Opinion
Docket No. 65, Calendar No. 33,648.
Submitted June 8, 1928.
Decided December 4, 1928.
Error to Benzie; Lamb (Fred S.), J. Submitted June 8, 1928. (Docket No. 65, Calendar No. 33,648.) Decided December 4, 1928.
Case by David Walker against Myron Ginsburg and another for personal injuries. Judgment for plaintiff. Defendants bring error. Reversed, and no new trial ordered.
Patchin Duncan, for appellants.
M.G. Paul, for appellee.
Defendants, wrecking a mill and removing machinery therefrom, employed plaintiff to assist them. He had worked in the mill nearly 18 years in various capacities, chiefly as an operator of machines, and after the mill had been shut down he had been the watchman. He was fully familiar with the place. In the forenoon of May 13, 1927, he was engaged for defendants in taking apart a conveyor box, the housing of a conveyor belt, constructed to carry wood waste from a machine on the floor of the plant to the fire-hole. The conveyor started beneath the machine, and, rising at an angle of nearly 45 degrees, passed into the fire-hole at a height of nearly 10 feet above the floor. The box was made of boards nearly 14 or 16 inches wide. Plaintiff in tearing down the box used a wrecking bar nearly 30 inches in length. While he, working alone in the plant, was standing on or in the box attempting to pry off a board, the bar slipped, he lost balance, fell to the floor, a distance of several feet, and was injured. He had verdict and judgment. Defendants bring error.
Many questions are presented. We discuss one, that defendants were guilty of no actionable negligence. That plaintiff might fall, and that the bar might slip were dangers so obvious that defendants had no duty to warn of them. The rule of safe place to work does not apply to this work of demolition. See 39 C.J. p. 351; McParland v. Stewart, ante, 565, 19 L.R.A. (N.S.) 340, note.
One of the claws on the claw end of the wrecking bar had been broken off. It is urged that defendants were negligent in furnishing a defective tool. Plaintiff, having the bar on the witness stand, said "I would pry with the bar like that (illustrates)" and "Yes, sir (counsel illustrates with the bar)." All of which is meaningless on the record. The uncontradicted record is that plaintiff was using and prying with the point end of the bar when it slipped and he fell. That being so, the broken claw has no significance in the case. Therefore that defendants are not liable under the rule relating to injury from defect in simple tools (the wrecking bar being a simple tool and plaintiff possessing ordinary intelligence and knowledge) is a question unnecessary to decision. 13 L.R.A. (N.S.) 669; L.R.A. 1918 D, 1141.
The many windows of the old plant were dust covered, and it is contended that defendants were negligent in not providing better light. The building was then without lighting facilities. The defendants were not bound to install lights during the work of dismantling. Falkeneau Construction Co. v. Ginley, 131 Ill. App. 399. It was daytime and the month of May. Doors might have been opened by plaintiff to give needed light. It was his duty to avail himself of the means of lighting at hand. 39 C.J. p. 350. We find no negligence on the part of defendants in this regard.
Under the rule here applicable we have viewed the facts in the light most favorable to plaintiff. Further discussion is not required. We find no actionable negligence. Judgment reversed without new trial. Costs to defendants.
FEAD, C.J., and NORTH, FELLOWS, WIEST, McDONALD, POTTER, and SHARPE, JJ., concurred.