Coleman v. Turner Cartage Co.

140 N.W. 539, 174 Mich. 231, 1913 Mich. LEXIS 450

• Court: Michigan Supreme Court
• Decided: March 20, 1913
• Docket: Docket No. 38
• Status: Published

Opinion

Brooke, J.

(after stating the facts). The first seven assignments of error are based upon rulings of the court as to the admission of testimony. Answers to several questions put to plaintiff upon redirect examination^ were excluded. Plaintiff testified fully upon direct, redirect, and cross-examination. The questions to which objection was made and answers to which were excluded were either leading in character, or called for a mere repetition of evidence already in the case. There was no abuse of discretion in the rulings of which complaint is made.

The other assignments all relate to the direction, of a verdict and the denial of a motion for a new trial.

The meritorious question involved is whether, under the evidence, a verdict was properly directed in defendant’s favor upon the ground assigned.

It is urged upon the part of the plaintiff that he was misinformed as to the weight of the tank; and that the defendant is responsible for such misinformation. We think it is clear that plaintiff had quite as good an opportunity of judging of the weight as did the defendant. It may even be presumed that he had a better opportunity; for he assisted in removing it from the depot to the premises where it was to be installed. But, in any event, he was not misled to his injury; for in raising the tank, preparatory to lowering it into its receptacle, it became apparent that it weighed more than 6,000 pounds. This fact was reported to plaintiff by one of his own witnesses some time before the accident happened.

It is next urged that plaintiff was not furnished with suitable appliances with which to do the work. The record shows that a longer and heavier rope was owned by defendant. This rope, plaintiff testified, he could not use, because it could not be reeved through the block. Whether it was plaintiff’s duty to have secured a larger block and to have used the heavier line need not be determined; for the record does not show that the line actually used was inadequate. Plaintiff’s witness Delos testified:

“Q. And it looked all right to Coleman, apparently, except that this line chafed ?

“A. All except the line.

“Q. If the line had not chafed on that sharp edge of the tank there, the accident would not have happened ?

“A. No, sir.”

It is therefore apparent that, in the opinion of this witness, the line parted because of the chafing or cutting, and not because it was too light. But, even assuming that the rope was provided and selected by the defendant, the legal aspect of the case is not changed by that fact. At the moment plaintiff mounted the tank and undertook to free the fraying line, the exact situation was open, apparent, and actually known to him. He says:

"When I walked around there before I went up, it did not look very good to me, and it did not look very much better when I got up there, the way I had to pry it out.”

The plaintiff having equal, if not greater, experience in the line of his work than the officer of the defendant company, who was present, with knowledge of the defect and appreciation of the danger, undertook the performance of the act which resulted in his injury. It must be held, as a matter of law, that he assumed the risk of injury in the premises. Bauer v. Foundry Go., 132 Mich. 537 (94 N. W. 9), and cases there cited; Swick v. Cement Co., 147 Mich. 454 (111 N. W. 110), and cases there cited and digested. See, also, 26 Cyc. p. 1177, and notes.

The judgment is affirmed.

Steere, C. J., and Moore, McAlvat, Kuhn, Stone, Ostrander, and Bird, JJ., concurred.