Williams v. Wood

• Decision Date: 03 October 1932
• Docket Number: No. 128.,128.
• Parties: WILLIAMS v. WOOD.
• Court: Michigan Supreme Court

260 Mich. 322

244 N.W. 490

WILLIAMS

v.WOOD.

No. 128.

Supreme Court of Michigan.

Oct. 3, 1932.

Appeal from Circuit Court, Kent County; Willis B. Perkins, Judge.

Action by Louis Williams against Frank F. Wood. From a judgment in favor of defendant, plaintiff appeals.

Reversed, and remanded for a new trial.

Argued before the Entire Bench.Joseph R. Gillard, of Grand Rapids (George S. Baldwin, of Grand Rapids, of counsel), for appellant.

Clare J. Hall, of Grand Rapids, for appellee.

BUTZEL, J.

Louis Williams of Evart, Mich., plaintiff, was engaged to work about the cabins and to act as a fisherman's guide by his fellow townsman Spencer Postal, at the latter's fishing and hunting camp located in the vicinity of a number of small lakes in Northern Ontario, not far from the Canadian Soo. Plaintiff was twenty-one years of age, six feet four inches in height. Fishermen who went to Postal's camp employed and paid the guides furnished them. On June 11, 1930, defendant Frank F. Wood and a companion, both experienced fishermen, employed plaintiff to guide and row a boat near the shore of Devil's Lake. While fishing, defendant sat in the bow, his companion in the stern, and plaintiff in the middle of the boat, about five or six feet away from defendant. Plaintiff, with his back towards defendant, rowed the boat parallel with and not far from the shore, towards which the two fishermen cast at right angles to the boat.

Instead of using his own rod, defendant borrowed from Postal a steel one, about five feet in length. It was equipped with a reel, around which twenty-five to thirty yards of line were wound, and at the end of the line, in the order named, were a sinker, a one-inch copper leader, a spinner, consisting of a metal rod on which two spoons were attached, and a trout hook baited with an angle worm. The length of the tackle from the end of the hook to the farthest end of the sinker, when pulled taut to the end of the pole, according to defendant's testimony, is ten to fifteen inches. The reel is operated with the thumb used as a brake. When the cast is made, the thumb is loosened, the line runs speedily out, and when the line reaches the spot aimed at by the fisherman, he pushes his thumb against the reel and the lure drops into the water. When casting a good fisherman keeps his eye on the spot at which he is aiming.

After the party had been fishing for less than an hour, during which defendant had no success while his companion caught two speckled trout, defendant attempted another cast. In so doing, the tip of his rod first struck plaintiff on the side of the head, and instantly thereafter the hook penetrated his eye, causing such severe injuries that the eye had to be removed from its socket. After the hook struck plaintiff, the rod was dropped down to the side of the boat. Only about four feet of line had been unwound and the cast did not leave the confines of the boat. It is conceded that there was no back lash, no sudden movement of the boat, nor is it claimed that the line had become tangled or snarled.

Plaintiff attributes the accident wholly to defendant's negligence. The latter admits that it would have been dangerous to make a side cast with defendant in the middle of the boat. He claims that the very fact that plaintiff was hooked in the eye indicates that he made an overhand cast, and that the injury was due to an accident for which he should not be held liable in damages. It appears to be conceded that, if the accident had been caused by a sudden movement of the boat or a back lash, and the cast had been overhand, plaintiff would not be entitled to recover. Plaintiff claimed that the accident was due to a side cast, but admitted that he was unable to see how the cast was made, as his back was turned toward defendant. He claims, however, that even if it had been an overhand cast, it was so negligently made by defendant, an experienced fisherman, as to render him liable for the untoward results. Plaintiff claimed and defendant, called as an adverse witness under the statute, denied, that, immediately after the accident, defendant said, ‘It was my fault, I hooked you,’ and that it would not have happened had he used his own pole. An Ontario lawyer testified that under the laws of the province, defendant cannot raise a defense under any theory of assumption of risk by the plaintiff.

At the close of plaintiff's proofs, the trial judge directed a verdict for defendant, holding that, in any event, the cause of the accident could only be determined by pure conjecture, and that the circumstances made it extremely improbable that the cast was a side one.

A number of questions are raised on appeal. The case presents an unusual state of facts. The testimony is very meager, and neither from the briefs nor a diligent search on our part have we been able to find any case involving similar factual set-up. Analogous ones are referred to. The golf cases are not helpful, for both players, caddies, and spectators, knowing that balls are apt to go wayward on the wide expanse of a golf links, can and should be on guard so as to avoid being struck by a ball or a club. The facts in the cases differ and in some of them golfers have been held liable. In Cleghorn v. Oldham, 43 Times Law Rep. 465, and Castle v. St. Augustine's Links, Ltd., 38 Times Law Rep. 615, the duty is imposed upon players to use care with regard to the safety of others about them. Also see Schlenger v. Weinburg, 107 N. J. Law, 130, 150 A. 434, 69 A. L. R. 738;Biskup v. Hoffman, 220 Mo. App. 542, 287 S. W. 865. These cases impose a duty upon the golfer to call out a warning to those on the links in the direction of his intended shot, or in the actual course of the ball. In the instant case, such a warning would have been useless, for plaintiff, with his back towards defendant, could not watch him cast. The liability of a golfer for poor shots is discussed in ‘Legal Questions relating to Golfing and Golf Courses,’ 31 Scottish Law Review 194. It has been held repeatedly that a golfer is not liable for making a poor shot, and that persons playing the game take all the usual risks that attend it. See Stober v. Embry, 243 Ky. 117, 47 S.W.(2d) 921;Benjamin v. Nernberg, 102 Pa. Super. Ct. 471, 157 A. 10. In Everett v. Goodwin, 201 N. C. 734, 161 S. E. 316, it was held that where the evidence was conflicting and there was testimony that the player had failed to shout ‘fore,’ negligence was a jury question.

The baseball cases hold, as a rule, that a player cannot be held liable to a spectator struck by a foul ball. Brisson v. Minneapolis Baseball & A. Ass'n, 185 Minn. 507, 240 N. W. 903. In Ingerson v. Shattuck School, 185 Minn. 16, 239 N. W. 667, defendant was absolved from liability for injuries suffered from a collision with two football players who rolled off the field while engaged in a hard tackle.

The hunting cases also, while claimed to be analogous, are not pertinent to the facts in the case, for the law exacts a much greater degree of care from persons using firearms. See Chaddock v. Tabor, 115 Mich. 27, 72 N. W. 1093;Bahel v. Manning, 112 Mich. 24, 70 N. W. 327,36 L. R. A. 523, 67 Am. St. Rep. 381, and also the cases collected and annotated in 53 A. L. R. 1205.

The nearest approach to the instant case is that of Toca v. Rojas, 152 La. 318, 93 So. 108. The court was divided as to whether there was a showing of negligence. The prevailing opinion held that there was...