Citation Numbers: 79 Mich. 204
Judges: Grant, Other
Filed Date: 1/17/1890
Status: Precedential
Modified Date: 9/8/2022
The declaration alleges that plaintiff was employed in the planing-mill of Morton & Backus; that he was engaged in oiling the buzz-saw as a part of his duty; that defendant negligently and carelessly hit him with a board, pushing him against the saw, which was in rapid motion, and injured him; and that the plaintiff was in the exercise of due care.
The defendant was not an employé of Morton & Backus. They had planed some lumber for him, and defendant, by their permission, was using this circular saw in trimming the lumber himself. Plaintiff testified that the foreman of the mill, Mr. Furnier, told him to go and oil the saw; that Starrat was burning it up; that he went over and told Starrat that he was burning the saw; that Starrat stepped back; that he had oiled the left-hand shaft, and was oiling the right-hand shaft, when defendant struck him in the back with a board, and shoved him against the saw. The defendant was sworn, and denied the conversation. Said he did not know plaintiff was there, and did not hit him. Furnier testified that plaintiff was under his instructions, had nothing to do with the saw, and had no right to do anything in relation thereto without his instructions; that it was a rule of the mill that the saw should not be oiled when in motion, and he so informed the plaintiff. The defendant then asked the witness if he- had such a conversation with plaintiff, to which question the plaintiff objected as immaterial; and the court sustained the objection.
The question should have been allowed. Plaintiff alleged in his declaration that he was in performance of his duty. If he was not performing a duty, his right to recover would be very questionable, unless there was will
“‘If plaintiff had no right or duty to oil the machinery * * * while the saw was in motion, and the injury to the plaintiff came from the oiling of said machinery, then he cannot recover.”
The court should certainly have instructed the jury that if it was negligence on the part of the plaintiff to oil the machinery when in motion, and that such negli
For the error in refusing to admit the testimony, judgment must be reversed, and a new trial ordered, with costs.