Thiel v. Verschoor , 235 Mich. 373 ( 1926 )

McDonald, J.

This action is for damages resulting from injuries charged to the negligence of the defendant. The defendant conducts a retail meat market in the city of Grand Rapids. The plaintiff was employed by him as a meat cutter, sausage maker, and slaughterhouse man. In the course of his business the defendant bought and received at his market two barrels of Kellies. A Kelly is known to the trade as part of a pig shoulder, which has the butt cut off. This meat was spoiled when the defendant bought it, and by reason of that fact he got it cheap. The record shows that it was slimy, green, and putrid.. Yet the defendant was willing to retail it to his. customers. He bought it for that purpose. He had some kind of powder which he claimed to have brought from the old country, and which, when rubbed into and over the surface of the meat, gave it a fresh appearance. Some of this powder was given to the plaintiff and he was directed to trim and “doll up” the meat, so that it might appear fit for human consumption. While thus engaged, the plaintiff cut the index finger of one of his hands. The defendant applied iodine and bandaged it, and again directed the-plaintiff to continue his work. The plaintiff protested somewhat because of the fear of getting infection from the putrid meat into the wound on his finger. The defendant assured him that the iodine was sufficient protection from any such danger, and again directed him to proceed with the work. When it was completed the plaintiff’s finger was swollen and painful. It grew worse. A doctor was called in and plaintiff was removed to the hospital. It was there found that he was suffering from streptococci blood poisoning. 'Ultimately it became necessary to amputate the finger. He alleges damages for pain and suffering, for hospital expenses, and medical services. The defendant was not under the compen sation law. At the conclusion of the plaintiff’s case, on motion, the circuit judge directed a verdict against him on two grounds, first, because no negligence on the part of the defendant had been shown, and, second, because the plaintiff was guilty of wilful negligence. The plaintiff brings error.

On the oral argument in this court counsel for the defendant conceded that the evidence did not justify the conclusion of the circuit judge that the plaintiff had been guilty of wilful negligence. Therefore, the record presents for our consideration only the question of defendant’s negligence.

We think that the trial court erred in holding as a matter of law that the defendant was not guilty of any negligence which was the proximate cause of plaintiff’s injuries. The relation of master and servant existed between these parties. It was the duty of the defendant to furnish the plaintiff a reasonably safe place in which to work, and reasonably safe materials upon which to perform the services required of him. The evidence is undisputed that the defendant knew that the circumstances under which the plaintiff was required to work were dangerous; he knew that the meat was decayed, putrid, and diseased; he knew that the plaintiff had an open cut upon his finger; that there was danger of getting infection into the wound by handling meat so filled with poisonous germs; he knew that there was a greater probability of this if the defendant rubbed powder into meat of this kind with his bare hands. With this knowledge he furnished the powder and against the protest of the plaintiff and with the assurance that it was safé, directed him to perform the work which resulted in his injury. In knowingly furnishing the plaintiff with unsafe material upon which to work, and directing that the work be done in a manner that would augment the danger, the defendant failed in his duty and was therefore negligent. At least, it was a question for the jury. The common-law defenses of ordinary contributory negligence and assumed risk are not here available to the defendant. The only questions involved are the wilful negligence of the plaintiff and the negligence' of the defendant. Under the facts in this record, the plaintiff is entitled to recover. The court- erred in directing the verdict against him.

The judgment is reversed, and a new trial granted, with costs to the plaintiff.

Bird, C. J., and Sharpe, Snow, Steere, Fellows, Wiest, and Clark, JJ., concurred.