Welch v. Brainard

• Decision Date: 30 December 1895
• Citation: 108 Mich. 38,65 N.W. 667
• Court: Michigan Supreme Court
• Parties: WELCH v. BRAINARD.

65 N.W. 667

108 Mich. 38

WELCH v. BRAINARD.

Supreme Court of Michigan

December 30, 1895

Error to circuit court, Macomb county; James B. Eldredge, Judge.

Action by Charles L. Welch against Addison H. Brainard. Judgment for plaintiff. Defendant brings error. Reversed.

Dwight N. Lowell (James G. Tucker and Greer & Williams, of counsel) for appellant.

Canfield & Spier, for appellee.

HOOKER J.

The plaintiff was injured by the fall of a quantity of ensilage upon him while engaged in removing a quantity from the defendant's silo for the purpose of feeding defendant's stock, which was plaintiff's daily duty as farm laborer. He recovered a verdict in an action based upon the alleged negligence of the defendant-First, in not properly storing the ensilage, by reason of which it became rotten, and more likely to slide and cave off than it would otherwise have been; second, in not informing the plaintiff of the danger of undermining it, but, on the other hand, directing him to remove it in that manner. The defendant has appealed, and alleges error upon the court's refusal to direct a verdict in his favor.

The silo consisted of a building about 21 feet square, and was filled with ensilage to the depth of 10 feet. According to the testimony of the plaintiff, a section 4 feet wide extending across the room, was being taken down from the top upon discovering which, the defendant directed plaintiff to remove it from the bottom, after which he did so, until the 4-foot section was taken out to the floor. In removing it from the bottom, he said that he used a fork, and dug into the mass for a foot or two, and the ensilage would drop down. He was asked if he began digging from the bottom after he had his talk with the defendant, and answered, "I did, taking it right from the bottom. Q. And then you worked a section right up, did you? A. I kept working from the bottom, and taking a dungfork and jabbing into it, and I got enough that way. *** It would naturally drop down. *** Q. What was the condition of the silo, or the ensilage, at the time you went there for your last basketful? A. The condition was that it was two feet under the bottom of the ensilage. Q. How far did that extend? A. It run up, probably, two or three feet. Q. As I understand, it was worked in from one to two feet? A. Yes, sir. Q. I asked you if the ensilage had been worked, from the front of the silo, back two feet, in a perpendicular manner. *** A. It went up with a slant." He stated that he was feeding 68 bushels a day, and that he was getting the last of 34 baskets when the slide came. He was stooping down, and had no warning, and could not escape. From this testimony, it is plain that the pile of ensilage overhung its base. He had taken out 34 bushels from the bottom of the new section; the first section having been finished that morning, and carried out,...