINS, Judge.
Action by Melvin E. Van Dusen against Francis Letellier, impleaded with T. Stewart White and Thomas Friant, to recover damages for personal injuries. Francis Letellier appeals from a judgment for plaintiff.
J. C. Fitzgerald, (Charles Chandler and Francis A. Stace, of counsel,) for appellant.
F H. Peters, for appellee.
The plaintiff, on the 8th day of May, 1888, was severely injured by a fall, while in the employ of the defendants, sorting lumber at their mill in Rose Lake, Osceola county. He had been working for them but one day and a half. The mill-yard was furnished with a number of docks connected with the mill. These docks were arranged in parallel lines running north and south, and connected by two or more cross-docks, and having tramways on the ground below and between them. These docks were about 12 feet wide, and from 7 to 16 feet high from the ground. They were on a level with the platform of the mill at the end where the lumber came from the saw. They were built of timber, and covered with two-inch plank. As the lumber was sawed, it was loaded upon carts, and wheeled out upon these docks. It was sorted and distributed along the sides of the docks opposite and above the piles on the ground, ready for the pilers, who took it from the docks, and piled it on the spaces along the tram ways, when it could readily be loaded on the tram-cars. At the time of his injury the plaintiff was engaged in wheeling lumber from the mill, pushing the cart before him, loaded with green hemlock plank, upon one of the central docks known as "Dock 6." Another cart, also loaded with hemlock plank, was being pushed ahead of him by a young man named Henry Oakes. On the sides of this dock, waiting for the pilers, was an unusually large quantity of lumber, which had been placed there during the day by the plaintiff and others and this had accumulated to a large amount at the place where the accident occurred. There was also at this place a short plank, accidentally left by some one, and which did not belong there. The wheel of Oakes' cart struck this short plank, and shook up and disarranged Oakes' load, so that he had to stop and straighten it up. This stopped the cart of plaintiff, who went forward, and helped Oakes to rearrange his load. As plaintiff stepped back to his own cart, and was about to start it, the dock gave way, and the plaintiff fell with it. The negligence alleged in the declaration is that, at the point where the plaintiff was injured, the defendants had grossly, carelessly, and negligently allowed the posts, timbers, and braces of which the dock was constructed to become rotten and in a dangerous condition, and without the knowledge of the plaintiff, or notice to him. The plaintiff recovered a verdict and judgment for the sum of $3,250.
There is no claim of any contributory negligence on the part of the plaintiff; but defendants' counsel strenuously insisted on the trial, as he now insists here, that there was not a particle of evidence tending to show any negligence on the part of the defendants. It is claimed that the portion of the dock that fell was built only about five or six years before the accident; that it is not contended by plaintiff that the dock was improperly constructed; and that it was clearly proved, without any contradiction, that it was built of sound material, and in a good and substantial manner. The mill and docks were built by Kellogg & Sawyer. The defendants purchased the property in January, 1886. It is contended that the proofs show that at the time of the purchase they made a careful and particular examination of the docks, and all were found to be in a safe, good condition, and sound; and that they have ever since kept and employed men whose duty it was to inspect the docks, and keep them in repair, and have always provided sufficient and suitable materials for that purpose. That no charge is made by the plaintiff that the persons so employed to inspect and repair the docks were incompetent, untrustworthy, or in any way unfit for the duty assigned them; and that it was proven without contradiction that they were careful, competent, skilled, and trustworthy. That this dock, where the injury occurred was, within a few days of its falling, examined by one of these men, Mr. Reasner, and as careful and thorough an inspection made as was possible without taking it to pieces. No defect was discovered. That the dock would not have given way had it not at the time been overloaded with a great quantity of lumber, coupled with the further fact that it had a concealed defect, which could not possibly have been discovered without the taking of the dock to pieces. That there is no evidence tending to show that either of the defendants or their foreman, Holden, had any notice of this hidden defect; and that the proofs show they had no such notice. Upon this claim of facts, the court below was requested to take the case from the jury and to direct a verdict for the defendants. The dock was built upon posts inserted in or resting upon mud-sills at the ground. These posts were of pine, 6 by 8 inches, and the mud-sills, 6 by 8, 6 by 10, and 8 by 8. The stringers were 6 by 10. They were halved at the post where they joined together, and the post was tenoned to the two halves clear through, and a plank nailed on the outside to prevent their hauling apart. On each side of the post were braces, 4 by 4, from the stringers to the post, which were mortised and tenoned in. There were also other braces, which made the support of the docks sufficient and safe as long as the material was sound of which they were composed.
It appears from the testimony on the part of the plaintiff that the cause of the falling of the dock was the breaking of the stringers and posts sustaining the floor of the dock at the place where the plaintiff and the others stood; that the stringers and posts were rotten where the stringers were mortised or tenoned into the posts. At least one stringer and one post, where the stringer was tenoned in, on the east side of the dock, were broken on account of rottenness at the place where they were mortised together. This rottenness was described by some of the witnesses as "a sort of dry-rot." None of the plaintiff's witnesses saw this rottenness until after the break, and they do not state whether this rottenness extended to the surface of the timber so that it was discernible. On the part of the defendants, it was shown that, where the break occurred, only one post broke, and that on the east side of the dock; that it broke where the stringer was mortised in, and broke off the stringer where it was tenoned; that this was occasioned by dry-rot on the inside of the timber; and that the outside looked as good as any of the timber in the dock; and that this dry-rot could not have been discovered by an examination of it, without cutting or boring into it. The evidence on both sides tends to show that planks were nailed over these tenons or mortises, and that water would run in there, and be likely to cause dry-rot.
The defendants contend that the proof is indisputable that the portion of the dock that fell was built in 1882 or 1883, but upon this point we think there is a conflict of testimony and, while the weight of it is certainly with the defendants, the trial court or this court would not be authorized to base any legal assumption upon it. It is true, however, as claimed by defendants, that the defect or rottenness of the particular post and stringer which caused the injury could not have been ascertained by an ordinary inspection of the eye alone. The outside of the timbers presented no appearance of the decay or dry-rot within; but it is also true that, at the point where the post and stringer gave way from this rottenness, the timbers were concealed from view by the plank nailed across and covering the mortise. This was a place where the rot would be apt to set in, and the question arises whether any adequate inspection could be made without taking off these planks. This was not done by the persons whose duty it was to inspect and repair the docks. But the evidence on the part of the defendants tended to show that they kept skilled and competent men, whose duty it was to examine these docks, and repair them; that the defendants were seldom present at the mill, and had no knowledge of any defect or rottenness in the timbers of the dock. The circuit judge charged the jury that the persons so employed to inspect and repair these docks were fellow-servants of the plaintiff, but refused to instruct them as requested by defendants' counsel in their ninth request: "If you find from the evidence in the case that a short time before the accident occurred, and before the defendants commenced to use said docks for the wheeling and piling of lumber in the spring of 1888, they caused said docks, including the dock in question, to be examined and inspected by proper and competent persons, whose duty it was to carefully examine and inspect the said docks as to their condition of repair, and the soundness of the timbers and materials composing the same, and their condition as to safety, and being of sufficient strength for the purpose for which they were used, and to support the lumber and materials to be piled thereon, and the men and carts to be used thereon, in the ordinary and usual manner of using the same, and to put the same in a state of good repair, and in such a condition that the same should be safe, and of sufficient strength to support such lumber, materials, men, and carts; and if the defendants afterwards and...
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