text:
    FELSKE v. DETROIT UNITED RAILWAY.
    1. Street Railways — Negligence—Derailment — Res Ipsa Loquitur.
    Evidence that the rear trucks of one of defendant’s interurban cars became derailed, and traveled on the edges of the rails for upwards of a block, when the rear of the car swung out into the street and injured plaintiff who was riding in a buggy in the street, does not show negligence of the defendant.

      2. Evidence — Precautions After Accident.
    It was incompetent to show that after the accident defendant stationed a watchman at the point of derailment to direct the movement of cars.
    3. Damages — Habits of Sobriety and Industry.
    As affecting the question of damages, testimony was admissible to show plaintiff’s habits of industry and sobriety.

      Error to Wayne; Hosmer, J.
    Submitted February 27, 1911.
    (Docket No. 121.)
    Decided March 31, 1911.
    Rehearing denied September 29, 1911.
    Case by Albert Felske against the Detroit United Railway, for personal injuries. Judgment for plaintiff. Defendant brings error.
    Reversed.

      Brennan, Donnelly & Van De Mark, for appellant.

      Sloman & Sloman ( William S. Sayres, Jr., of counsel ), for appellee.
   Blair, J.

Plaintiff brought this action to recover damages for injuries caused by the derailment of the rear trucks of one of defendant’s suburban cars and the consequent swinging of the car across the street, thereby colliding with the vehicle in which he was riding.

At the place where the accident happened the defendant maintains a double-track street railway. On the day that the accident occurred the plaintiff and two or three other persons were riding in a light wagon. They were proceeding in a westerly direction on Gratiot avenue, on the north side of the street, and driving about midway between the car tracks and the curb. The collision occurred between the intersection of Holcomb and Rohns avenues with Gratiot avenue. Commencing about a block and a half west of this point and extending some distance westward, the south track of the defendant company had been torn up for the purpose of replacement and repair. A temporary track had been constructed upon the south side of the street, in the traveled portion thereof near the curb, for use while the repairs and reconstruction mentioned above were being made. Cars proceeding in an easterly direction — that is, out iGratiot avenue — would therefore travel for some distance upon this temporary track, but when they came to a point about a block and a half away from where the accident happened they would, by means of a crossover, pass over to that part of the permanent track which had not yet been taken up, and along this track to where the collision took place. On the occasion of the accident, a large suburban double-truck car, which was bound for Mt. Clemens — that is to say, in an easterly direction — while passing from the temporary track onto the permanent track, failed for some reason to properly take the rails, although this fact was not known to anybody at the time. The front truck took the rails in the proper manner, but the rear truck did not. After the car passed from the temporary track to the permanent track, the power was applied to the car, and it speeded up to about the usual traveling speed and proceeded at this rate for. about a block or a block and a half, when the rear truck suddenly, slewed off to the left, leaving the track.

The court submitted the case to the jury upon the following theory: -

“Now I say to you from the fact that the car did leave the track at the junction between this temporary track and the main track, and from the fact that it was propelled along at I know not what rate — its initial rate when it left the temporary track, but at a considerable rate, though not an unlawful rate, had it been on the track at the time of the collision — I say from that fact you may infer negligence on the part of the company. * * * From the circumstance that the evidence is before us which authorizes you to find that the car left the track at the point I have described, and proceeded at a considerable rate until the time of the accident, and that the accident took place at least a block — a good city block in distance therefrom — I say from these facts, gentlemen of the jury, I think you may infer negligence on the part of the defendant, and not from any other testimony which has been offered in this case. If there is a liability, it comes, gentlemen of the jury, from the fact that the company ought to have discovered the condition of the car after it had gone over, and have stopped that car before the accident occurred.”

Defendant brings the record to this court for review, grouping his assignments of error in the brief as follows:

“(l) There is no testimony in the case to support any finding of negligence on the part of the defendant, and the charge of the court in regard thereto was erroneous.
“(2) It was error for the court to permit testimony that after the accident the defendant had a watchman stationed at the crossover.
“(3) It was error for the court to permit testimony as to personal habits and character of the plaintiff.
“(4) There was error justifying the reversal of the judgment in the argument of plaintiff’s counsel.”

The temporary track, as testified by plaintiff’s witnesses—

“Was on top of the pavement, about six inches or eight inches above the regular track. * * * I did not inspect what they used as a crossover from the temporary to the permanent track, the same as they usually do. I have seen it so often at night on Gratiot avenue; the crossing there is a part of the rails laid right on top of the others. The track was substantial so far as that is concerned; it was not laid right on the pavement. There were wood ties in between, and then filled in with dirt and gravel. * * * They had a crossover where they used to come from one track to the other. They had one track there and dropped from one to the other. It was a temporary track, I should think. I do not remember how that track was laid. * * *
“<Q. Do you know anything about the connection between the temporary track and the permanent track ?
“A. No; there was only a rail on top of the other where they dropped off, and that is the way them trucks dropped off; the way I could see by the mark on the pavement.”

The crossover rail on top of the permanent rail tapered, as we understand, to the level of the permanent rail.

Plaintiff’s witness Watson testified:

“ I examined the pavement and could see that it came off the track right where they were repairing it. I saw on the pavement the mark where it was running; the flange of the wheels cutting it right alongside of the track. This groove in the pavement extended from where they were repairing the track up to just this side of my house, where it jumped the track altogether; that is, the hind trucks. This is a distance of a block, of course; that is a very large block from Holcomb avenue to Belvidere — a very large block on that side of the street. * * * The groove in the pavement which I saw was on the inside of the south rail, between the rails. * * * This small groove in the pavement was between the rails of the south track, and was on the north side of the south rail of the south track. * * * The mark on the pavement that I saw was a small groove in the cedar blocks, just nicking the edge of the blocks. I did not see any marks near the other rails, not until it left the track entirely. This mark that I saw near the right-hand rail of the south track was quite a heavy mark. It had sort of nicked the edges of the blocks near the rail. It was between the rail and the blocks. It kept right alongside of the rail. * * * When the car passed my house, it was going at a pretty fair speed, 10 or 15 miles an hour. Of course, I could not tell exactly. I could not tell whether it was off the track or not by looking at the car, and did not know that before the accident. * * * You see, that is how it ran so smooth. The hind trucks were off the track. The front trucks never were off, not even at the accident. * * * I was about half way between this crossover and the place where the accident happened. When this car passed me, there was nothing at all about it which attracted my attention. * * *
“Q. There was nothing unusual about the way the car went by, was there ?
“A. Nothing at all.
“Q. So that you did not have any occasion to watch it, did you ?
“A. No; I did not have any occasion to watch the car. The first I knew of there being an accident, I saw the car swing around. I happened to be looking in that direction.”

There was no testimony that the temporary track, the crossover, or the junction with the permanent track, were improperly constructed, or that the car was operated over them at an excessive rate of speed, or in any wise negligently; neither was there any testimony that there was any defect in the car, or any lack of skill or competency on the part of the operators; and, unless upon the ground suggested by the circuit judge, there was no evidence upon which to support an inference of negligence, except the derailment of the car, which does not, in the absence of other facts and circumstances tending to show negligence, make a prima facie case. Peppett v. Railroad Co., 119 Mich. 640 (78 N. W. 900); Sewell v. Railway, 158 Mich. 407 (123 N. W. 2); Niedzinski v. Electric Co., 160 Mich. 517 (125 N. W. 409).

We are also of the opinion that there was no evidence to support the theory upon which the case was submitted. The rails of the permanent track were of the grooved type. The fact that only one flange mark was found, just nicking the edges of the cedar blocks immediately north of the south rail until the rear trucks swung entirely clear of the track, indicates, in the absence of any evidence, that the rails had spread; that while the flanges of the south wheels of the truck had come out of the groove the treads'of the wheels were riding on the north side of the groove, and the flanges of the north wheels were riding upon the top of the north rails. This probably explains, in the language of Watson, “how it ran so smooth.” The testimony of plaintiff’s witness Watson, which is the only testimony on the subject, does not support, but tends to negative, an inference that the running of the car was so unusual that it ought to have attracted the attention of the car men. A verdict based upon this theory would not be supported by any legitimate inference from the facts and circumstances disclosed by the testimony, but would be the result of mere conjecture.

The testimony that a watchman was stationed at the crossover after the accident should not have been received. Moon v. Railroad Co., 143 Mich. 125 (106 N. W. 715, 108 N. W. 78).

Testimony as to the plaintiff’s habits of industry, sobriety, etc., was admissible as affecting the amount of the damages suffered. Shall v. Railway Co., 152 Mich. 463 (116 N. W. 432).

The other questions discussed in the briefs will probably not arise upon another trial, if one should be had, and we therefore do not consider them.

. The judgment is reversed, and a new trial granted.

Ostrander, C. J., and McAlvay, Brooke, and Stone, JJ., concurred.


source: Caselaw Access Project

author:
Stone, J.
      Blair, J.

license: Public Domain

text:
    LEPARD v. MICHIGAN CENTRAL RAILROAD CO.
    1. Master and Servant — Negligence—Pleading—Declaration —Railroads.
    A declaration charging a railroad corporation with neglecting (1) to place a steam whistle on its locomotive, (2) to maintain a whistle that could he sharply sounded, (3) to keep the whistle in repair, and (4) to blow the whistle at a certain crossing, as required by 2 Comp. Laws, § 6292, sufficiently sets forth a duty, independent of statute, to place and maintain a steam whistle on the locomotive, in reasonable repair.
    2. Same — Pleading—Failure to Prove Part of Declaration.
    If the plaintiff alleges in his declaration any act of negligence resulting in injury to him, he is entitled to recover although he charges other acts as negligence which he fails to prove.
    3. Same — Railroads—Whistle—Evidence.
    Evidence tending to show that the whistle gave a peculiar sound, that it sounded as if the steam was low, that the tone was muffled, is insufficient to present a question of fact as to its defective condition, when there was evidence that the peculiar tone might have been caused by the water foaming in the boiler, or by other equally probable conditions,
    4. Evidence — Cross-Examination—Impeachment.
    On cross-examination for the purpose of impeachment only, it was competent to ask defendant’s engineer, who had taken the stand as a witness for plaintiff and was recalled by defendant as its witness, if he had not admitted that the whistle would not work, and was no good.
    5. Master and Servant — Signals—Statutes—Whistle.
    Employés of a railroad company engaged in work on the right of way are not entitled to maintain an action for negligence of the defendant in failing to sound its whistle at a crossing near their place of work, under requirement of 2 Comp. Laws, § 6292. Per Stone, MoAlvay, and Brooke, JJ.
    6. Same.
    The violation of a statutory duty gives rise to a cause of action in favor of such persons only as the legislature intended to protect by the statute. Per Stone, MoAlvay, and Brooke, JJ.
    7. Same.
    The negligence of an engineer, in failing to blow the whistle of the locomotive which he was operating, was the negligence of a fellow-servant of a section hand who was killed by the train. Per Stone, MoAlvay, and Brooke, JJ.
    Error to Ogemaw; Sharpe, J.
    Submitted March 3, 1911.
    (Docket No. 188.)
    Decided March 31, 1911.
    Rehearing denied September 29, 1911.
    Case by Hannah Lepard, administratrix of the estate of Richard Lepard, deceased, against the Michigan Central Railroad Company, for the negligent killing of decedent. Judgment for plaintiff. Defendant brings error.
    Reversed.

      Cooley & Hewitt (Humphrey, Grant & Baker, of counsel), for appellant.

      De Vere Hall, for appellee.

       On the question for whose benefit signals by approaching trains are required by statute at railway crossings, see note in 17 L. R. A. 254.

   Stone, J.

This is an action on the case for negligence brought by the plaintiff as administratrix of the estate of her deceased husband, Richard Lepard, for damages claimed to have been sustained by the estate, and to have accrued against the defendant for causing the death of said Richard Lepard.

The declaration contained but one count. After alleging that defendant was a railroad corporation operating a line of railroad in this State, the. appointment of plaintiff as administratrix; that the line of defendant’s railroad crossed a highway at Ogemaw Springs, nearly at right angles, at grade called Ogemaw Springs Crossing; that the injury was caused by a freight train, No. 220, propelled by locomotive engine No. 8,357; that the defendant company, in operating such train, was subject to the requirements and limitations of section 6292, 2 Comp. Laws, regarding the blowing of a steam whistle at highway crossings; and that plaintiff’s intestate was at the time employed as a section hand on a five-mile section of said railroad, beginning about a mile south of said Ogemaw Springs Crossing, and extending northerly a distance of five miles from the place of beginning — the declaration averred that under the regulations and limitations of said section of the statute it was the duty of defendant:

(а) To place a steam whistle on the locomotive engine.
(б) To place a steam whistle that could be sharply sounded on the engine.
(c) To place, keep, and maintain a steam whistle that could be sharply sounded on said locomotive.
(d) Not to operate such train with a locomotive having a defective, imperfectly constructed steam whistle that could not be sharply sounded at least 40 rods before reaching this crossing.
(e) To keep and maintain the whistle in reasonable repair so that it could be sharply sounded.
(/) To twice sharply sound the steam whistle on the engine at least 40 rods before reaching Ogemaw Springs Crossing.

The declaration alleged a violation of each of these duties. It also alleged that defendant owed other duties, as follows:

(a) To equip the locomotive with a reasonably efficient steam whistle.
(&) To keep the steam whistle in reasonable repair.
(c) Not to operate the train with a locomotive on which the whistle was not maintained in reasonable repair.
(d) To twice sharply sound the steam whistle 40 rods before reaching Ogemaw Springs Crossing.

It alleged a breach of each of these duties, and that the injury happened under the following circumstances: At about 5:30 o’clock a. m. on the 13th day of June, 1909, being Sunday, the sectionmen started north over their section with a hand car. When near the crossing, without signal, notice, or warning, this train with the defective steam whistle suddenly approached the crossing and ran into and collided with the hand car near the crossing, injuring and killing Lepard. The above statement is sufficient to show the issue raised by the declaration.

The plea was the general issue.

In the opening statement of plaintiff’s counsel, he used the following language, after referring to said section 6292:

“It is the first contention of the plaintiff that this whistle was not sounded as required by law; * * * that if it had been sounded when those men were at the crossing they would have heard it and known of the approaching train; and that, failing to do that, this right of action accrues to the person standing in the place of the plaintiff in this case. The second contention of the plaintiff in this case is that they did not have a whistle on their engine that could sound; that this whistle was a broken whistle, a defective whistle, a whistle that only corresponded to the escaping steam, that indicates a surplus of steam; that it was not an appliance that could be sounded sharply, as the law calls for; and that, whatever may be the law about the first proposition about the failure to sound it, that the rule as to the second is that the defendant was at fault in sending out an engine so improperly equipped that the whistle could not be sounded, as required by law. And that those two claims of the plaintiff are the ones on which we shall say that the defendant was negligent that morning.”

It was conceded on the part of the defendant that the train in question in the case was No. 220, and that the number of the engine in question was 8,357, and that it was a regular time card or schedule train.

At the close of the plaintiff’s evidence, which tended to show the circumstances under which the accident or injury occurred, the following colloquy took place between counsel:

Mr. Humphrey: I want to ask counsel for the plaintiff if they claim any other allegation of negligence against this defendant in the declaration, excepting the blowing of the whistle, or a defective whistle.
Mr. Hall: Yes, we make a claim at this time to the —well, you mean the right to invoke this statute in our behalf as to his failure to blow, or the question of defective whistle ?
Mr. Humphrey: Yes. •
“Mr. Hall:, No; that is all.
Mr. Humphrey: Your whole negligence is based on the question of the whistling and the whistle ?
“Mr. Hall: Well, yes, as I understand your inquiry.”

Counsel for defendant then moved the court to direct a verdict in its behalf, among other things, on the ground that the plaintiff could not invoke the protection of the statutory signals at crossings as against the company in favor of Mr. Lepard, who was the company’s employé, because the statute regarding whistling at crossings is not for the benefit of employés or sectionmen such as plaintiff’s decedent. The court did not rule immediately upon this question, and the defendant proceeded to put in its evidence. Later, and before the close of the evidence on the part of the defendant, the court made a ruling, holding that the statute did apply to employés on the road, and overruling defendant’s motion to direct a verdict, to which counsel for defendant excepted.

At the close of the evidence defendant’s counsel submitted a number of requests to charge. Among others were the following:

“ (14) I charge you that, under the law and the undisputed evidence in this case, the plaintiff is not entitled to recover, and your verdict must be for the defendant.
“ (15) I charge you that there is no evidence in this case that would authorize the jury to find that the whistle upon this engine was not such a whistle as required by the statute of this State, or the rule of the defendant company.
“ (16) I charge you, as a matter of law, that, under the undisputed evidence in this case, this engine, No. 8,357, was at the time of this accident equipped with a whistle of the kind and character required by statute and the rules of the defendant company.”

• The court proceeded to charge the jury, and in its general charge it did not adhere to the ruling made upon the trial of the case, as to the applicability of section 6292, 2 Comp. Laws, but charged the jury that the statute was not applicable, and that the defendant was guilty of no negligence to the plaintiff’s decedent for the failure to ring the bell or blow the whistle at highway crossings, as provided by said section; that the statute was obviously passed by the legislature for the benefit of those using, or about to use, the highway in the vicinity of the railroad crossing; that this statute does not impose any duty upon the defendant with respect to the sectionmen working upon the road; and that the plaintiff could not found a right of recovery against the defendant for failure to give the signals provided in said section, as the undisputed evidence showed that the plaintiff’s decedent was a section hand upon the railroad of the defendant company at the time of the accident to him.

The court also charged the jury that the plaintiff could not found any right of action based upon the negligence of the section foreman, for the reason that such foreman and plaintiff’s decedent were fellow-servants; also, that the engineer of the train causing the accident was a fellow-servant of the men composing the section crew, including the deceased; that plaintiff could not found any right of action upon any neglect or failure of duty of said engineer in the ordinary operation of his train on the morning in question; that the plaintiff could not recover on account of the neglect of the engineer to blow the whistle at any time, unless the jury should find that his neglect to blow the whistle was occasioned by the fact of the whistle not being in a condition to be sounded. The case was submitted to the jury upon the following proposition :

“The specific charge or claim that the plaintiff now makes and now asks you to find against the defendant on is the failure to equip the locomotive with a whistle and to sound the whistle at this curve, and in the condition in which these men were, as I have explained to you fully and read from the requests of counsel.
“ I charge you that, under the undisputed evidence in this case, plaintiff’s decedent, Richard Lepard, was a section foreman on defendant’s road about one year, but a short time before the happening of this accident; and that, under the undisputed evidence in this case, he had full notice and knowledge of the rules and instructions governing employes of the track department of the defendant railroad company; and that, under said rules and instructions, the section hands upon said railroad would have no right to rely upon the statutory signals at highway crossings being given by the trainmen while said section hands were working at or near said highway crossings; and that, under the rules and instructions governing such sectionmen, they were notified and required to look out for and protect themselves against accident from trains running upon the road. * * *
“ I charge you that plaintiff cannot recover in this action on account of the violation of the defendant of any of its rules contributing to her decedent’s injury, as plaintiff’s decedent had assumed all risks for accidents so caused. * * *
“ If you find that the engine was equipped with a suitable whistle as defined by me, the plaintiff cannot recover.
“If you find that the death of said husband was occasioned by the negligence of said engineer in omitting to sound the whistle, and not in consequence solely of the defective and inefficient condition of the whistle, plaintiff cannot recover.”

The plaintiff recovered a verdict and judgment, and the defendant has appealed, and has assigned many errors. We shall not have occasion to refer to them all. The assignments of error Nos. 30 to 35, inclusive, relate to the refusal of the court to charge the jury as requested by defendant’s counsel.

Among other things, it is the contention of defendant’s counsel that the declaration counts solely upon the statute, and this question is raised by an assignment of error. As we have already indicated, the declaration contained but one count, and it was not demurred to. It sets forth clearly a statutory duty; and, in our opinion, it also sets forth a duty (independent of the statutory claim) to place, equip, and maintain a steam whistle upon the locomotive in reasonable repair.

This court has held that it is not necessary for a plaintiff to prove all of the acts of negligence charged; that, if any unlawful neglect of defendant is charged which resulted in the injury to the plaintiff complained of, he is entitled to recover, although the declaration may have charged other acts of defendant as negligence which were not proven. Marquet v. La Duke, 96 Mich. 596 (55 N. W. 1006); Warren v. Porter, 144 Mich. 699-704 (108 N. W. 435), (citing Smith v. Railroad Co., 100 Mich. 153 [58 N. W. 651, 43 Am. St. Rep. 440]); Malkowski v. Olfs, 161 Mich. 303 (126 N. W. 199).

We understand it to be claimed that this branch of the declaration counts upon the common-law duty to furnish the locomotive with a suitable whistle as a reasonable instrumentality in the efficient operation of the locomotive, and a breach thereof. We are of opinion that a cause of action is here stated, independent of the statute.

As we understand it, this case was submitted to the jury upon the sole proposition that this whistle was a broken or defective whistle, and that it was not an appliance that could be efficiently used, and that the defendant was only liable in case the jury found that it sent out an engine that was improperly equipped with a whistle, one that could not be used to perform the function that it was intended for.

We have read this record with great care to discover whether there was any evidence to sustain this claim. In the light of this record, we feel compelled to say that, instead of showing a broken or defective whistle, the uncontradicted testimony of all the witnesses in the case is that there was nothing the matter with the whistle. The plaintiff introduced as one of her witnesses the engineer in charge of the engine, who so positively testifies. It is true that there was some evidence tending to show that the whistle on this morning gave out a peculiar sound, described by one witness asa “ squawking” sound. One of plaintiff’s witnesses stated it sounded as though the pressure of the steam was low and condensed. Another testified that his idea was that there was something wrong about the steam; that it was either damp, moist steam, or that the operator didn’t put on a full blast of steam to give a loud sound; that the tone was a “muffled tone.” Another, that the condition of the atmosphere, by reason of fog, was the cause. Different theories were given by some of the plaintiff’s witnesses as to the unusual sound of the whistle; one being that there may have been too much water in the boiler. The evidence being undisputed that the whistle on this engine was of the standard variety used on all the freight engines of the defendant, and that it was purchased from reputable whistle manufacturers, and the testimony as to the peculiar sound being just as consistent with the perfect condition of the whistle as with its imperfect condition, and it appearing that the person who operated the whistle was a fellow-servant of plaintiff’s decedent, and that no recovery could be had for his mismanagement of the whistle, or of the improper filling of the boiler, we do not think that the jury should have been left to speculate as to the cause of the peculiar sound testified to by some of the witnesses.

We are constrained to say that, in our opinion, there was no negligence of the defendant shown, nothing that would indicate that the whistle was a defective one; and that the case should have been taken from the jury because of the failure of the plaintiff to make a case under the evidence.

The evidence was undisputed that the engine had been in the shop for repairs in other parts, and it also appeared that it had been reported that the whistle valve did not open enough; that it was repaired, and left the shop in perfect condition as to the whistle, on June 8th, and again on June 12th.

The engineer, who had been called as a witness for the plaintiff, was recalled by the defendant for further direct examination. Upon his cross-examination he was asked whether he had not stated at the depot at West Branch, on the morning of the accident, and a short time after the accident, in the presence of divers persons, as follows:

“I blew the whistle, and the damn thing wouldn’t work, or didn’t.”

He denied that he had made such statement. He was then asked if, on that occasion, he did not state:

“ I blew the whistle, and the damn thing was no good anyway.”

He denied this. Testimony was afterwards offered in rebuttal by plaintiff tending to show that this witness had made such statement. This is complained of by defendant’s counsel, and error is assigned upon it.

We are of opinion that, the defendant having made the engineer its own witness, it was competent upon cross-examination to ask the questions indicated, and that it was so far material as affecting his testimony that it was competent to prove the statements by other witnesses; it being in the nature of collateral impeachment. It could not be used for any other purpose, and was no evidence of the negligence of the defendant.

We are so strongly impressed with the claim that there was no evidence of the negligence of the defendant that we think it was error to submit the case to the jury, and that for the error indicated the judgment below should be reversed, and a new trial granted. We find no other error that is likely to arise upon a new trial.

It may properly be said that, under the charge of the court, the question as to the statutory signals is not before us. But, as this case must go back for a new trial, it is only fair to the parties, and to the trial court, the question having been briefed by counsel, that we express our opinion whether sectionmen or railroad employés can base a right of action on the failure of the railroad company to sound the statutory whistle at highway crossings, as is provided by section 6292, 2 Comp. Laws. That statute provides as follows:

“A bell of at least thirty pounds weight, and a steam whistle, shall be placed on each locomotive engine, and said whistle shall be twice sharply sounded at least forty rods before the crossing is reached, and after the sounding of the whistle the bell shall be rung continuously, until the crossing is passed, under a penalty of $100.00 for every neglect; * * * and the company shall also be liable for all damages which shall be sustained by any person, by reason of such neglect.”

This statute in its present form, so far as quoted, has been the law of this State for many years. It received a construction by this court in the case of Sanborn v. Railroad Co., 91 Mich. 538 (52 N. W. 153, 16 L. R. A. 119). This opinion was by a divided court. The vital question is whether this plaintiff is in a position to invoke this statute. It is a general rule that a civil action is maintainable where the person complaining is of a class entitled to take advantage of the law, is a sufferer from the disobedience, is not himself a partaker in the wrong of which he complains, or is not otherwise precluded by the principles of the common law from his proper standing in court. Syneszewski v. Schmidt, 153 Mich. 438, at page 441 (116 N. W. 1107).

It is a well-established principle that the violation of a statutory duty is the foundation of an action in favor of such persons only as belong to the class intended by the legislature to be protected by such statute.

In 33 Cyc., at page 784, the following language is used with reference to statutes of this character:

“ In the absence of a provision in the statute specifically designating persons to whom the duty of giving crossing signals or warnings is due, it is generally held that such warnings are due only to persons on the highway using, about to use, or who have just used, the crossing, and not to trespassers or licensees on the railroad tracks or right of way at places other than a crossing, nor to persons riding or driving along parallel to the railroad. In some jurisdictions, however, it is held that while the statutory signals are intended primarily as warnings to persons using, or intending to use, the crossings, and not for those walking along the track or right of way, yet, with regard to the latter as well as to the former, a failure to comply with the statute is evidence of negligence to be considered by the jury, together with other facts tending to show want of reasonable care on the part of the railroad company ; but, if the failure to give such signals is the only negligence imputable to the railroad company, it is not liable in such cases. Under some statutes such signals or warnings are held to be due to all persons lawfully on or near the crossing who may be exposed to danger by the approaching engine or train whether on the highway or on the right of way ”— citing many cases.

A leading case upon this subject, in this country, is that of Randall v. Railroad Co., 109 U. S. 485 (3 Sup. Ct. 323 ). The opinion in that case was written by Justice Gray, and was concurred in by the entire court. In that case the statute of West Virginia was involved, which reads as follows:

“ 'A bell or steam whistle shall be placed on each locomotive engine which shall be rung or whistled by the engineer or fireman at the distance of at least sixty rods from the place where the railroad crosses any public street or highway, and be kept ringing or whistling until such street or highway is reached,’ under a penalty of not exceeding $100 for each neglect; the corporation owning the railroad shall be liable to any person injured for all damages sustained by reason of such neglect.”

The action was brought by a brakeman in the employ of the defendant company for personal injuries received, while working a switch, by being struck by one of its locomotive engines in the yard of the defendant, where there was a network of tracks near the junction of a branch road with the main road, and about 10 rods from a highway crossing. After referring to the doctrine of fellow-servants, and holding that the engineer and the plaintiff were fellow-servants engaged in a common object, and in the employ of a common master, and holding that an action could not be maintained for the negligence of the engineman in not giving due notice of the approach of his engine, the court uses the following language:

“The statute of West Virginia, on which the plaintiff relies, has no application to this case. There is no evidence that the engine which struck the plaintiff was about to cross the highway, and the main, if not the sole, object of this statute evidently was to protect travelers on the highway. O’Donnell v. Railroad Co., 6 R. I. 211; Harty v. Railroad Co., 42 N. Y. 468. It may perhaps include passengers on the trains, or strangers not trespassers, on the line of the road. But it does not supersede the general rule of law which exempts the corporation from liability to its own servants for the fault of their fellow-servants.”

Our attention has been called to the case of Everett v. Railway Co., reported in 100 Minn. 309 (111 N. W. 281, 9 L. R. A. [N. S.] 703). That case reviews not only the text-books, but the reported cases at great length, and holds that a statute, similar to ours, did not impose upon the railroad company the duty to give the required signal for the benefit of a person who was driving a team along a street parallel to the railway track near a crossing, but who did not intend to use the crossing; and where, under such circumstances, an approach of the train frightened the horses of the plaintiff and caused them to run away, negligence could not be predicated upon the failure to give the crossing signals in order that the driver might have warning and an opportunity to care for his team; and it was held that the plaintiff was not within the class which the legislature intended to protect by the statute which required the giving of the designated signal. In that case the court, in its opinion, quotes from 3 Elliott on Rail-, roads, §§ 1158, 1264, as follows:

“ ‘There is conflict of authority as to who may claim the benefit of the statutory signals, and it may depend somewhat upon the language of the particular statute. Where the statute does not specifically designate the class to whom the duty is owing, the courts have usually construed it to be due only to those who are about to use, are using, or have lately used, the crossing, and have held that no others could recover for injuries resulting from a failure to give the signals; but other courts have gone further, and hold that the duty is for the protection of all persons lawfully at or near the crossing from any danger to be apprehended from the sudden approach of a train without warning.’
Summarizing the cases, the author says:
“ ‘According to what we regard as the better rule, the company owes no duty to one who is not upon the highway near the crossing, to give the statutory signals; and it is not, therefore, liable to one whose horse, while upon a parallel highway which does not cross the traok, or in a field, is frightened and runs away because the statutory signals were not given for the crossing of a neighboring highway, and the owner thus failed to hear and prepare for the approaching train.’"’

Further quoting from 2 Thompson’s Commentaries on Negligence, § 1560, as follows:

“ ‘ It has been well reasoned that this omission is negligence as matter of law only when injury results therefrom to persons or animals endeavoring or intending to cross the track upon a street or highway crossing; and this, for the manifest reason that the object of the statute is to protect persons and animals in this situation and not in other situations; the prevailing view being that such signals are intended only for the protection of persons or vehicles on the crossing, or about to use the crossing, and not (for example) for the protection of those driving along a highway parallel to the railroad. ’ ’ ’

Again, quoting from 2 Shearman & Redfield on Negligence, § 470, the following language is used:

“ ‘Statutes requiring signals at crossings are enacted only for the benefit of persons intending to cross the track at a lawful crossing, or proceeding on a highway parallel with the track. Persons walking along the track, or trespassing thereon, or occupied in work upon adjoining land, are not entitled to the benefit of such statutes, whatever may be their common-law rights.’
“See, also, Patterson, Railroad Law, § 160; 2 Rorer, Railways, p. 1004.”

The main case reviews the authorities generally in this country, and holds that the cases sustain the views above expressed. In many of the States the statutes contain the language that the corporation shall be liable for damages which shall be sustained by any person by reason of such neglect. This is notably so in Randall v. Railroad Co., supra, and in St. Louis, etc., R. Co. v. Payne, 29 Kan. 166, where the opinion was written by Chief Justice Horton, and concurred in by Mr. Justice Brewer, then a member of that court. The same doctrine applies in Missouri Pacific R. Co. v. Pierce, 33 Kan. 61 (5 Pac. 378), where the court uses the following language:

“ The purpose of the legislature in requiring this warning to be given before reaching a highway is manifestly to afford protection to persons or property that may be upon, or passing over, such highway, and therefore the omission of the company to comply with this statutory requirement cannot be held to be negligence as to any injury done except at the crossing of the particular highway for which the whistle is required to be sounded.”

In East Tennessee, etc., R. Co. v. Feathers, 10 Lea (Tenn.), 103, the statute was held to have no application where a person was injured while traveling along a public road, parallel to the railroad. The court said:

“It seems clear that this language imposes a duty on the company in order to give warning to persons about to cross the road, or who may be in the act of crossing possibly, or had just passed over the road; but it does not apply to parties who are not about to cross the road, but are simply traveling alongside, as in this case, showing an evident purpose not to cross at all.”

A similar doctrine is applied in Louisville, etc., R. Co. v. Hall, 87 Ala. 708 (6 South. 277, 4 L. R. A. 710, 13 Am. St. Rep. 84). It appeared in that case that the plaintiff, a brakeman, was injured by being struck by an overhead bridge, and it was claimed that the defendant was liable because the whistle had not been blown at least one-fourth, of a mile before reaching the public crossing near by.

In Everett v. Railway Co., supra, the court said:

“In Louisville, etc., R. Co. v. Hall, 87 Ala. 708 (8 South. 277, 4 L. R. A. 710, 13 Am. St. Rep. 84), said Chief Justice Stone:
“ ‘ That statute has nothing to do with this case. Its design was to warn and protect persons who, at a public crossing, pass across and directly on the track, and who would be in danger of being struck and run over by an approaching train.’
“* * * To the same effect, see Flint v. Norwich, etc., R. Co., 110 Mass. 222. In Christy’s Adm’r v. Chesapeake & Ohio R. Co., 35 W. Va. 117 (12 S. E. 1111), the statute was held to be intended for the protection of those using the track at the crossing, and not for those using it elsewhere, and therefore no duty in this respect was owing to a section hand, an employé of the road, who was struck while standing on the track. The same rule had previously been applied in the case of a person using the railway tracks as a footpath.”

We cannot undertake to review all of the authorities cited in this case. We refer to the following cases:

Rohhack v. Pacific Railroad, 43 Mo. 187. In this case at the time of the injury the testimony showed that the plaintiff, with divers other servants of defendant, was at work on the main track and switches of defendant digging and shoveling dirt upon a part of the track in the yard of defendant, between Jefferson and Madison streets, in Jefferson City, and where other servants of the defendant were about the same time and place making up a train, and in doing so had immediately before the accident passed up and down, once or twice, or perhaps oftener, upon the tracks where the plaintiff and others were at work; and that finally, in backing the train, plaintiff, failing to get out of the way, was run over by it and received very serious injuries. The statute in Missouri made it incumbent upon the railroad companies to have .a bell placed on each locomotive to be rung at a distance of at least 80 rods from where the railroad should cross a traveled or public street, and to be kept ringing until it should have crossed such road or street. And the last clause of the section declares:

“And said corporation shall also be liable for all damages which shall be sustained by any person by reason of such neglect.”

The question raised was whether servants or employés of the company are to be included within the designation “any person,” according to the true sense and meaning of the act. The court held that the section of the statute above referred to is a transcript of the New York statute, that the omission by a railroad company to give the signals required on the approach of a locomotive within 80 rods of a highway crossing was a breach of duty to the passengers whose safety it imperiled, and to the wayfarer whom it exposes to mutilation and death, and reference is had to the case of Ernst v. Hudson River R. Co., 35 N. Y. 9 (90 Am. Dec. 761).

The court in the Missouri case uses the following language :

“After a somewhat careful examination I have been unable to find any case where it was sought to bring a servant within its provision. It is obvious that the enactment of the law was intended primarily for the protection of the traveling public and passengers. At a public crossing or street, frequented by travelers and persons engaged in business, the danger of collision and accident is constant and recurring, without a signal warning them of the approach of the train.
“Not only the danger to be apprehended to those who may happen to be upon the track, but the lives of the passengers are also jeopardized. The law, in a previous part of the section, subjects the company to a penalty for omission of duty in ringing the bell; but, lest that might be deemed exclusive, it also makes it responsible for damages at the suit of any person injured. There is a strong and peculiar reason why this precaution of giving a signal should be observed, as regards passengers and the traveling public; but it is not apparent when it comes to be applied to the servants of the road. There is nothing to show that from their business and occupation they are in greater hazard at a public crossing than at a private crossing, or anywhere else on the track. That the draftsman of the law used the word person’ in the sense that it should apply to the classes above referred to, and without any intention of changing the common-law construction, can scarcely be questioned.”

O’Donnell v. Providence & Worcester R. Co., 6 R. I. 211. The statute in that State provided as follows:

“Every railroad company incorporated under the authority of this State shall cause a bell of at least thirty-two pounds in weight to be placed on each locomotive engine passing upon their road; .and the said bell shall be rung at the distance of at least eighty rods from the place where said railroad crosses any turnpike, highway, or public way upon the same level with the railroad, and shall be kept ringing until the engine has crossed such turnpike or road.”

After providing a penalty for the violation of this statute, section 3 concludes in the following language:

“And the said railroad company shall also be liable for all damages sustained by any person by reason of such neglect or refusal on the part of the company.”

In this case it appeared at the trial that the plaintiff was walking upon the tracks of the defendant’s railroad, and was not at any place where the railroad crossed any turnpike, highway, or public way, upon the same level with the railroad. The court held that the statute above referred to was exclusively designed for the benefit of persons crossing the turnpike, highway, or public way, on a level with the railroad; and hence a person who was injured by the engine while walking along the tracks of the railroad, and not at any crossing, could not recover damages against the railroad company for such injury, upon the ground that the injury was caused by the company’s neglect to ring the bell upon the locomotive, as required by statute.

Harty v. Railroad Co., 42 N. Y. 468. The statute of that State provided that every railroad company should keep a bell or steam whistle upon every engine, and cause the bell to be rung, or the steam whistle to be blown, at the distance of at least 300 yards from the place where any such railroad crossed a turnpike, road, or highway upon the same level with said railroad, and such bell should be kept ringing, or such steam whistle should be kept blowing, until the engine had crossed such turnpike or highway, or had stopped, and a penalty was imposed for not complying with the provisions. The plaintiff’s intestate was struck by one of the defendant’s engines and fatally injured at a point 200 feet east from the railroad crossing. The court held that the intestate was not within the protection of this law, and that the railroad owed him no duty under the law to ring the bell, or sound the whistle. The court said:

“ If this company was bound to give these warnings to this man, then every railroad company is bound to do so to every person who may be upon the railroad ahead of a train, although he is not on the track and not in a place of danger. I think it would be unreasonable to carry the precautionary obligations of railroad companies to such an extent; and I therefore hold that this railroad company was guilty, as to the intestate, of no negligence in not ringing the bell or blowing the whistle, under the circumstances disclosed in this case.”

In the case of Norfolk & Western R. Co. v. Gesswine, in the Circuit Court of Appeals, Sixth Circuit, reported in 144 Fed. 56, 75 C. C. A. 214, Judge Lurton wrote the opinion. In that case the uncontradicted evidence was that a trackman was injured, while engaged in working on the track, from a collision with a pássing train. The statute of Ohio, where the case arose, provides for the giving of signals for railroad crossings. The court holds that such statutes are obviously for the benefit of those using, or about to use, the crossing, and do not impose any duty in respect to any other class of persons. This is the construction placed on the Ohio statute in Cleveland, etc., R. Co. v. Workman, 66 Ohio St. 509 (64 N. E. 582, 90 Am. St. Rep. 602). The court said [ Norfolk & Western R. Co. v. Gesswine, supra]:

Gesswine was not a traveler using, or about to use, a crossing. He was not even at work upon the track at a crossing, though there were crossings on either side of him. * * * Failure to discharge some duty owed by the company to employés engaged in track repairing, under the circumstances of this case, is indispensable to a recovery by this plaintiff, and evidence to establish a custom to give signals for another purpose, and for the benefit of the general public using a crossing, was not competent or relevant to make out the breach of an actionable duty to Gesswine.”

It is held that the lower court erred in permitting a witness to testify that he, and others of the gang of which the witness and deceased were members, relied upon the custom of the company to ring and whistle for such crossing to warn them, when repairing in the vicinity, of the approach of such train. Sectionmen whose duty requires them to work upon the track cannot predicate negligence upon disobedience of such a law.

In Philadelphia, etc., R. Co. v. Holden, 93 Md. 417 (49 Atl. 625), the court deals with the question of failure to give signals at public crossings, and held that the rule did not apply to a person who was injured in crossing the railroad at a private crossing. The court, in speaking of the case of Sanborn v. Railroad Co., supra, says that this case is cited in 3 Elliott on Railroads, p. 1733—

“For the proposition that, where a private crossing is located so near a public crossing that signals given thereat can be distinctly heard at the private crossing, the persons using the private crossing are entitled, to the benefit of the signals required at the public crossing, and that if the company fails to give such signals, it will be guilty of negligence. But the learned author remarks: ‘ This, however, seems to us questionable.’
“In 8 Am. & Eng. Enc. Law (2d Ed.), p. 414, title ‘Private Crossings,’a number of authorities are collected, showing considerable divergence of views in regard to the giving of signals required by statute. But the question here presented, namely, whether the failure to blow the whistle at a public station about 2,000 feet from the private crossing where the accident happened is evidence of negligence of the defendant at the latter as respects one crossing at the private or farm crossing, has not often arisen. It was directly presented in Cahill v. Railway Co., 92 Ky. 345 (18 S. W. 2), where the question was answered in the affirmative. But in Chicago, etc., R. Co. v. Eininger, 114 Ill. 79 (29 N. E. 196), it was held that flagmen are for the protection of those crossing at a public cross-' ing. And so, also, it appears that the injury sued for in Ransom v. Railway Co., 62 Wis. 178 (22 N. W. 147, 51 Am. Rep. 718), was inflicted at a point where a public highway crossed the railroad. To the same effect are Norton v. Railroad Co., 113 Mass. 366, and Wakefield v. Railroad Co., 37 Vt. 330 (86 Am. Dec. 711). In Harty v. Railroad Co., 42 N. Y. 468, it appears that the railroad company was required by statute to ring bells, etc., at public crossings, and it was held that no duty was imposed as to persons not at public crossings, though lawfully on the track at another point. In Vandewater v. Railroad Co., 135 N. Y. 588 (32 N. E. 636, 18 L. R. A. 771), this question was presented but not decided. Peck-ham, J., said:
“ ‘ It may be that evidence of the omission to give any signals for the highway [crossing] would not he admissible as bearing upon the question of defendant’s negligence in running its trains at the farm crossing 2,000 feet [distant].’
“It seems to us, however, that upon principle one who, like the plaintiff, was at a private crossing nearly half a mile distant from the place where the signal was required to be given for the public crossing, should not be allowed to complain, under the circumstances of this case, of a failure to give the signal for the latter. Undoubtedly the regulation was made for those at the public crossing, and to extend it to private crossings would practically nullify the long line of decisions in this State, to the effect that no signals are required at the latter. For, if the contention of the plaintiff be sustained, if the defendant fails to give the signal at a public crossing, a double duty is violated, namely, a duty to those about to cross or crossing at a public crossing, and a duty to those in the same situation at a private crossing, whereas we have always held hitherto, that a railroad company owes no such duty to the latter. The result would be that the defendant would be held to the same degree of care, and the same liability would be imposed, when there is a duty to give the signal, as in cases where no such duty exists. A view leading to such a conclusion cannot be adopted.”

In considering this question we have examined more than two score of cases, including all of those cited by counsel upon both sides in their briefs. We have been unable to find a single case where it has been held that a sectionman, or other employe, of a railroad company has been permitted to invoke this statute, or one similar to ours. We have found a number, including Randall v. Railroad Co., supra, and kindred cases, which hold that an employe of a railroad company cannot invoke this rule; that he is not within the class intended to be protected by the statute. His work and duty is upon the track, and is as great away from the crossing as at the crossing. The whole history of the legislation upon this subject shows that it has been for the benefit of the traveler upon the highway who is about to cross, is crossing, or has crossed the highway, and probably might be invoked by a passenger who was injured by reason of a collision caused through the neglect to give the signals required. To hold otherwise would be to do away entirely with the doctrine of fellow-servants, for the statutory duty to use the signals is nondelegable. The fellow-servant doctrine exempts corporations from liability to their own servants for the fault of their fellow-servants, has become a part of the settled law of this country and of England, and it should not be frittered away indirectly by such construction as is here contended for.

For the error in submitting the case to the jury, as pointed out, the judgment below is reversed, and a new trial granted.

McAlvay and Brooke, JJ., concurred with Stone, J.

Blair, J.

I concur in the result upon the ground that there was no evidence tending to prove the negligence relied on, viz., that the locomotive was not equipped with a suitable whistle.

Ostrander, C. J., concurred with Blair, J.


author: Ostrander, 0. J. Bird, J.

text:
    FISHER v. BURROUGHS ADDING MACHINE CO.
    1. Contracts — Compromise and Settlement — Fraud.
    The fact that an architect, who was made the arbiter under a construction contract as between the contractor and owner, allowed certain items claimed by the contractor as extras and disallowed others, is insufficient, unless supported by other evidence of bad faith or collusion, to establish fraud.
    3. Same — Bond—Extras.
    Upon no theory of the case could the contractor recover the cost of a surety bond not required under the terms of the building contract, but furnished by such contractor on the demand of the supervising architect.
    3. Same — Compromise—Waiver.
    It was not a waiver of the provision making the architect the final arbiter, that an agreement was subsequently executed by the parties in which the amount determined .by the finding of the architect was adopted as the correct amount due and was paid and accepted by plaintiff in settlement of his demand.
    4. Same — Conditions Precedent.
    Plaintiff could not recover items claimed to be due without submitting the same to the architect for his certification, and obtaining the certificate, as required by the provisions of the contract.
    Bird, J., dissenting in part.
    Error to Wayne; Donovan, J.
    Submitted October 10, 1911.
    (Docket No. 27.)
    Decided July 5, 1911.
    Assumpsit by George W. Fisher against the Burroughs Adding Machine Company for work and materials. Judgment for plaintiff. Defendant brings error.
    ReVersed, and no new trial granted.

      Walker & Spalding, for appellant.

      Willard E. Warner, for appellee.
   Ostrander, 0. J.

Upon a former trial, judgment in which was reversed by this court (157 Mich. 126 [121 N. W. 756]), defendant introduced no testimony, the trial court being of opinion that a certain agreement reciting that a sum was due to plaintiff from defendant, and the payment of the sum concluded the plaintiff. It was held in this court that if the sum stated in the said agreement to be due was arrived at by mistake, or the agreement was brought about by deception or fraud, plaintiff ought not to be bound. Upon a second trial, the record of which is now before us, it appeared that, with one exception, as to each disputed item of account, whether representing a charge by the plaintiff or a countercharge by defendant, the architect who was made the final arbiter by the terms of the building contract has determined, either that plaintiff is not, or that defendant is, entitled to the amount claimed. All items, whether of charge or of countercharge, which were approved by the architect were included in the settlement of the parties and paid. There is no testimony tending to prove that the architect acted fraudulently or arbitrarily in refusing to plaintiff a certificate for the amount he claims to be due to him.

Plaintiff’s contention is that the action of the architect amounted to a legal fraud. This contention can be supported only upon the ground that the architect has not found to be due as much as the plaintiff claims, and that a jury has agreed with the plaintiff. But the parties made the architect, and not a jury, the final judge.

The item of $59, charged to defendant by plaintiff, which is the exception above noted, was for the premium paid for a surety company bond. The building contract did not require the contractor to give a bond. The architect demanded one, and the plaintiff furnished it. Counsel for plaintiff have not indicated the theory according to which the defendant would be liable to repay this sum to the plaintiff, and no such theory occurs to me.

Nor can it be said that, because an agreement was made concerning the amount due to plaintiff, . the defendant waived the provision in the contract making the architect the final arbiter. As has been stated, the items entering into the computation which was made were, in fact, with the exception which has been noted, items which the architect had passed upon. In other words, defendant agreed to pay what the architect had determined it ought to pay and no more. It paid just the amount which a formal certification would have shown to be due, and there was neither attempt nor purpose to pay more or less, or to allow or disallow items and claims independent of the judgment of the architect and the finality of his decision. It follows that if there are items or contentions which have not been submitted to and allowed or disallowed by the architect, his certification is still required. It is not produced. No such items are shown.

In my opinion, there was no question for the jury, the several motions of defendant made when the plaintiff had rested should have been granted, and a verdict for the defendant directed. The judgment should be reversed and no new trial granted.

Hooker, Moore, McAlvay, Brooke, Blair, and Stone, JJ., concurred with Ostrander, O. J.

Bird, J.

(dissenting). Plaintiff brought this action to recover the balance which he claimed was due him upon a building contract. The declaration was on the contract, with the common counts added. He recovered a judgment in the trial court, and the defendant assigns error in this court.

Plaintiff entered into a written contract with defendant to do the mason work on its factory building in the city of Detroit, according to certain specifications attached thereto, for the sum of $19,769. He claims to have discharged his obligations under this contract, and that there is now due him thereon a balance of $373.60, and a further sum of $1,182.16 for alterations and extras which he furnished at the request of the architect. The defendant contended in the trial court, and now contends in this court, first, that the agreement of settlement of May 19, 1905, under which the defendant paid the sum of $6,211.05, was a final adjustment of all matters of difference between them and a bar to this suit; second, that the architect’s final certificate, which, by the terms of the contract between the parties, was a condition precedent to the right of payment, was never obtained, and no excuse is shown for the failure to obtain it.

First. It appears that after the contract was partially executed, the plaintiff was taken ill and subcontractors were employed to assist in finishing the work. This resulted in several liens being placed on the building by the subcontractors. In order to satisfy these liens and secure a release of the property, the parties entered into an agreement whereby defendant might pay certain of these claims and charge the same to plaintiff’s account. The agreement recited that the defendant was indebted to the plaintiff in the sum of $6,211.05. The defendant claims this agreement was a settlement in full of all matters of difference between them. The plaintiff denies this. Considerable testimony was taken bearing upon the question as to whether the settlement was intended to be final and a receipt in full for all sums owing to the plaintiff on account of the contract. The question was submitted to the jury as a question of fact. The testimony was in conflict and we think the court committed no error in submitting it to them for solution. See former decision in this case, 157 Mich. 126 (121 N. W. 756).

Second. Was the architect’s final certificate a condition precedent to the right of recovery ? The portions of the contract which are material to the determination of this question are as follows:

“First. The contractor shall and will, well and sufficiently perform and finish, under the direction and to the satisfaction of Albert Kahn, architect (acting as agent of said owner), all work called for by plans and specifications for factory building to be built corner of Amsterdam and Second avenues, Detroit, Michigan, under heading ‘Mason Work’ in specifications, agreeably to the drawings and specifications made by said architects, etc. * * *
“Third. Should any alterations be required in the work shown or described by the drawings or specifications, the contractor shall proceed with them, without delay, according to the directions which may be given. In every such case the price agreed to be paid for the said work shall be increased or decreased as the case may require, according to a fair and reasonable valuation of the work, added or omitted, the value of such work to be fixed by fair admeasurement and valuation to be made by the architects, or by some competent and disinterested person or persons appointed by them. In case the valuing of the work in dispute is referred to other than the architects, all expense incurred shall be borne jointly by the contractor and owner, share and share alike. Such alterations or variations shall in no way render void the contract, and no claim for variation or alterations, or the increased or decreased price thereof, shall be valid unless done in pursuance of an order from the architects and notice of such claim made to them in writing within ten days after the commencement of such work. All bills for extras for additional or altered work must be submitted to the architects before final certificate for payment on account of contract will be given, and unless otherwise agreed, no payments will be made on such bills until the final settlement. * * *
Thirteenth. And it is hereby mutually agreed between the parties hereto that the sum to be paid by the owner to the contractor for said work and materials shall be nineteen thousand seven hundred and sixty-nine ($19,769.00) dollars, subject to additions or deductions on account of alterations as hereinbefore provided, and that such sum shall be paid in current funds by the owner to the contractor in installments subject to the provisions of the lien law, as follows:
‘“As the work progresses, upon the architect’s certificate, which shall be based on labor and material furnished, less ten per cent, which will be retained until final payment.’
It being understood that the final payment shall be made within thirty days after this contract is completely finished, provided, that in each of the said cases the architects shall certify in writing that all the work, upon the performance of which the payment is to become due, has been done to their satisfaction. * * *”

It will be observed by the foregoing provisions that the parties have referred the questions of alterations and extras to the architect and authorized him to fix the value of them and they have agreed, as a condition precedent to final payment, that the contractor shall obtain a certificate of the architect that the work has been done to his satisfaction.

It appears that plaintiff submitted his bills for alterations and extras to the architect, and requested their allowance and also requested his final certificate. The architect examined the bills and allowed some and disallowed others. He refused to make the final certificate because of certain defects in the work and materials. It is claimed by plaintiff that, having been refused the certificate, he is now entitled to proceed as though the stipulation had not been in the contract. We cannot agree with this contention. These parties have entered into a written contract and provided in that contract a means of settling any differences that might arise between them as to the value and quality of the work performed under the contract. This provision is a common one in building contracts and has been many times recognized as valid by this court. Hanley v. Walker, 79 Mich. 607 (45 N. W. 57, 8 L. R. A. 207); Guthat v. Gow, 95 Mich. 527 (55 N. W. 442); Weggner v. Greenstine, 114 Mich. 310 (72 N. W. 170).

If the architect has not refused to act, and the defendant has not waived his right to insist on the certificate, and there is no fraud or collusion on the part of the architect and defendant, we think the plaintiff is bound by the determination of the architect. The record shows that the architect was willing to and did act. He examined plaintiff’s bills for alterations and extras and allowed some and disallowed others. As to those which he disallowed, he gave his reasons for so doing. He refused to give the final certificate and pointed out the defective work and materials which prompted him to refuse. The plaintiff consented to some deductions on account of faulty work, but in the main takes issue with the architect as to the defective character of the work and materials. It is suggested by plaintiff that it is a hardship to deprive him of his remedy because the architect withholds the certificate. If it is a hardship, it is one which the plaintiff has brought upon himself by agreeing that the architect shall be the judge of the quality and value of his work. If parties insist upon binding themselves with such stipulations in writing, they must suffer the consequences of this character which come to them as a result of it. No bad faith on the part of either the architect or the defendant has been called to our attention, and we have found no evidence of it in the record.

The trial court instructed the jury that the defendant had waived his right to insist upon the certificate. We are not informed upon what this is based unless it is upon the refusal of the architect to issue it. Evidence of a refusal alone would not justify that conclusion. There was no evidence of an express waiver upon the part of the defendant, and if there were any evidence of implied waiver, such evidence should have been submitted to the jury under proper instructions.

Plaintiff argues that he is entitled to recover on his count of the quantum meruit for the value of the materials and labor furnished less what damage defendant has suffered by reason of the failure to complete the work according to the contract. That is the ordinary rule where there has been a substantial compliance with the contract, but there are exceptions to that rule, and as was said in Hanley v. Walker, supra, we think this is one of them. The contract in that case was very similar to the one under consideration. The same claim was made in that case, and the court, in passing upon it, said, in part, that the ordinary rule ‘ ‘ does not apply to cases where the parties have by their agreement made some act or fact a condition precedent to payment, unless the other party has waived the condition,” and in that case the right to recover under a quantum meruit was denied. We think it should likewise be denied in. this case.

The trial court should have instructed the jury in accordance with the defendant’s second contention, and his failure to do so is ground for reversal.

The judgment of the trial court should be reversed and a new trial ordered.


author: Ostrander, C. J.

text:
    MEYERS v. DETROIT & CHARLEVOIX RAILROAD CO.
    1. Master and Servant — Railroads—Brakemen—Wires—Safe Place — Statutes.
    A brakeman riding on top of a box car is not required at his peril to discover telephone wires stretched across a railroad siding at a height of less than 32 feet, contrary to the provisions of statute; 2 Comp. Laws, § 6354.
    2. ' Same — Contributory Negligence.
    And a special verdict determining in answer to a question that plaintiff could have seen the wires if he had looked for them was not conclusive of the negligence of the brakeman who testified that he did not know they were there.
    3. Same.
    It was not negligent, as a matter of law, for plaintiff to ride on top of the freight car.
    4. Same — Instructions to Jury.
    No error was committed in charging the jury that it was plaintiff’s duty if he had actual knowledge of the existence of the wire to protect himself, and that if on this occasion he knew or could in the exercise of ordinary care have discovered the wires, he was guilty of negligence; as the language considered with the remainder of the charge did not limit plaintiff’s knowledge to the particular occasion, but permitted a finding that if he had or ought to have had previous knowledge, he was negligent.
    6. Same.
    It was sufficient, in instructing the jury as to the burden of proof, to define “ preponderance of evidence” and “burden of proof,” to inform the jury that the burden was on plaintiff to prove the various elements of his case, as specified by the court, and to charge that plaintiff to recover must show negligence, freedom from contributory negligence, and an injury as alleged, accompanied by proper definitions of negligence and contributory negligence.
    Error to Charlevoix; Mayne, J.
    Submitted October 13,1910.
    (Docket No. 59.)
    Decided July 5, 1911.
    Case by Warren M. Meyers against the Detroit & Charlevoix Railroad Company for personal injuries. Judgment for plaintiff. Defendant brings error.
    Affirmed.

      Clayton L. Bailey (Cooley & Hewitt, of counsel), for appellant.

      Elisha N. Clink (Stephen H. Clink, of counsel), for appellee.
   Ostrander, C. J.

Defendant operates a railroad through the village of Alba. At that place a sawmill and yard are maintained by Tindle & Jackson. Prior to December, 1907, defendant had constructed and maintained a spur track into this yard for the accommodation of Tindle & Jackson. This spur was known as siding No. 1. In December, 1907, defendant constructed a second spur from siding No. 1, which was known as siding No. 2. The siding last constructed passed near the office of Tindle & Jackson. At the time said siding was constructed, there was in existence a telephone line (two wires) which crossed both sidings and was attached to a pole nailed to one corner of the office building. After siding No. 2 was completed, December 20, 190?,' and when the first engine of defendant passed over it, it was found that the wire was so low as to catch upon the higher parts of the engine. It was lifted over by defendant’s employés, to permit the engine to pass in onto the siding, but, when the engine returned to the main track, it was found to have been cut or broken down, and the loose ends thrown away from the track. The record does not disclose by whom the wires were cut. It does appear, however, that they were replaced next day by an employé of the Swaverly Telephone Company. Some time later they were broken again by some unknown agency, and they were again replaced by the same employé, but at a somewhat greater height. At no time, however, were they placed as high as 22 feet above the established grade of the siding, as required by statute. The wires remained in approximately the same position from December 20,190?, to May 22, 1908, when plaintiff was injured.

Plaintiff had been employed by defendant for seven years as night watchman, brakeman, freight conductor, fireman and again as brakeman, baggageman, and ex-pressman, which last-mentioned duties he was performing at the time of his injury, and for some months prior thereto. During the five months preceding the accident some 200 cars had been placed upon one or other of the sidings, both of which passed under the wires, a great many of said cars being handled by the crew of which plaintiff was a member. He testified that he was familiar with the tracks of both sidings, but said, however, that he could not recollect ever having been over siding No. 2 but once before the day of his injury and upon that occasion he was handling a flat car. He further testified that he did not know that the wires were there.

On May 22, 1908, plaintiff, with his conductor, rode upon the engine in upon the siding No. 2, under the wires in question, and to the farther end of the siding, for the purpose of taking out a box car. When the engine reached the car, plaintiff went to the rear end of the car, turned the angle cock, climbed the ladder, and released the brake. He then went forward to the front end of the car where he could observe his conductor, who was between the engine and car, cutting in the air which operates the brake. Observing that his conductor was all right, he signaled to the engineer to proceed. He then remained standing upon the top of the car, but, instead of facing in the direction in which he was going, he turned his back to the engine for the purpose (he testifies) of looking at the track of the siding, which was somewhat out of repair. While in this position, he came in contact with the wires in question, which threw him down, and, as the car passed beneath him, dragged him to the rear end of the car and against the brake-staff with such violence as to, break two of his ribs. He also claims that as a result of the injury a hernia of long standing was enlarged, and his sense of hearing was impaired.

The rules of defendant, with which plaintiff testified he was familiar, provide, in' part, as follows:

“Rule 20. Extreme care must be taken by all employes riding on top of or on the side of freight cars in passing buildings and other obstructions. The cars running over the road are of different heights and size, some of them not allowing a man to stand on top or ride upon the side while passing by bridges, buildings, and other obstructions. All employés must carefully inform themselves on this point and take care to avoid injury to themselves for this cause.
“Rule 21. Cars running over this road are equipped with different kinds of ladders, some having the ladders on the end, others on the side, some having stirrups on the bottoms of the car bodies and others without. Trainmen and switchmen will examine ladders of all cars and note the situation and condition before making use of same. * * *
“Rule 22. At many stations on the road there are cat-tie guards within station limits. Trainmen and switch-men working about yards or at such stations are required to exercise great care to avoid injury in passing over such cattle guards.
“Attention is also called to the necessity of equal care in working about switches at stations and in yards to avoid injury by having feet caught in frogs, switches, and guard rails.
“Jumping on or off cars or engines in motion, entering between cars in motion to couple or uncouple them, and all similar imprudences are forbidden.
“Every employé is required to exercise the utmost caution to avoid injury to himself or fellow employés especially in coupling, switching, or other movements of cars and trains. * * *
“Rule 31. An employé observing any obstructions or damage to the road or bridges, or observing any circumstances that indicate danger in any way, will leave at nearest telegraph station a written report of the same, and will take such further steps as will insure safety. All such reports must be telegraphed by the agent or operator to the general manager, and notice of the obstruction or danger must be given to conductors of all trains, until orders are received from the general manager to discontinue such notice.”

Two of plaintiff’s witnesses, who saw the accident, one from a point 300 feet distant, and the other from a point from 100 to 135 feet distant, testified that the wires were plainly visible from where they stood. A witness for defendant who stood aside to let the train pass at a point 135 or 150 feet away from the wires testified that, after the train passed, he saw that plaintiff was in danger from the wires, and that he tried, without success, to get his attention by calling to him.

The following special questions were submitted to and answered by the jury:

“Was the track cleared and the wires removed therefrom when the engine came out after the initial trip in on the siding ?
“Answer. Yes.
“ When Meyers stood oh the box car and gave the signal to go ahead, could he have seen those wires if he had looked ?
“Answer. Yes.
“Was the plaintiff, Meyers, familiar with the rules of the company introduced in evidence ?
“Answer. Yes.”

These answers were accompanied by a general verdict for plaintiff. In the brief for appellant it is said:

“The defendant relies for reversal of the judgment principally upon the grounds that the plaintiff was guilty of contributory negligence as a matter of law; that the answers of the jury to the special questions are inconsistent with its general verdict; and that the court erred in its charge to the jury concerning the knowledge which plaintiff had at the time of his injury that the wires were there (assignment No. 16) and in its charge upon the burden of proof (assignment No. 17).”

The argument is limited to the matters stated. Whether the special verdict is controlling depends upon whether the fact that plaintiff could have seen the telephone wires, had he looked, conclusively establishes his want of due care. Plaintiff testified that he did not know the wires were there. If he did not, was he necessarily at fault because he did not look for them? If a failure to look for them is excused, the special and general verdict may stand together. It is natural for one to look for, and to avoid if necessary, those things which experience has shown may exist. In a particular case there may be a duty to know whether any peril, expected and usual, or unexpected and unusual, exists.

Speaking generally, and with respect to the particular and unlawful obstruction created by the wires, plaintiff’s duty was not a duty to learn at his peril whether they were there. He owed a duty of reasonable observation of the surroundings in the light of experience. He was not required to anticipate that in stringing wires over the track the law would be violated. No wires strung at a lawful height would have imperiled him.

It is common knowledge, and if not it may become so by experiment, that a single telephone wire carried at an elevation is not always easily visible to one who is actually looking for it. Two of such wires stretched at some distance from each other, as is usual, are not always easily discernible. One might or might not see them without considerable effort. And if two persons from different points were looking for the same wire, one might discover it easily and the other with difficulty. One may be generally observant, even diligently observant, of surroundings, without discovering telephone wires in the air, especially when their presence there is not expected. Therefore we are not prepared to say that because plaintiff might have seen the wires had he looked for them, or might have seen them as he approached them, his negligence is conclusively established.

It is said that the position of plaintiff was a perilous one, deliberately assumed. It was only perilous because there were two telephone wires stretched across the track at an unlawful height. Plaintiff went upon the car in the discharge of his duty. He could ride out of the siding upon the top of the car, upon its side, or, probably, he might have climbed to and upon the locomotive. Of these courses open to him, it would seem that remaining upon the top of the car was the least dangerous, if the wires were not there, and, if he did not know about the wires, it would seem the least dangerous to him. In brief, everything that plaintiff did appears prudent enough if we accept the fact that he did not know about, and had no good reason to apprehend, the presence of the wires. This cannot be said of the conduct considered by this court in Benage v. Railway Co., 102 Mich. 72 (60 N. W. 286), and decision in that case and in Glover v. Scotten, 82 Mich. 369 (46 N. W. 936), turns upon the point that the position assumed by the plaintiff was inherently as well as comparatively dangerous, and that a comparatively safe place had been provided. Nor do the facts bring the case within the rule applied in Carr v. Railway Co., 152 Mich. 138 (115 N. W. 1068), a case like many others in which the basis for decision was the duty of plaintiff to familiarize himself with the location of all permanent structures along a siding. Upon the whole record, the question of plaintiff’s negligence appears to be one of fact, determined in plaintiff’s favor by the general verdict.

It is assigned as error that the court in instructing the jury referred them with respect to plaintiff’s knowledge to the particular occasion. The language used was:

“But, if the plaintiff had actual knowledge of the existence of this wire, then it was his duty to protect himself, and, if he did not do so, he was guilty of contributory negligence and cannot recover. So it will be necessary for you to decide whether on this occasion the plaintiff knew that the wire was there. Or, in other words, could he or would he, provided he was in the exercise of ordinary care on that occasion, have discovered it ? ”

The court first stated the respective claims and positions of the parties in a manner which counsel announced to be satisfactory. The language quoted, considered with the remainder of the charge, does not limit plaintiff’s knowledge of the danger of the wires to this particular occasion, and does permit the jury to find that if he had previous knowledge, or, if he ought to have acquired the knowledge that they were there, he could not recover. In the immediately subsequent portion of the charge, the attention of the jury is directed to plaintiff’s claim that he had never before been so far back on the siding and had never observed the wires, and did not observe them on the occasion of his injury. We cannot think the jury misapprehended the statement of the court.

Upon the subject of the burden of proof, it is said that the court failed to give equal emphasis to the different elements to be established by plaintiff. In various phrasing the court stated all that plaintiff must prove and the meaning of the terms “preponderance of evidence” and “burden of proof. ” He said the pláintiff in order to recover must show the negligence of the defendant, his freedom from negligence, and that he had sustained injury. He defined “negligence” and “contributory negligence,” and said plaintiff must affirmatively show negligence of defendant and freedom from negligence on his part.

We are of opinion that reversible error is not made out, and that the judgment should be affirmed.

Bird, Brooke, Blair, and Stone, JJ.3 concurred.


author: Bird, J.

text:
    WAGNER v. KIRCHBERG.
    1. Deeds — Escrow—Revocation.
    A deed placed in escrow to be delivered to the grantee on the death of the grantor who intends to reserve the right of recalling it, does not pass title, and he may obtain and destroy the deed and defeat the conveyance.
    2. Same.
    Where defendant and his wife made a deed to his daughter and placed the instrument in escrow, to be delivered at the death of the grantors and they both made wills reciting that no provision was included for the daughter because they had provided for her by such deed, and it was shown that defendant had proposed to the daughter to collect the rents herself and pay him a stated sum during his life, and had stated that he had conveyed the property to complainant, the evidence is held to show that the deed was not subject to recall.
    Appeal from Wayne; Rohnert, J.
    Submitted January 5, 1911.
    (Docket No. 26.)
    Decided July 5, 1911.
    Bill by Millie K. Wagner against Christian Kirchberg to compel the redelivery of a deed in escrow. From a decree for complainant, defendant appeals.
    Affirmed.

      Richard G. Kirchner {Otto Kirchner, of counsel), for complainant.

      O. E. Angstman, for defendant.
   Bird, J.

The bill of complaint in this case was filed to compel the defendant to re-execute a deed to complainant of certain real estate, and place the same in escrow, to be delivered to her at defendant’s death, to take the place of a similar conveyance made in 1906 by defendant, and alleged to have been delivered in escrow, and afterwards wrongfully destroyed by him.

It is the claim of the complainant that in 1906 the defendant and his wife, her father and mother, conveyed to her two stores on Grand River avenue, and a dwelling house on Charlotte avenue, in the city of Detroit, and left the deed in escrow with Mr. Angstman, the attorney who prepared it, to be recorded and delivered to the complainant upon the death of the grantors; that subsequently defendant requested Mr. Angstman to surrender the deed to him, but Mr.- Angstman refused, unless the defendant would procure the written order of complainant; that defendant obtained the signature of complainant to the order upon the representations to her that he had had a quarrel with Mr. Angstman, and desired to transfer the deed from his custody to a trust company; that, upon receipt of this order, Mr. Angstman delivered the deed to defendant, who wrongfully destroyed it. It is claimed that the deed was irrevocably delivered to Mr. Angstman by the grantors, and that defendant had no legal right to recall it. It is further suggested that as the property conveyed was owned by the defendant and his wife by the entireties, and, the wife being now deceased, the revocation of the deed is a fraud upon the deceased wife as well as upon the grantee.

The defendant admits the execution of the deed, and that it was deposited with Mr. Angstman to be delivered to the complainant upon the death of the grantors, but he insists that Mr. Angstman’s instructions were to deliver it if it was still in his possession, and was not called for before his death; that he never intended to place it beyond his control. He denies that he made any promise or representation to complainant to get her signature to the order other than that he and his wife desired to make some changes in the disposition of their property, and that, when he so informed her, she willingly signed it. The controversy narrows down to a question of fact as to what the intention of the grantors was at the time the deeds were delivered to Mr. Angstman.

If at the time the grantors left the deed with Mr. Angstman they did not intend to deprive themselves of the right to recall it, the defendant was within his right when he destroyed it. Cole v. Cole, 144 Mich. 676 (108 N. W. 101), and cases cited.

The complainant testified that soon after the deed was made her father advised her of the fact that he had given her the property and deeded it to her, and subsequently said to her she might as well take charge of the stores, collect the rents, and pay the taxes, and give him a stated sum each month, but this suggestion was never carried out. Complainant’s husband, John Wagner, and her brother, Christian L. Kirchberg, both testified to conversations with the defendant, in which he stated that he had deeded the stores to complainant.

As tending to show what the arrangement was between defendant and his wife at the time, the will of Mrs. Kirchberg was admitted in evidence. The will recites that no provision was made therein for complainant because of the deed of the stores and dwelling which she and her husband had recently deeded to her. Against this showing on the part of complainant, we have the positive testimony of the defendant that he never intended to place the deed beyond his recall, and that his instructions to Mr. Angstman were that he should deliver it if it was still in his possession and not called for before his death. The only other person present save Mr. Angstman was his son, William, who corroborates the defendant’s testimony as to what the instructions were. Mr. Angstman did not testify.- Had he done so, it would have been very helpful in the determination of the question. His refusal to allow defendant to have the deed when he called for it furnishes a very strong inference as to what he understood the arrangement was, but he may have understood it differently than the defendant did.

Upon the whole record, we are convinced that the defendant and his wife made the deed in question and deposited it with Mr. Angstman with the intention of making it a final disposition of the property to complainant. This view of the case is consistent with the recital in their wills that they refrained from giving anything to complainant because they had deeded her certain property. It is also consistent with the talk defendant had with complainant, in which he told her she might as well take possession of the stores they had deeded her and care for them, and give him a monthly allowance out of the rentals. And no other view of the case is consistent with the conduct of Mr. Angstman in refusing to give the deed to defendant without an order from complainant.

The decree of the trial court is affirmed. No costs will be allowed.

Ostrander, 0. J:, and Hooker, Moore, McAlvay, Brooke, Blair, and Stone, JJ., concurred.