Sargee v. Clark Can Co. , 126 Mich. 508 ( 1901 )

Montgomery, C. J.

(dissenting). I am not satisfied that the record is wholly devoid of evidence tending to show negligence on the part of the defendant. I do not understand the rule which requires the plaintiff to affirmatively show negligence to go further than this: That it must be shown that the machinery of defendant was in a condition likely to produce injury to an employe before an employer can be made liable.

The present case is distinguished from Redmond v. Lumber Co., 96 Mich. 545 (55 N. W. 1004). In that case it was said:

“If there were anything to show that the machine had been out of order, and that its working was spasmodic or uncertain, there might be room for the contention that defendant was negligent in not keeping it in repair.”

There is some evidence of that character in the present record. I recognize that it is slight, but it is enough, in my judgment, to carry the case to the jury.