Merryman v. Hall

91 N.W. 647, 131 Mich. 406, 1902 Mich. LEXIS 659

Opinion

Hooker, C. J.

A former review of this cause is reported in 124 Mich. 263 (82 N. W. 881). Upon the last trial it was submitted to the jury upon two grounds of negligence, viz.: First, that of the fireman; second, a want of reasonable inspection of the boiler. The cause is here upon over 100 assignments of error. We have patiently examined each of them, and feel justified in saying, as to some of them, that, if counsel had as carefully examined the record, they could not. have failed to see that they were groundless, and many of them are frivolous. Of them all we find but two that we care to mention specifically, viz., the fortieth and forty-second. The defendant’s counsel sought to show that it was not practicable to remove the flues from the boiler for the purpose of ascertaining the condition of the braces. Again, they sought to show to the jury the construction of the boiler. .This testimony was excluded.

It may well be doubted whether one who owns a boiler should be expected to remove all of its flues periodically to ascertain whether the braces áre defective, and a jury, before passing upon that question, should be allowed to understand the construction of the boiler, and the usual practice among those using similar ones; for the question is whether ordinarily prudent and careful men would do so. If not, it is not negligence to omit it. This testimony should have been received.

We are constrained to reverse the judgment, but in the taxation of costs the appellant will be allowed but half of the items for printing the record and brief.

Moore, Grant, and Montgomery, JJ., concurred.