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the opinion that the injury was caused by a pure accident, and that no recovery could be had therefor; but he observed that, if there were any negligence, it should be chargeable to the Vinton Company.
There seems to be no contest as to the facts, and it is insisted by plaintiff that the testimony brought the case squarely within the rule in Haxer v. Griessel, 162 Mich. 310 (127 N. W. 309), a case in which the facts were very similar. In that case it was said by Mr. Justice BROOKE that:
"A careful reading of the record impels us to the conclusion that the question of defendants' negligence should have been submitted to the jury. While the placing of the ladder in the position in which it stood at the time of the accident, and its use by Bishop while in that position, may be said to indicate reasonable care upon his part, or at least to afford no evidence of negligence, we are still of the opinion that his leaving it, even for the time necessary for him to change his paints, leaning against the freshly painted, slippery edge of the roof of the bay window, under the weather conditions which prevailed and to which his attention had been at that moment called by his master, was such an act as to warrant the court in taking the verdict of the jury as to its character.”
We are of the opinion that this case is controlling of the one under consideration, and that the trial court erred in directing a verdict on this ground.
Were Candler & Co. independent contractors? The court held that, if there were any actionable negligence, the Vinton Company must be charged with it, thereby holding, in effect, that Candler & Co. were not independent contractors. The testimony in the record bearing upon the question of what the contract was is somewhat meager, but from what does appear we are led to the conclusion that defendant Candler & Co. were independent contractors. It is shown that the Vinton Company advertised for bids for the construction of the galvanized iron cornice over the show windows according to plans and specifications; that Candler & Co. submitted a bid and it was accepted. It appears that Candler & Co.'s contract included the furnishing of the materials and the labor, and was to be done for a fixed price. There is no showing that the Vinton Company reserved the right to control in any manner the execution of the work, or that any attempt was made to do so. It reserved the right of supervision, but, we think, only as to results. The reservation of the right by the Vinton Company to see that the work was executed in accordance with the plans and specifications would not make it liable for the negligent manner in which it was done. Lenderink v. Village of Rockford, 135 Mich. 531 (98 N. W. 4).
There is some testimony that, at the precise time the injury occurred, Candler & Co.'s employee was engaged in repairing some roofing for which an extra charge was made by them. The authority to do the extra work was communicated by Siegel through the Vinton Company to Candler & Co., with a promise to pay extra for it. The inference is that the extra work was not included in the contract of the Vinton Company, but that the company was used merely as a medium through which to communicate the fact to Candler & Co. that Mr. Siegel desired the extra work done, and that he would pay the added expense. This showing might bear upon the liability of Siegel, but would not charge the Vinton Company for the negligence of the employee of Candler & Co. while making repairs. We are of the opinion that the trial court was likewise in error as to this question.
The judgment of the trial court is reversed, and a new trial granted.
MCALVAY, C. J., and BROOKE, KUHN, STONE, OSTRANDER, MOORE, and STEERE, JJ., concurred.
GAINES v. DETROIT, GRAND HAVEN & MILWAUKEE
MASTER AND SERVANT — INTERSTATE COMMERCE-STATUTES—RAIL-
abolishing the fellow-servant rule and modifying the
Error to Shiawassee; Miner, J. Submitted April 9, 1914. (Docket No. 13.) Decided July 24, 1914.
Case by Clarence D. Gaines against the Detroit, Grand Haven & Milwaukee Railway Company, and others, for personal injuries. Judgment for defendants. Plaintiff brings error. Reversed.
Terry & Parsons (George E. Pardee, of counsel), for appellant.
Harrison Geer, for appellees.
BIRD, J. While the plaintiff was employed as a car repairer for the defendant in its yards at Durand, he was severely injured. The circumstances leading to his injury were such that he claims the company was negligent in failing to warn him of the dangers attendant upon his work. The declaration filed included not only a common-law count but a statutory one based upon Act No. 104, Pub. Acts 1909 (4 How. Stat. [2d Ed.] $ 4110 et seq.). At the conclusion of the proofs the plaintiff requested the trial court to submit the case to the jury upon the statutory count. The defendant objected to this and took the position that, if any recovery could be had, it must be under the Federal act. The trial court, not being impressed with either contention, submitted the case upon the common-law count, and the jury returned a verdict in favor of the defendant. The plaintiff assigns error in this court and relies chiefly upon the action of the trial court in submitting the case upon the commonlaw count.
The record discloses that, when the plaintiff received his injuries, he was assisting in repairing a defective drawbar on a car belonging to the Baltimore & Ohio Railroad Company. The car had brought a load of coal into this State, and the defendant had conveyed it from Detroit to Durand. On its return trip one of its drawbars was found to be defective, and was placed by the defendant upon its repair track.
Under recent rulings of the Federal Supreme Court, we think it is clear that the defendant, while dealing with this car, was engaged in interstate commerce, notwithstanding the fact that its own line of railway lies wholly within this State. Johnson v. Southern Pacific Co., 196 U. S. 1 (25 Sup. Ct. 158); McNeill v. Railway Co., 202 U. S. 543 (26 Sup. Ct. 722); St. Louis, etc., R. Co. v. Seale, 229 U. S. 156 (33 Sup. Ct. 651); Baltimore & Ohio R. Co. v. Darr, 204 Fed. 751, 124 C. C. A. 565 (47 L. R. A. (N. S.] 4).
If the work at which plaintiff was engaged at the time of his injury was a part of interstate commerce, then his remedy is under the Federal act. Pedersen v. Railroad Co., 229 U. S. 146 (33 Sup. Ct. 648). Measured by this test, we have no hesitancy in saying that the repair work in which the plaintiff was engaged when he received his injuries was a part of interstate commerce. The car belonged to a railway doing an interstate business, and it had come into this State on an errand of interstate commerce.
It was one of the instrumentalities of interstate commerce and was being repaired in obedience to a mandate of the Federal statute. Having arrived at this conclusion, it must follow that, if the plaintiff is entitled to recover on account of his injury, it must be done by counting on the Federal statutes. Fernette v. Railroad Co., 175 Mich. 653 (144 N. W. 834).
The judgment must be reversed, and the case must go back to the trial court for such further proceedings as are consistent with the law and the rules of court, but defendant will recover costs of this court. Fernette v. Railroad Co., supra.
MCALVAY, C. J., and BROOKE, KUHN, STONE, OSTRANDER, and STEERE, JJ., concurred with BIRD, J.
MOORE, J. I concur in the result, except I think appellant should recover costs of this court.
BAYNE V. RIVERSIDE STORAGE & CARTAGE CO. MASTER AND SERVANTWORKMEN'S COMPENSATION ACT—EVIDENCE -CAUSE OF DEATH. Opinion evidence of two physicians that pneumonia did
not result from injuries which decedent received in the course of his employment, and which were followed by his decease, contradicted by plaintiff's experts who gave a contrary opinion, held, not to justify the court in reversing the finding of the industrial accident board awarding compensation.