text:
    WILLIAM R. ROACH & CO. v. BLAIR.
    1. Trial — Jury—Challenges—Appeal and Error.
    Where appellant’s attorney asked a juror, who was later excused for cause, whether or not he knew the insurance company which had the policy on plaintiff’s building, and the juror’s answer was excluded, any error that might have resulted from the ruling was harmless, as defendant was not compelled to exhaust its peremptory challenges, the question not arising as to any other juror; the court . could not assume that counsel would have asked any other juror the same question, in the absence of anything in the record to so indicate, and while counsel may have been entitled to inquire if the juror was in any manner interested in the insurance company, the form of the question was not such as to lead to the exclusion of material information of that nature.
    2. Railroads — Negligence—Setting Fires.
    Defendant receivers operated a railroad, which connected with plaintiff’s warehouse by a siding. In backing a freight car on the side track, the car was pushed too far and was derailed, and while the switch engine was making' an effort to draw the car hack on the rails, a fire started in the roof of plaintiff’s building, which destroyed it. The wind was blowing from the siding towards the building. The entire power of the engine was required to bring back the car to the rails and it several times emitted volumes of smoke and cinders; the track was also slippery and when the drivers slipped the volume of smoke and burning material was increased. There was expert testimony that the engine was improperly managed. Held, that the trial court was not in error in leaving to the jury the question of negligence in operating defendant’s engine.
    3. Same — Evidence—Opinions.
    It was a proper subject for expert testimony as to what effect the slipping of the drivers would have and whether the engine was carefully handled.
    4. Evidence — Value—Majkket Peice.
    Testimony, in an action for setting fire to plaintiff’s warehouse, that the building had no market value at the place and time of destruction, that the materials of which it was constructed were worth a stated amount, together with what were the other costs of building it and its age, etc., warranted the court in charging the jury that if they found the building had no market value, they should determine the fair Cash value from such evidence.
    Error to Oceana; Sullivan, J.
    Submitted January 21, 1915.
    (Docket No. 34.)
    Decided January 3, 1916.
    Rehearing denied April 21, 1916.
    Case by William R. Roach & Company against Frank W. Blair and others, receivers of the Pere Marquette Railroad Company, for the negligent operation of one of its locomotives and the setting of -a fire. Judgment for plaintiff. Defendants bring error.
    Affirmed.

      Parker, Shields & Brown (Charles E. Ward, S. L. Merriam, and J. C. Bills, of counsel), for appellants.

      Cross, Vanderwerp, Foote & Ross (Zane, Morse & McKinney and Fred J. Russell, of counsel), for appellee.
   Bird, J.

Plaintiff was the owner of a large four-story building at Hart, which it used as a warehouse, for the storage of machinery, grains, and seeds. A side track on the north side of the warehouse connected it with defendant’s line. Plaintiff requested defendant to place a car on the siding for the purpose of loading. On August 14, 1912, in complying with the request, the defendant’s switch engine ran the car onto the siding and passed the warehouse door on to a slag pile, which was used as a bumper at the end of the siding. Its inability to stop the car at the warehouse door was said to be due to the fact that the track was downgrade and was slippery; owing to the grass which had grown over the rail. Two freight cars were then placed ahead of the switch engine to give it the proper amount of slack in starting, and the car was re-railed, but not without considerable effort. Soon after the switching crew had left, the northeast corner of the roof of the warehouse was observed to be oh fire. By reason of its height and inadequate fire protection at. Hart, the warehouse and contents were destroyed. The case was tried upon the theory that the fire occurred by reason of defendant’s negligence, in that it failed and neglected to have the machinery, smokestack, and fire box of its engine properly equipped and in good repair, and, further, because the engine was not properly operated and managed. In reply to a special question the jury found that the engine, machinery, smokestack, and fire box were properly equipped and in good working order, but that the engine was improperly and negligently operated and managed. The jury returned a verdict for the plaintiff.

The juror Claude Till, when examined by defendant on his voir dire, was asked the following question:

“Do you know anything about an insurance company that insures canning factories, named the Canner’s Exchange, or the Canner’s Inter Insurance Bureau?”

The question was objected to on the ground that it was not a proper question to the juror, that it was immaterial and irrelevant, and the objection was sustained. Mr. Ward, counsel for defendant, then stated:

“I possibly ought to state that we claim that that is the party in interest in this case, really, the real party in interest. We claim the right to examine the juror as to his acquaintance with any such concern.”

The trial court adhered to his ruling, and defendant’s counsel excepted. This ruling is relied on as error. No further or other question was propounded to the juror, save the one quoted, but the juror was later excused for cause without objection when it was learned that he was in the employ of one of plaintiff’s counsel. Counsel argue that the question was proper and should have been answered, in order that they might—

“ascertain whether the proposed juror was interested in the insurance company, or had relatives or friends connected with it.”

Assuming that the question is properly before us, we think the question was one which was within the discretion of the trial court. It was not very material whether he was acquainted with any such insurance company. Undoubtedly counsel had the right to inquire whether he was interested in the insurance company, or whether he' had any relatives connected therewith, but neither one of these questions was asked. The question asked was, “if he was, acquainted with such company.” We are not prepared to hold that the exclusion of an answer to the question under the circumstances was reversible error. We are further of the opinion that 'the question is not properly before us. Had this juror sat in. the case, or had the circumstances driven defendant’s counsel to exhaust its peremptory challenges, the record would have been in form to raise the question, but the juror was excused for cause, and therefore no injury resulted, even conceding the court was wrong in his ruling. Neither this question nor any other question pertaining to it was propounded to any other juror. Neither was any request made that counsel should have the benefit of the same examination with any of the other jurors. It must be admitted that, so far as Till was concerned, the error, if it were one, was harmless, and as it was raised with no other juror, the record does not present a basis for raising the question. This court cannot assume that counsel desired to or would have asked the same question of other jurors.

It is urged that, under the undisputed testimony, the jury should have been instructed, in accordance with defendant’s fourth request, that the engine was properly managed on the occasion in question. The testimony shows that in attempting to re-rail the car, the whole power of the engine was used, and that she threw out of her stack large volumes of smoke and fire, and that on several occasions, when the drivers slipped, the volume of smoke and fire was increased. While laboring under these conditions, the engine stood nearly under where the fire was first seen on the roof, with the wind blowing from the northwest. A witness who qualified as an expert testified, in answer to the hypothetical question, that in his opinion the engine was not properly managed. The testimony of this expert witness was subsequently stricken from the case, but we think it was competent. What effect the slipping of the drivers would have on the fire,- and whther she was properly handled, having in mind the surroundings, was a proper subject of opinion evidence for those who were skilled in the operation of locomotives. See McDonald v. Railroad Co., 108 Mich. 7 (65 N. W. 597); Mayer v. Railway, 152 Mich. 276. (116 N. W. 429). The testimony offered, bearing on defendant’s negligence, raised an issue for the jury.

Complaint is made that the rule given to the jury to determine the damages to the building was not the proper one. The trial court instructed them that if they found the plaintiff was entitled to recover it was—

“entitled to recover from the defendants as damages such as will fairly compensate it for its loss by reason of said fire, which sum is measured by the fair cash value at said time and place of said property which was destroyed by said fire, and the diminution in value of property injured and not destroyed, caused by said fire, not exceeding the amount claimed by the plaintiff. * % *
“There has been evidence here as to the price paid by the plaintiff for the real property — and by that it means the building' or the land on which the building stood — and evidence of repairs and remodeling of the interior of such building, and there has been evidence as to the amount of material in the construction of the building at the time of the said fire and the worth and value of the material, if new, and evidence as to the labor and material required to replace such a building, and also evidence as to the fair cash market value of the building. All these matters have been received as bearing on the one question of its fair cash value at the time and place of the fire.”

They were further instructed, in substance, that, if the building had no market value in Hart, then they should determine what its real cash value was at the time and place.

It is insisted that the true measure of damages was the market value, and that it was error to admit testimony bearing upon its cost and the value of the materials that went into it. It was said in the analogous case of Close v. Railway, 169 Mich. 392 (135 N. W. 346), that:

“Where property destroyed had no market value, the real or ordinary value, based upon all facts connected with such property, such as its cost, its uses to which it has been put, its age, its condition, location, and the like should be determined. 3 Elliott on Railroads, § 1239.” '

The plaintiff offered testimony that a building, the character of the one which was destroyed, had no market value in Hart, and, relying upon this showing, the plaintiff proceeded to show that it had a true cash value, and introduced testimony of .its size, location, the materials with which it was built, its age, for the purpose of enabling the jury to determine what the actual cash value was. The instructions appear to be in accord with the general rule applicable to such cases.

Under its plea defendant gave notice that it would show upon the trial that the side track was constructed for plaintiff or its predecessor in title, in pursuance of a certain contract or lease, the terms of which exempted defendant from liability in such cases. Plaintiff demanded an inspection thereof, and the trial court, after a hearing, made an order of discovery. This order was never complied with, presumably because the defendant could not produce it. On the trial defendant offered an “application” for a side track, signed by the Hart Potato Starch Company, a former owner of the premises, together with a form of contract or lease which it undertook to prove always followed the acceptance of such applications. It appeared, however, from its own witness, that the contract or lease did not always follow the application. The trial court excluded the application and this phase of the defense, and counsel assign error on the ruling. The supplementary proof by.which it was attempted to make the application admissible was not conclusive enough to make it admissible. We see no error in the ruling.

Appellant complains in numerous assignments of the rulings of the trial court, in the admission and rejection of testimony, and in connection with, these pomplaints in many instances he quotes question and answer of counsel and witness, and also the rulings and remarks of the court, for the purpose of showing the unfair attitude of the court. We cannot well give attention in this opinion to all these assignments. It will suffice to say, however, that we have given them careful attention, and find that the record discloses jnany instances in which the trial court restricted the right of cross-examination; but in most of them we think the trial court was justified in so doing, as the examination had wandered too far from the issue, and in other instances we are of the opinion that the trial court was not as liberal as he might have been. Instances also appear where the trial court exhibited impatience, but we find nothing in the rulings nor in the attitude of the court which merit a reversal of the case. The trial was a long one, with a large amount involved, with able counsel pressing their several contentions with a great deal of zeal. This necessarily created a trying position for the trial court, and that he should, at times, have grown impatient and rather discourteous is not to be wondered at.

We find no reversible error in the remaining assignments. The judgment will be affirmed.

Stone, C. J., and Kuhn, Ostrander, Moore, Steere, and Brooke, JJ., concurred.

The late Justice McAlvay took no part in this decision. •


source: Caselaw Access Project

author: Bird, J.

license: Public Domain

text:
    REPPERD v. CHAPIN.
    1. Municipal Corporations — Streets—Negligence.
    Plaintiff drove his’horse into an-excavation in one of the streets of the city of Jackson one evening, and brought suit, claiming that there were no proper guards and the red lights which were placed on the ditch were so located as to be misleading. He gave evidence that he stopped his horse and looked for the passage, which he concluded was between the lights. A passageway had been left at one side. The evidence tended to show that by reason of the lights in the- street and the shadows cast thereby he was unable to discover the passage. The plumbers who dug the ditch and the city were made parties defendant. Under an ordinance of the municipal corporation a permit to excavate in the street had been issued on the day before the accident. Held, that the trial court erred in directing a verdict for the defendant city, although an ordinance thereof provided that no such excavation should be left open over night.
    2. Same — Notice—Danger in Streets.
    Having authorized the plumbers to open the excavation, the city had notice or knowledge of the fact that the excavation was to be dug, and its liability to third persons for injuries was no different than as though it were doing the work itself.
    3. Same — Ordinance.
    And the ci'ty could not escape liability by enacting an ordinance so as to lessen the liability imposed on it by statute.

      4. Same — Contributory Negligence — Due Care — Jury Question.
    Under evidence, which was somewhat conflicting as to the exact location of the red lights and the effect caused •by an electric light near the point of excavation, the court erred in holding, as a matter of law, that plaintiff was guilty of contributory negligence, and in directing a verdict for the individual defendants.
    Error to Jackson; Parkinson, J.
    Submitted January 26, 1915.
    (Docket No. 83.)
    Decided January 3, 1916.

      Case by Samuel I. Repperd against A. Fred Chapin and George A. Maloney, copartners, doing business as Chapin & Maloney, and the city of Jackson, for injuries to plaintiff’s horse. Judgment for defendants on a verdict directed by the court. Plaintiff brings error.
    Reversed.

      Thomas M. Poynton, for appellant.

      Albert O. Reece, for appellees.
   Bird, J.

While plaintiff’s horse was being driven in an easterly direction on Oak Hill avenue, in the city of Jackson, at about the hour of 9 o’clock in the evening, the driver discovered ahead of him some red lights. It appeared to him that two red lights were located near the north curb, and one directly south therefrom near the south curb. He drove to within four rods of the lights, stopped his horse, and noticed that an excavation had been made across the street, but discovered no barriers, and there were none. From, what he and his companion could observe from the situation and location of the lights he concluded that the-way was clear between the lights. He drove on and. into the excavation, injuring the horse so badly that it-was wholly lost to plaintiff. It was discovered after the accident that a way had been provided near the south curb for the passage of teams and vehicles. To-recover the value of the horse, this suit was instituted,, and the city of Jackson was charged with negligence-in failing to keep the street in a condition reasonably safe and convenient for public travel, and Chapin &• Maloney, the plumbers who opened the excavation, were charged with negligence in failing to properly guard and protect the opening. From a directed verdict in favor of the defendants, the plaintiff has assigned error.

Was the city of Jackson liable? It appears that. the other defendants are licensed plumbers in the city of Jackson, and a permit had been given to them the day before by the city to make this excavation, and that an ordinance of the city of Jackson provided that no such excavation should be left open over night. The trial court was of the opinion that no negligence had been shown upon the part of the city, because it had received no notice that the excavation was left open in violation of the ordinance; and that the city could not presume that the plumbers would violate the ordinance in leaving it open over night; in other words, the trial court with this situation applied the rule which prevails where the municipality charged with the duty of keeping the highway in repair has no notice or knowledge that the highway is out of repair, and to which it has not given its consent. In making application of .this rule, we think the trial court was in error. In the present case the city of Jackson authorized the other defendants to open the excavation. It thereby had notice and knowledge that the excavation was about to be made. After that its liability to third persons for injuries was no different than as though it were doing the work itself. Joslyn v. City of Detroit, 74 Mich. 458 (42 N. W. 50); Southwell v. City of Detroit, 74 Mich. 438 (42 N. W. 118); Hayes v. City of West Bay City, 91 Mich. 419 (51 N. W. 1067) ; Baker v. City of Grand Rapids, 111 Mich. 447 (69 N. W. 740); Monje v. City of Grand Rapids, 122 Mich. 645 (81 N. W. 574). The case last cited is especially applicable to the present one, for the reason that the excavation was made by a licensed plumber, and the same point was urged that the city had no notice of the defect.

To permit the city to escape liability on the ground of its ordinance would be to concede that the city could by a well-worded ordinance lessen the liability placed upon it by the statute. The question as to whether the city was negligent in failing to properly guard the excavation was one which should have been submitted to the jury.

The trial court held that the defendants Chapin & Maloney were not liable on the ground that the driver of the horse was guilty of contributory negligence in failing to make sure what the situation was after he saw the signals of danger and before he proceeded. There was much controversy in the case as to the exact location of the lights; also as to the effect which the electric light, together with the shade, produced at the point of excavation. We do not think it can be said, as a matter of , law, that the driver was guilty of contributory negligence. Whether he did what an ordinarily careful and prudent man would have done under similar circumstances was a question to be determined by the jury. The judgment must be reversed, and a new trial ordered.

Stone, C. J., and Kuhn, Ostrander, .Moore, Steere, and Brooke, JJ., concurred.

The late Justice McAlvay took no part in this decision.


author: Steere, J.

text:
    TUTTLE v. BRISCOE MANUFACTURING CO.
    1. Damages — Death—Estates oe Decedents — Negugence.
    In an action for running down and killing plaintiff’s decedent with defendant’s motor truck, as it passed across the sidewalk on a driveway, damages of $10,000 were not excessive for an expectancy of over 26 years, decedent being 42 years of age, a married man with a family, and earning a salary of $3,500 per year.

      2. Automobiles — Negligence—Due Cabe — Pleading. '
    A declaration, alleging that defendant’s truck lfwas out of repair, that its driver was incompetent, and that he did not sound, his horn, or give any warning of his approach, also that he did not use proper and reasonable caution and judgment in running, operating, and propelling the auto truck, did not have it under complete control, did not slacken his speed, or keep a careful and proper lookout, and, when he perceived that decedent was not aware of the approaching truck, did not give a signal, but propelled and operated the truck so negligently, carelessly, against and upon the intestate, etc., sufficiently charged negligence in the operation of the motor vehicle, and sufficiently stated plaintiff’s claim that the driver negligently managed the car.
    3. Same — Subsequent Negligence.
    Irrespective of the question of plaintiff’s duty to be on the lookout for his own safety, there are occasions when he is in point of fact ignorant of approaching danger, and if the driver has had time to realize, or, if he had kept a lookout, ought to have realized the peril of the other, he is required to use increased caution to avoid injuring him.
    4. Same — Cabe Required.
    And one driving a heavy, powerful automobile truck is charged with the duty to exercise every reasonable precaution to avoid injuries to a pedestrian who is lawfully on the sidewalk.
    5. Same — Negligence—Death.
    Decedent was returning from a factory office and started along the sidewalk towards his car, crossing a drive or passageway in doing so, when defendant’s motor truck came out of the covered portion of the drive, and, as it neared decedent, the driver checked its speed so as to run at two or three miles an hour, and, as he claimed, blew his horn. Deceased apparently did not hear the signal. Plaintiff’s testimony showed that decedent was just at that moment told by an employee of the factory that he could not enter there, and he stopped and was about to turn when the truck struck him and knocked him down. Defendant’s driver claimed that he backed right in front of the car. There was ample room, to have turned and avoided plaintiff’s intestate, and, after the driver applied the emergency brake, the truck ran about 17 feet before it stopped. The driver testified that decedent was five or six feet from the car when he discovered the peril of the pedestrian and attempted to stop the car. Held, that the conflicting testimony presented a question for the jury as to the negligence of the driver, and the court properly submitted it to them. Held, also, that the question of intestate’s contributory negligence was one of fact.
    6. Same — Contributory Negiigence.
    While it was the duty of decedent to exercise ordinary care for his own safety, he was not required, as a matter of law, to' look back, while he was out in the street within the line of the sidewalk, to see if he was going to be run over by a conveyance from behind.
    Error to Wayne; Hally, J.
    Submitted October 6, 1915.
    (Docket No. 9.)
    Decided January 3, 1916.
    Case by Carl B. Tuttle, as administrator of the estate of William H. Eaton, deceased, against the Briscoe Manufacturing Company for the wrongful death of plaintiffs decedent. Judgment for plaintiff. Defendant brings error.
    Affirmed.

      Keena, Lightner, Oxtoby & Hanley, for appellant.

      Bishop & Kilpatrick, for appellee.
   Steere, J.

On November 11, 1912, plaintiffs intestate, William H. Eaton, was run over and fatally injured by a motor truck of defendant driven by one of its employees. This writ of error is brought to review a verdict and judgment for $10,000 rendered in the Wayne county circuit court in an action by plaintiff as administrator to recover damages for Eaton’s death.

The accident occurred on or near the sidewalk in front of the Abbott automobile factory on the west side of Beaufait avenue in the city of Detroit, at a point where a driveway leads west from the pavement into and through the factory building which fronts on and along the street line 4% feet back of the sidewalk, which is 6 feet in width with its outer edge about 11 feet from the street curb. The driveway is 17% feet wide where it comes through and out of the building onto the street where were two hinged gates, which joined in the center of the passageway when closed. From there it approaches the pavement with a slight decline, its width expanding with curves each' way which are about 48 feet apart at the street curb line. Eaton was a middle-aged business man residing in Detroit, and owned an Abbott car upon which he was having some repairs made at a garage owned by a Mr. Dan-forth in the western part of the city, and on the morning of the accident they, with an employee of Danforth named Findlay, rode over in the car to the Abbott factory to get a new carburetor for it, stopping the car in front of the factory at the curb just north of the driveway, when Eaton, leaving Danforth, who had driven the car, sitting in the front seat with his engine running, and Findlay in the rear seat, went diagonally across the driveway to the office, which was located adjacent to it on the ground floor on the south side with an entrance from the sidewalk. He soon came out of the office and started northeast across the driveway\towards his car and made some call or motion to its occupants indicating they should come on, when the watchman or gatekeeper at the open entrance of the passageway spoke and said, “You can’t come in here,” attracting Eaton’s attention and apparently causing him to halt, or turn, or step back (exactly what he did is in dispute), and just then a heavy Sampson auto truck of defendant, weighing three tons, coming out of the entrance way, struck and threw him down, the left front wheel passing over his neck and killing him instantly, stopping with his body lying under the truck between the front and rear wheels.

Three witnesses to the accident were produced by plaintiff — Danforth and Findlay, who sat in Eaton’s car at the curb, and Price, the driver of defendant’s truck; the latter called for examination under the statute relative to calling opposing parties or their agents as witnesses. Defendant swore no witnesses, but moved for a directed verdict at the close of plaintiff’s evidence, on the ground that it failed to make a prima facie case, but disclosed that the accident was imputable to deceased’s own negligence, and on denial of said motion rested its case. A motion for a new trial was subsequently made on the grounds previously urged for a directed verdict, and for the further reason that the verdict was against the weight of evidence and excessive.

At the time of the accident Eaton was 42 years of age, a married man residing with his wife and family in Detroit, where he had lived about 19 years, and was earning $8,500 per year as manager of advertising for the J. L. Hudson Company. While defendant’s chief contention is that no actionable negligence was proven and a verdict should have been directed in its favor, error is also assigned on the ground that the verdict is excessive, and that question is submitted for the judgment of the court in defendant’s brief.

In view of the evidence as to deceased’s business ability and earning capacity, expectancy of life which, by the tables of mortality, would be 26.72 years, contributions to his family and manner of living, we are unable to say, as a matter of law, that the conclusions of the jury in that particular should be disturbed.

Defendant’s various assignments of error, which include rulings on its several objections, motions, and requests to charge, are argued under four headings, as follows:

1. Question of negligence on the part of the defendant company.

2. Contributory negligence of decedent, Mr. Eaton.

3. The question of the city traffic ordinance.

4. Refusal of the court to grant a new trial.

Touching the matter of pleading, it is urged for defendant that a general averment of lack of vigilance or want of care, without specifying and proving in what particular, amounts to nothing, and the only items of negligence “moré or less clearly alleged” in plaintiff’s declaration, with sufficient particularity to authorize sustaining proof are, that the truck was out of repair (especially its brakes), its driver was incompetent, did not sound his horn or give other signals, did not observe the Detroit traffic ordinance, and was guilty of wanton neglect. Reviewing the record as to these averments it is contended that every specific item of alleged negligence is eliminated, and there is nothing left under plaintiff’s pleadings upon which to base any general claim of negligence.

The pertinent portions of the traffic ordinance set out in plaintiff’s declaration require vehicles to be “driven in a careful manner with due regard for the safety and convenience of pedestrians and other vehicles,” that automobiles be provided with adequate brakes, horns, etc., and that some plainly visible or audible signal be given on approaching pedestrians, etc. Independent of the circumstances of the accident we find no testimony to support the charge that the driver was incompetent, and there is no evidence that the truck was out of repair.

In addition to the particularized items of negligence referred to, there also appears in plaintiff’s somewhat lengthy declaration, with sufficient allegations of absence of negligence on the part of deceased and duty of defendant, the charges made with varying repetitions that defendant did not—

“use due,- proper, and reasonable caution and judgment in running, operating, and propelling said auto truck or motor vehicle, * * * and when coming out of said dark passageway onto and across said public sidewalk, approach, and highway,, and when approaching plaintiff’s intestate * * * did not then and there have said auto truck or motor vehicle under full and complete control, and did not then and there run said auto truck or motor vehicle so as to avoid striking and injuring plaintiff’s intestate, and did not then and there slacken the speed of said auto truck or motor vehicle when approaching plaintiff’s intestate and others lawfully upon said highway, * * * did not make sure that said movement could be made with safety to plaintiff’s intestate, * * * and did not then and there keep a careful and proper lookout ahead so as to avoid striking and running into plaintiff’s intestate; * * * and when said defendant, its servants, * * * saw plaintiff’s said intestate upon said Beaufait avenue and the approach and sidewalk thereon, and when they knew and saw and had reason to believe that plaintiff’s said intestate did not see and was not aware of the approach of said auto truck or motor vehicle and of the impending and imminent danger arising from its approach did not immediately and effectively give a warning or signal, * * * but on the contrary, after discovering and seeing plaintiff’s, said intestate, propelled and operated said auto truck or motor vehicle in so grossly negligent, careless, wanton, and wilful a manner when they knew and saw and had reason to believe that plaintiff’s said intestate did not see and was. not aware of the approach of said auto truck or motor vehicle, * * * and in a heedless manner, and not regarding the fact that such intestate did not see or observe the approach of said auto truck or motor vehicle, and well knowing and seeing that said intestate had not been warned of the approach of said auto truck or motor vehicle and .that he was not aware of its approach, and that he was not aware of the impending and imminent danger * * * ran into and upon plaintiff’s said intestate inflicting the injuries herein complained of.”

We think the declaration sufficiently states a common-law action of negligence, and contains sufficient matter to apprise defendant, beyond the five items particularly pointed out, of the claim that its agent negligently managed and operated the machine under the circumstances alleged, when driving where and as he did at that particular time. Post v. Express Co., 76 Mich. 574 (48 N. W. 636); O’Donnell v. Lange, 162 Mich. 654 (127 N. W. 691, Am. & Eng. Ann. Cas. 1912A, 847); Kessler v. Leeds, 51 Ind. 212; and Dougherty v. Davis, 51 Pa. Super. Ct. 229.

Counsel for both parties devote considerable space in their briefs to the question of whether the driver of the truck blew his horn. He testified that he did so two or three times, while the other witnesses testified they did not hear it. Plaintiff’s counsel claimed Price testified at the coroner’s inquest that he did not sound his horn, and when, after he had denied so testifying, counsel sought to prove the fact, an objection to such testimony was sustained. Plaintiff is not in a position to avail himself of any error in this ruling, and under the present condition of this record it cannot be said there is legal testimony sustaining his allegation that no signal was given. Stewart v. Railroad Co., 119 Mich. 91 (77 N. W. 643); Britton v. Railroad Co., 122 Mich. 359 (81 N. W. 253); Bond v. Railway Co., 128 Mich. 577 (87 N. W. 755). But conceding that Price did sound his horn, that fact in itself would not necessarily exculpate him from negligence if it was apparent to him as he approached Eaton in the driveway ahead that he did not hear or notice the warning and was unconscious of the approaching truck. Price himself testifies:

“His back was towards me and he did not look around and see me. He did not look around any of the time when he was walking across the roadway. * * * Eaton did not pay any attention to the blowing of the horn.”

The evidence is strong in this case that Eaton was unaware of the approach of this truck and his danger until it was too late for him to avoid the injury, and the situation was such that Price knew of that condition.

“Irrespective of the question of plaintiff’s duty to be upon the lookout for his own safety, there are occasions when he is, in point of fact, ignorant of approaching danger. Under such circumstances, if the operator has had time to realize, or if he had kept a proper lookout, should have realized, that the other was in peril or at a disadvantage, ‘he must exercise increased exertion to avoid’ an accident.” Babbitt on Motor Vehicles (1911), § 964a.

The evidence in this case plainly presents an issue of fact for the jury upon that proposition. The account of the accident by the various witnesses, detailing surrounding circumstances, sequence of events and the simultaneous acts of Price and Eaton, naturally bring the questions of negligence and contributory negligence together for consideration. These the court can only pass upon to the extent of determining whether conflicting testimony makes them issues of fact for a jury.

Eaton was run over in the street where he had a right to be, a pedestrian practically on the sidewalk and on a part of the street which, but for a driveway into private property, was a safety zone from vehicles. Price was driving from private property through a covered passageway across the sidewalk to get out upon the street. He had an equal right upon the street, but was riding upon.and driving a heavy, powerful auto truck from which, so far as physical danger to himself was involved, he could contemplate with complacency the ordinary hazards of the street, even including the common automobile. Though comparatively safe himself the serious responsibility and duty rested upon him, according to the size, character, power, and manner of movement of the vehicle he was driving to operate it with commensurate vigilance, and use every reasonable precaution to avoid causing injury — not to simply take chances on what others might do to avoid him.

Touching the question of Eaton’s contributory negligence, it appears he was not crossing a public street, but was upon one inside its curb line, crossing a private driveway which led into the street, and was on or near the sidewalk, a portion of the street especially set aside for pedestrians. It was of course his duty to exercise such care and caution as ordinarily prudent persons would under like circumstances. He was going diagonally away from the building through which this driveway ran in a straight line for about 40 feet and certainly not obliged as a matter of law when out on the street to look back to see whether he was in danger of being run over by a conveyance from behind. 2 Elliott on Roads and Streets (3d Ed.), § 1088; Hennessey v. Taylor, 189 Mass. 583 (76 N. E. 224, 3 L. R. A. [N. S.] 345, 4 Am. & Eng. Ann. Cas. 396); Gerhard v. Motor Co., 155 Mich. 618 (119 N. W. 904, 20 L. R. A. [N. S.] 232). Under the circumstances of this case his contributory negligence is narrowed down to the question of whether, while on his way across the driveway, he immediately turned back and suddenly stepped in front of the on-coming truck when it was so near him that the driver, exercising ordinary vigilance on his part, was unable to stop or turn aside in time to avoid injuring him. If this was shown without dispute it would preclude recovery, but the testimony is in conflict upon that issue. The three witnesses agree that when the watchman spoke to Eaton he checked his progress and turned, but they do not agree that he stepped back in front of the approaching truck. Price testified that Eaton was over to one side, and if he had stood there the truck would have passed him all right, but says, “He kind of hollered, and then turned round, backed into me;” he also says that Eaton started to walk back in the direction of the office from which he had come and “when he turned round he turned right round in front of the wheel. He. had both legs between the two wheels;” while Dan-forth and Findlay testify that just as he turned the truck was right upon him, and the left front wheel instantly struck him before he had time to avoid it. Of his stepping backward, as asserted by Price, Danforth testified that as he turned around the front wheel caught his leg, and while facing the radiator as the truck came upon him he went three or four steps backward, “with the machine running him down,” trying to grab something and “sliding down” until the truck ran over him, after which it stopped with its front wheels at the curb. The trial court, in sustaining an objection by defendant, refused to permit plaintiff to go into the question of discovered or subsequent negligence (which the circumstances of this case seem to suggest, Richter v. Harper, 95 Mich. 221-225 [54 N. W. 768]), and squarely charged the jury:

“In order to hold the defendant liable you must not only find that the defendant was guilty of negligence, but you must also find the affirmative fact that plaintiff’s intestate was free from contributory negligence.”

We think the question of deceased’s conduct in the emergency which then unexpectedly confronted him was for the jury.

As to defendant’s negligence, there is evidence in the case that deceased was nearly across the driveway when he stopped, leaving ample room for Price to have passed him on the right, that he did not step back in front of the truck which was running directly towards him when he stopped; that Price saw his movements and the impending danger in ample time to have stopped the truck before reaching him at the speed it was running, and by the exercise of reasonable care and promptness could have avoided the accident. Price, Danforth, and Findlay all testify to familiarity with this make of Sampson truck, and state that upon the slight incline from the building to the street, with the ground dry as it then was and no danger of skidding, it could easily have been stopped in from one to two feet when running at four miles an hour. Price testified that when he saw Eaton about a length and a half of the truck ahead of him, with his back turned toward the truck' and not looking around or apparently noticing his signal, he applied the service brake with his foot and slackened speed, which was then only about 4 miles an hour, until the truck was just crawling along 2 or 3 miles an hour when he reached the gate, and on coming out to the inner edge of the sidewalk, which was 4*/2 feet from the building, he put on the service and emergency brakes with full force as Eaton stopped and turned, and kept them on full 'force until the truck stopped at the pavement. The distance from where he says he applied these brakes, and resorted to every expedient for stopping, to where the truck actually stopped is about 17y% feet. He further states that at the time he discovered the emergency and attempted to stop, Eaton was 5 or 6 feet in front of his own automobile, which was down upon the paved way outside of the street curb — also that he was about 2 ^ feet from the outer edge of the sidewalk when the machine first hit him. The driveway curved out from the sidewalk to over 40 feet at the street curb, and Price locates Eaton, as he turned, 5 or 6 feet in front of his own automobile which was north of the entrance to the driveway. There was abundant evidence in the case tending to show room in the driveway for Price to divert the truck to the right of where Eaton was struck, and thus have avoided him. A careful examination of this testimony as a whole well satisfies us that it was sufficiently contradictory as to Price’s negligence to render it a question of fact to be determined by a jury rather than one of law for the court. Though naturally differing in detail of circumstances, the following automobile accident cases which were held properly left to the jury on the questions of negligence of the respective parties are, with the authorities there cited, in may respects persuasively analogous to the instant case: Diamond v. Cowles, 174 Fed. 571 (98 C. C. A. 417); Arseneau v. Sweet, 106 Minn. 257 (119 N. W. 46) ; Quellette v. Motor & Machine Works, 157 Wis. 531 (147 N. W. 1014, 52 L. R. A. [N. S.] 299); Domke v. Gunning, 62 Wash. 629 (114 Pac. 436); Bongner v. Zeigenhein, 165 Mo. App. 328 (147 S. W. 182); Smith v. Coon, 89 Neb. 776 (132 N. W. 535); Baker v. Close, 204 N. Y. 92 (97 N. E. 501), reported in 38 L. R. A. (N. S.) 487, with extensive notes; Schock v. Cooling, 175 Mich. 313 (141 N. W. 675).

We have examined with care defendant’s numerous assignments of error launched against the court’s charge. The charge is somewhat lengthy, covering nearly seven pages of the printed record and goes quite fully into the various phases of the case suggested by plaintiff’s 37 requests to charge and defendant’s 13. The court extracted from those requests, in the same or similar language, the greater part of the charge which, considered as a whole, we think fully and fairly stated to the jury the questions involved and the principles of law necessary for an understanding of their duty in deciding the issues of fact submitted to them.

We find no reversible error in the case, and the judgment is therefore affirmed.

Stone, C. J., and Kuhn, Ostrander, Bird, Moore, Brooke, and Person, JJ., concurred.


text:
    SWITZER v. ANN ARBOR RAILROAD CO.
    Railroads — Crossings—Planking—Negligence.
    Where defendant operated gasoline motor ears on its railroad for the convenience of local traffic, and provided stations at highway crossings at which passengers could wait for cars that stopped on signal, and it appeared that plaintiff and her companion, in the daytime, came to a highway crossing to take a car and plaintiff attempted to cross the track to the side from which they hoarded the car, and in doing so stepped in the crevice between planks and' rail, which was of the usual width of SV2 inches, and of a depth of 2% to 4 inches, caught her foot and fell so that she wrenched and injured her knee, she was guilty of contributory negligence, under proofs showing that she was familiar with the station and crossing, which she had used frequently, and plaintiff was chargeable with such knowledge of the ordinary conditions and dangers there as were open to observation. And the failure of defendant railroad corporation to provide suitable and proper apparatus for signaling its cars was not the proximate cause of the injury to plaintiff, who left the matter of signaling to the person who accompanied her, and was proceeding to the point at which passengers, boarded the motor cars, without attempting, herself, to, give.the signal.
    Error to Livingston; Miner, J.
    Submitted October 13, 1915.
    (Docket No. 79.)
    Decided January 3, 1916.
    Case by Hazel Switzer against the Ann Arbor Railroad Company for personal injuries. Judgment for plaintiff. Defendant brings error.
    Reversed; new trial denied.

      Gustavus Ohlinger and Francis J. Shields (Alex L. Smith, of counsel), for appellant.

      Louis E. Hoivlett, for appellee.
   Steere, J.

Plaintiff recovered a judgment against defendant in the circuit court of Livingston county for damages resulting from an injury which she sustained on November 20, 1912, in crossing defendant’s track on a highway at or near a flag stop or station, called Brooks, south of the city of Howell in the township of Hamburg, in said county. At this point defendant’s track runs north and south with a slight trend to the northeast and southwest and is crossed by an east and west highway tending slightly northwest and southeast. The railway track is absolutely straight from this crossing for a considerable but unimportant distance south and for some 12 or 15 rods to the north where it curves slightly to the west and runs thence due north about three-fourths of a mile. In addition to its regular locomotive-drawn train service defendant ran two gasoline motor cars over its road daily each way carrying passengers and express, and this crossing was made a signal stopping place, or flag station, •.for that service; a sign marked “Brooks” was put up «on a post by the side of the highway near defendant’s track. This was in 1910, since which time gasoline motor cars stopped there when signaled. Otherwise it was not known or recognized as either a regular or flag station, and no other trains or cars ever stopped there except on a «rare occasion when a motor car was disabled and steam-drawn service temporarily put in its place. No tickets were sold at Brooks, no employees of defendant were stationed there, and no cars stopped there unless some one was waiting and signaled, or passengers on board gave notice of their desire to get off. The only convenience for patrons provided by defendant was a platform, or leveled place four inches high, located on the west side of the track within the highway limits, and south of the roadway or traveled portion. This platform was 15 feet long, north and south, and six feet wide, east and west, made by placing four timbers in a parallelogram and filling the inclosure with cinders/ From its east edge to the west rail of the,track was 2 feet 10 inches. Back of this platform, however, at a distance of about 11 feet from it, a small shelter house or waiting place with board roof had been constructed by persons resident in that vicinity.

Defendant’s track at this point runs between two' rather low hills,' the land on its west beginning to. rise from near the right of way, while on the east side a level marsh extends for some 20 feet upon which the traveled portion of the highway is raised over 4 feet,, by a grade or fill, to where rising ground is reached. The improved portion of the highway is about 15 feet wide where it crosses defendant’s track, and, as required by statute, defendant had constructed at this intersection a crossing for the passage of teams by fitting down seven 3-inch planks about 16 feet long between and on each side of the rails of its track, running north and south parallel with the rails. Five of these are between the rails, and two respectively on the outside of each rail. On the 'inside of the rails a strip or space was left 3% inches wide and between. 2% and 4 inches deep, such construction being necessary to allow the passage of the car wheel flanges. The width of a car wheel from the inside of the flange to the outside of the wheel is 7 inches, and the flange has a width of an inch and a half; the distance from the inside edge of the flange to the inside edge of the rail on which the wheel runs being 2% inches. From the south end of this plank crossing of the highway to the north edge of the platform, provided for convenience and safety in boarding or leaving a car, is 12 feet 5-inches.

Plaintiff resided with her parents in Hamburg township about a half mile east of this crossing. She was familiar with conditions at the crossing, having been in the habit of taking the.gasoline motor cars at Brooks from the time they began running, and had ridden upon them to and from Ann Arbor, where she went to take music lessons, almost weekly for nearly two years. On the day in question she walked over from her home in company with an acquaintance named John Martin to take the south-bound motor car due to pass Brooks about 1 o’clock. The weather was rainy and the ground slippery. When they approached the planking Martin stopped on the east side of the track, from where both testify they usually flagged a car approaching from the north because they could see it and the operator of the car see them for a greater distance. She states that she does not remember crossing to the west side before the accident, but they were at the crossing about a minute before it happened. She left him standing on the- east side watching for the car and started on toward the west side of the track walking in about the center of the road. In going over the planked crossing of the highway she caught her foot between the planking and rail, falling over in such a manner as to wrench her knee. She describes the accident in part as follows:

“My right foot slipped in between the rai-1 and plank, throwing me to the ground towards the west. * * * The hole is from 3 to 3% inches wide and about 4 inches deep. I had on a high-top shoe. My toe was pointed to the south. I was thrown to the west across the track and fell down. I could not get up alone and Mr. Martin assisted me. I don’t know how long it took us to get my foot out. It seemed a long time. We finally succeeded and then the car came along and we boarded it and went to Ann Arbor. My knee pained me that night.”

Both she and Martin identify the place where her foot was caught, which she called a “hole,” as the space left on the inner side of the east rail for the car wheel flanges to run, and which they state was about the same width and depth the whole length of the planking.

When the car arrived, about 15 minutes after they reached the crossing, Martin stopped it by signaling, he did not remember from which side, and, boarding it, they went to Ann Arbor. It developed later that the wrench had injured her knee joint quite seriously, requiring medical attendance and the use of a plaster of paris cast for a time. The nature and extent of the injury is not in controversy.

Plaintiff’s grounds of negligence, as stated in her declaration, are:

“That the defendant utterly failed to perform its duty in that at its said station of Brooks on, to wit, the said 20th day of November, 1912, it failed to keep the premises used by its patrons for the purpose of observing the approach of its cars from the north and signaling the same to stop and enter the same in a reasonably safe condition, but permitted holes and excavations to exist therein; that it also failed to perform its duty in that it failed to provide suitable and proper apparatus, methods, and appliances to be used by its patrons at said station of Brooks to signal its cars approaching said station to stop. And plaintiff avers that it further failed in its duty in that it permitted a large hole and crevice to exist between the planking which was laid between the rails at said station of Brooks and the easterly rail at the place which was used by its patrons for the purpose of observing the approach of its cars from the north and signaling them to stop.”

The charge of negligence in failing to keep the premises used by its patrons for the purpose of observing the approach of cars from the north and signaling them in safe condition, is based upon the claim that topographical conditions were such that it was hecessary for those desiring to signal cars from the north to do so from the east side of the track, where they had a further view in that direction along the track and could see approaching cars sooner than from the west side. Plaintiff, her father, and Martin testified, under objection, that they almost always signaled the cars from the east side, finding it better and more convenient, though all admitted that they had signaled cars from the west side which stopped when they did so, but claimed that when flagged from the west they were apt to stop beyond the platform, rendering it necessary to follow down the track in order to get upon them.

Verified photographs of the location, offered in evidence, while showing a rise of ground on each side of defendant’s track, disclose no sharp or high hills obstructing the view for a reasonable distance to the north, and the photographer who took these pictures testified that by actual measurement a man could be seen approaching on. the track from the north 573 feet from a point opposite the center of the platform at the crossing, and that the distance from the platform to the north where all of a car approaching could be seen was. 375 feet, while the top of a car approaching from that direction could be seen 814 feet. The accuracy of these measurements and the correctness of the photographs offered in evidence in connection with them were not disputed except by general assertions as to the difficulty in signaling a car from the west side in time for it to stop at the platform.

Defendant timely interposed a motion and requests for a directed verdict on the ground that no actionable negligence was shown; that the accident occurred in the traveled portion of a highway, not at the place of boarding or leaving its cars, and, if imputable to the negligence of any one, it was caused by plaintiff’s own negligence. These objections were overruled and the case submitted to the jury, the court charging, among other things, as follows:

“The first question for you to determine is whether the defendant was guilty of negligence in fixing these planks as it did and permitting them to remain there on this day in question. Now, the statute of this State reads as follows:

«* * * ‘Shall construct suitable road and street crossings for the passage of teams by fitting down planks between and on each side of the passage and on each side of the rails of such road, the top of which shall be at least one-half inch higher than the top of the rails of such road.’
“The reason I call your attention to this is simply for the purpose of showing that it was the duty of the railroad company to place those planks there between their rails. There can’t be any negligence claimed because they put them there. The only question for you to determine upon that point is whether in placing them there, or whether at this time, on the 20th day of November, 1912, they were in such a position that it was negligence upon the part of the company in permitting them to remain that way. * * * It is the law of this State that it is the duty of the company, that is, the railroad company, to provide a reasonably safe place for the ingress and egress for its station, that is, a .place to go to its station — near its station. That means that part of the premises over which they have control. It does not mean outside, for instance a highway outside, but it means that portion- which the company itself has control of. So in this case, gentlemen, did the company on this day in question provide an egress, a place to get there, that was reasonably safe, that was a reasonably safe place to its station. * * * The defendant in building these planks, would have a right to build them far enough away so it would not interfere with its track, that is, its wheels running over the track — the rails.”

It was shown that a space of 3% inches between the inside rails and the planking was a standard and recognized essential for the flange of car wheels to run freely and avoid derailment. Plaintiff’s testimony fails to point out faulty construction, want of repair or how this crossing could be more safely built to serve the double use for which it was intended. She was injured at this crossing while walking along the central traveled portion of the highway over which she had passed many times and where, as required by statute, defendant had planked the crossing solely for the purpose of making it suitable and convenient for use as a public thoroughfare. This was first done when defendant built its road, the highway being then in existence, and so long before any stops were made by these cars at Brooks that the planking had been renewed shortly before the motor cars were put into operation. It bore no relation to the so-called station grounds, or the stopping point later selected and prepared for receiving and discharging passengers except its proximity as a part of a passing roadway devoted to public travel.

These single gasoline motor cars, though running on tracks of a regular steam power railroad, were in service and operation analogous to interurban trolley cars, supplementing regular steam service, stopping on signals at points not recognized or accommodated by steam-drawn trains. As applied to such service many of the requirements imposed upon railroads at regular stations are not appropriate or imperative, and the chief duty at country crossings like the one” in question is to provide passengers with a safe place to get upon or off from the car, with reasonably safe access to and from the regularly traveled portion of the highway or some other place of safety. Passengers having alighted in safety from such cars in a public highway at a point from which they can safely depart where and as they please, thereafter cease to be passengers and become merely travelers upon the highway.

A fatal infirmity as ground of recovery to plaintiff’s claim in her declaration that defendant “failed to provide suitable and proper apparatus, methods, and appliances” for signaling its cars to stop, or a safe place from which to signal, lies in the fact that such alleged delinquency, whatever it was, did not cause or contribute to her injury, for her own testimony discloses that she had not signaled, was not trying to and did not intend to do so, but had just arrived at the crossing from her home, located to the east, a moment before the accident, and leaving Martin to watch for and signal the car at what was thought the most advantageous point for that purpose, she was walking on to the place provided for taking the car when it came. The car was expected to, and did, stop without any action or efforts on her part to signal it. It is elementary that, even though proven, negligence which does not cause or contribute to the injury complained of affords no ground of recovery.

Irrespective of defendant’s negligence, plaintiff has failed to show herself free from contributory negligence, which is a prerequisite to recovery. The accident occurred in broad, daylight, shortly after noon, when she was waiting for the car, with abundant time to notice conditions under foot and watch where she stepped. It was wet and slippery walking and she had observed that fact. She had been traveling almost weekly over this crossing for nearly two years and had as good opportunity to know of its condition, and the opening between the rails and planking, as defendant or its employees. Whatever' dangers existed were plainly open to view. If she had looked she must have seen and could have easily avoided them. She does not even testify she was unaware of the existence of this space in which her foot was caught. She is held to have seen what she actually could have readily seen had she looked. Her familiarity with the location makes this an even stronger case of contributory negligence than Whitmore v. Railway, 185 Mich. 46 (151 N. W. 651), wherein it was held plaintiffs contributory negligence precluded recovery.

The judgment is therefore reversed, without a new trial.

Stone, C. J., and Kuhn, Ostrander, Bird, Moore, Brooke, and Person, JJ., concurred.


text:
    LAWRENCE v. WASHINGTON-DETROIT THEATRE CO.
    1. Contracts — Corporations.
    An employee of defendant corporation, having charge of hiring theatrical talent, approached plaintiff and proposed that he accept the office of manager of defendant’s theatre. He proposed a three-year contract, but the defendant’s board of directors declined to bind the corporation for more than a year and a contract was authorized at $100 per week. Two o.f the directors informed him that the board voted to employ him on the terms which he proposed. He took charge of the theatre and drew a salary of $100 a week, but, the season proving unprofitable, one of the directors broached the subject of a reduction, and, after some negotiations, plaintiff offered to remain on the terms' set forth in a blank form of contract, introduced in evidence. He was advised by two members of the board, . at a later time, that it had authorized the entering into a contract according to the terms contained in the printed form. It was recorded in the minutes of the board meeting that plaintiff be engaged at a salary of $50 a week, “and a'percentage of the net profits to be determined,” plaintiff to be subject to the orders of the board. No reference to the printed contract appeared in the record. And one of the members of the hoard assured the others that plaintiff would resign on two weeks’ notice. No writing was ever executed and plaintiff was merely assured over the telephone that the board of directors had authorized! the execution of a contract according to the form referred to, but that' it must be brought before the board for execution. Without further steps towards the completion of any written instrument he received the decreased salary and later was discharged on two weeks’ notice because of friction between him and other officials over whom he claimed to. exercise authority. Held, that the form of contract proposed by plaintiff was not adopted or ratified by the board or officers of -the defendant corporation and that the minds of the parties did not meet.
    2. Same — Authority to Contract — Board of Directors.
    Individual members of the corporate board of directors or officers of the company cannot bind it by any unauthorized agreement. The board of directors, not the stockholders, president or other officers, is the original supreme power in corporations to enter into contracts.
    S. Same — Ratification.
    And mere knowledge of the facts, or unauthorized assurances by individual members or officers, does not operate: to bind the corporation notwithstanding affirmative action. of the board, by resolution, to the contrary.
    Error to Wayne; Wiest, J., presiding.
    Submitted October 13, 1915.
    (Docket No. 63.)
    Decided January 3, 1916.
    Assumpsit by Walter N. Lawrence against the Washington-Detroit Theatre Company for damages for the breach of a contract of hiring. Judgment for defendant on a verdict directed by the court. Plaintiff brings error.
    Affirmed.

      Robert M. Brownson and Roy Herald, for appellant.

      Stellwagen & MaeKay (James O. Murfin, of counsel), for appellee.
   Steere, J.

Defendant is a domestic corporation, owning and operating a theatre in the city of Detroit. Plaintiff was in its employ, as theatrical manager during part of the summer and fall of 1913. He was relieved from such employment in November, 1913, against his will, and, as he claims, in violation of the contract under which he was employed. This action was brought to recover damages for defendant’s breach «of his contract of hiring in prematurely discharging him.

After the parties had introduced their testimony and rested, the trial court withdrew the case from consideration by the jury, and granted defendant’s motion for a directed verdict in its favor on the ground that plaintiff’s testimony, considered in its most favorable light, failed to establish prima facie that the contract set out in his declaration and relied upon for recovery was ever agreed upon or entered into between the parties.

Counsel for plaintiff say in their brief:

■“The disputed fact in the case, which should have Peen submitted to the jury under proper instructions, is: Ts or is not Exhibit 1 the contract which was entered into between the plaintiff and defendant?’ ”

Counsel for defendant say in their brief:

“There is but one question presented for consideration: ‘Did the plaintiff prove with the corporate defendant the contract he sued upon?’ ”

Exhibit 1, set out at length in plaintiff’s declaration, is preceded by the allegation that the parties entered into an agreement on September 29, 1913, “the terms, conditions, covenants and grounds .stipulated in said contract to be kept and performed by said plaintiff and the said defendant being in words and figures as follows, to wit.” This document was eoncededly never signed or executed by the parties. It was introduced in evidence, and, as printed in the record, is a blank form of contract, with spaces left for the date, witnesses, signature, and seal of a corporation and signatures of its vice president and secretary, by whom it was apparently designed to be executed. It is a somewhat formal document, in legal phraseology, with explanatory recitals and paragraphed provisions stating in detail the respective undertakings and obligations of the contracting parties. Stated in outline its import is that the Washington-Detroit Theatre Company, as party of the first part, and Walter N. Lawrence, as party of the second part, contract and agree each with the other that the theatre company employ Lawrence as manager of its theatre for the term of one year from and after the 29th of September, 1913, at a salary of $50 per week, and in addition thereto 10 per cent, of its net profits up to $25,-000, with 5 per cent, of the net profits in excess of $25,000, he to have full authority as manager of said theatre, with power to decide what plays shall be produced, and control over the house employees and players, as well as full power and authority over William Morris, the booking representative of the theatre company, in the direction of what productions shall be given, Lawrence on his part obligating himself to devote his full time and ability to managing the theatre and promoting the interests of his employer, with whose board of directors he is to confer weekly, and, together with them, discuss and determine “the policy of the house.”

Plaintiff, the only witness sworn in support of his claim, testified in part that he was by profession a “theatrical producing manager” of large experience in New York theatres, running through many years, an'd that he went from New York, where he was previously located, to Detroit, with a Mr. Hackett, also a theatrical producing manager, by whom he was employed to assist at the opening of defendant’s theatre, and at the request of Mr. William Morris, defendant’s New York booking agent, who had first engaged Mr. Hackett, he “looked after the front of the house” during the opening events, he being the person in attendance most familiar with the proper operation of the theatre; that while he was yet in Detroit Morris asked hum, at the request of one of defendant’s directors, if he would entertain a proposition to, remain in Detroit as manager of its so-called Washington Theatre; and, desiring to be permanently located, he replied that he would accept a proposition if he could secure a satisfactory three-year contract of employment equal to what he was then earning with Mr. Hackett, which was $110 a week, with 10 per cent, profits of the business, but he was informed that defendant’s directors in conference had decided they were unwilling to employ him for longer than one year or to pay a salary of more thari $100 a week, and plaintiff finally consented that he would act as manager of the Washington Theatre under a contract of employment for one year at a salary of $100 per week; that defendant’s board of directors held a meeting, and he was informed by two of its members they had voted to employ him according to the terms of the contract he had proposed; that he thereupon entered into defendant’s employ and took charge as manager of its theatre, continuing to operate it for defendant under such contract for the period of ten weeks, receiving a salary of $100 per week, but the enterprise did not prove profitable, for the reason that William Morris, defendant’s New York booking agent, who had a contract with full authority to determine the plays and engage the players, had contracted with high-class artists and stars for considerable periods of time in advance, at high salaries ranging from $1,000 to $1,500 per week, and a member of defendant’s board of directors, commented to him upon the fact that the theatre was losing money, asking during the discussion if he would submit to a reduction of his salary to $50 per week, which plaintiff refused to do, and, not caring to be longer associated with such vacillating persons, asked to be relieved in two weeks’ time; that he was then asked by certain members of defendant’s board of directors, if he thought he could make good provided they gave him a salary of $50 per week and a percentage of the net profits; whereupon plaintiff stated on what terms he would remain, and discussed the matter with Mr. McKay, defendant’s vice president, who tried to induce him to modify his proposal, and he finally agreed to accept the terms stated in exhibit 1, which McKay said he would put in “memorandum form,” and plaintiff suggested exchange of a letter embodying the facts “if we come to an agreement,” but McKay said, “No; if we come to an agreement, I am going to draw you a contract and protect you;” that on the next day McKay sent for him and handed him Exhibit 1, asking if it specified the terms as talked over between them, and, on being assured that it did, said, “Mr. Lawrence, this matter has got to come up before the board of directors to authorize its officers to do anything of that kind that on September 27th McKay and another member of the board informed plaintiff they had just come from a meeting of the board where the memorandum of the proposed contract was brought up and the officers were authorized to make the contract; that the vice president then told plaintiff he would send for him as soon as they were ready to sign the agreement, saying:

“I am going to the hospital tomorrow, and when I ■ return I will send for you, and then we will come to an understanding. * * * He asked me to wait until he came back and he would send for me and close the matter up.”

In substantiation of the contract as alleged in his declaration plaintiff introduced in evidence the recr ord of a meeting of defendant’s board of directors under date of October 2,1913. The minutes of that meeting disclose a then difference of opinion amongst members of the board as to the advisability of employing plaintiff and an attempt to delay action, but, on assurance of a member named Reid that he would bring to the board plaintiff’s resignation to be effective in two weeks from the time when the board determined his services were not entirely satisfactory, the following resolution was adopted:

“That W. N. Lawrence be employed as manager of the Washington Theatre for a period of one year at a salary of fifty dollars per week, and a percentage of the net profits, the percentage to be determined, that said W. N. Lawrence to be at all times under the direction and control of the board of directors, and that all matters relating to the operation of the theatre to be determined by the board, and that Mr. McKay be requested to draw suitable contract.”

That Reid had ground for such assurances is indicated by plaintiff’s admission on cross-examination that he did tell Mr. Reid on one occasion:

“Any time you personally ask me for my resignation I will give it to you.”

Plaintiff further testified that the contract on which he relied, although previously discussed, was “never consummated until the 6th of October,” at which time he called up Mr. Reid, who, he states, was very kind to him, and to whom he frequently reported concerning the theatre, and asked him why plaintiff had heard nothing further regarding “this proposed new agreement,” whereupon Reid assured him, “as an officer of the corporation,” that the board of directors had authorized the officers to make such a contract, and plaintiff’s services began under it on September 30th, “according to the memorandum of the proposed agreement submitted to Mr. McKay,” after which, on consultation with Mr. Reid, plaintiff remitted from that date on the $100 per week he had previously drawn, and thereafter drew only $50 per week; that some time later plaintiff asked McKay when the contract was to be signed, and he replied that “he had just come back from the hospital; he had so much business to attend to; that he would get the board together and sign it.” He also further stated that after October 6th he considered he had under this contract “absolute power that I had not possessed before,” which he asserted and exercised according to his best judgment and without interference, so far as he knew, until he learned that Mr. Patch, a theatrical man who held .stock in the company and had been elected a director, was engaging actors in New York for the Washington Theatre, which made plaintiff indignant, as his contract gave him the sole right to do so, and he laid the matter before Mr. McKay, who assured him he would see that the contract was carried out to the letter, and said:

“Go back to your Washington Theatre, and until the expiration of your contract kick me out; kick anybody out; no member of the board of directors has any right to come in there if you say ‘No.’ ”

As before noted, plaintiff imputed the financial shortcomings during his management of the theatre to defendant’s booking agent, Morris, who, he said, hired expensive actors for long terms. Morris had a written contract with defendant, which was signed, and which plaintiff testified gave Mr. Morris “absolute control and power” as to this particular in which Patch trespassed upon plaintiff’s prerogative. Asked if Mr. Morris might, if he wanted to, even sign up somebody for $10,000 a week, plaintiff replied:

“He certainly could, and according to that contract, as I read it, the corporation agreed that, if they didn’t take what he wanted, he could enjoin them and make them. I had absolutely nothing to do with it at all.”

This most binding written contract, as construed by plaintiff, antedated the oral one upon which he relies. While in passing upon a directed verdict against him his testimony is to be taken as true so far as possible, this feature of it presents a dilemma which suggests a reason why the subsequent proposed contract with him was not executed. . i

' Without going into the details as to closing incidents of plaintiff’s employment, it is sufficient to state that increasing friction over his claim of authority in connection with what he regarded as unwarranted interference and attempted dictation by defendant’s board and its members culminated during the fore part of November in formal action by the board dispensing with his services after two weeks’ previous notice.

Plaintiff’s position relative to the contract declared upon is thus stated by his counsel:

“It is a contract authorized by the board, and this memorandum contains the terms of it. It is the contract that was operated under.”

While plaintiff testified that members of the board assured him that body had accepted his terms and authorized the contract, the record which he introduces to prove this shows the resolution that he “be employed” did not authorize its executive officers to enter into any such contract as Exhibit 1. If that so-called memorandum was then considered by the board, it was manifestly repudiated and rejected, for it gave plaintiff—

“full power and authority * * * to decide what plays should be produced at said Washington Theatre, and with full authority over the house employees and .players, employed in and about said theatre, and their salaries, * * * full authority to determine what bookings shall be made for said theatre, and * * * full power and authority over William Morris, the booking representative of said party of the first part, as to what productions shall be given.”

It also expressly specified the percentage of profits he was to receive, as before stated; while, to the contrary, the contract authorized by the resolution plaintiff relies upon specifies that the matter of percentage on net profits is “to be determined,” and plaintiff is to be at all times subject to the dictation of the board, under its direction and control, “all matters relating to the operation of the theatre to be determined by the board,” and no. authority is given him over William Morris.

It is elementary that individual members or officers of a corporation cannot bind it by any unauthorized contract they may make in its name.

“All contracts of a corporation are to be made by or under the.direction of its board of directors. • The board of directors make corporate contracts by a' regular vote of the board. * * * And in all cases the board of directors, and not the stockholders, nor the president, secretary, treasurer, or other agent, is the original and supreme power in corporations to make corporate contracts.” 2 Thompson on Corporations, § 1070.

See, also, Hallenbeck v. Casket Co., 117 Mich. 680 (76 N. W. 119).

Plaintiff was distinctly advised by McKay of the application of this fundamental rule to the matter in hand, and admits he knew it was necessary for the board of directors to authorize his contract. He shows that a binding written contract was talked over in their negotiations and contemplated. He suggested an exchange of letters embodying the facts, and McKay insisted that, if an agreement was reached, it should be put in regular contract form. Matters progressed to where this was tentatively done in the form of Exhibit 1, and plaintiff given a copy, being at the same time expressly advised that such contract was not within the scope of powers possessed by agents or officers of defendant, but must go before and be authorized by the board of directors before it could be signed and become effectual. He was wide awake to the importance of this and later insistent upon its being signed.

In directing a verdict for defendant the trial court fully recognized that only plaintiff’s testimony could be considered, and clearly pointed out its infirmities in part as follows:

“But the question here is, assuming that he was so assured by the officers, of the company, or the treasurer and the vice president, whether such officers could bring into being a contract opposed to the resolution of the board of directors. Contract means when the minds of the parties meet. * The plaintiff is one party to this contract and the corporation the other — not the mere officers of the corporation. The affairs of a corporation are governed by the board of directors. They may delegate authority to bind the corporation. * * * Now, I take it the plaintiff contends that, if the directors authorized the officers to enter into a contract with the plaintiff, and such officers informed the plaintiff that the memoranda contract, as prepared, was the contract between the plaintiff and the company, then the minds of the parties met, and a valid parol contract for a year’s services was entered into. That would be true if the resolution offered in evidence by the plaintiff, by the board of directors, did not upon its face limit the power of the officers of the company. The plaintiff, having been paid up to the time of his discharge, cannot recover upon this issue without first showing a valid contract between himself and the company. Upon his own testimony was he hired for a year? He certainly was not employed under his own testimony. Under the terms of this resolution he was not. The contract that he insists upon expressly repudiates this resolution; it is in conflict with it. * * * Here the plaintiff, in order to show a contract, admits that whatever contract he was to have with the company was to be submitted to_ the board of directors, and when he brings in the minutes of the board of directors he affirmatively shows that he never entered into any contract such as the board authorized,” etc.

The principles of ratification by acquiescence and acceptance of benefits contended for by plaintiff are not applicable to the conditions shown in this case". It is undisputed that plaintiff was in defendant’s employ as manager of its. theatre from the time it was opened in July until he was released in November, a period of 16 weeks. Until October 6th his recognized and paid salary was $100 per week. He continued in the same service and capacity four weeks longer, and it is unquestioned that his compensation remained the same until his discharge, provided his contract of hiring was not changed. The court stated in his charge as a conceded fact, without it being questioned by counsel, that he had been paid for all services rendered up to the time of his discharge; his only claim being for the balance, of the year under a new contract. The fact that un-j der the theory of a new contract he did not weekly draw his full pay under the old, of which fact it is not; shown the defendant corporation, as such, was ad-: vised, conferred no benefit upon the corporation or disadvantage to him, if his right -to the $100 per week was not denied. Mere knowledge or unauthorized assurances on the part of individual members or officers of defendant cannot operate to effect a ratification against affirmative action of the board of directors by resolution to the contrary. During the time plaintiff continued in defendant’s employ after October 6th no acquiescing or ratifying conduct of the corporation recognizing a new contract which misled, prejudiced, or damaged him is shown.

The judgment is affirmed.

Stone, C. J., and Kuhn, Ostrander, Bird, Moore, Brooke, and Person, JJ., concurred. '


author: Brooke, J.

text:
    CALLIARI v. FISHER.
    1. Negligence — Proximate Cause — Evidence—Animals.
    Plaintiff and defendant both left their horses unhitched in the street of a village. A paper, or some other object, frightened defendant’s horse, which ran away, frightening plaintiff’s horse that also started to run, and plaintiff jumped on the step of his vehicle, attempted to get into the box, but left his leg protruding; it came in contact with the sleigh of a third person who had turned out to the left, and was on the wrong side, to avoid the runaway. There was proof that defendant’s horse was a known runaway. Plaintiff sustained a fractured tibia. Held, that the leaving of defendant’s horse unhitched was not the proximate cause of the accident, that it was not a result likely to occur or to be foreseen or anticipated that plaintiff should come in contact with the vehicle on the wrong side of the street, or that his foot would protrude from the sleigh and be injured.

    2. .Same.
    A result is the proximate effect of a given cause if the cause produced the consequence without any independent unforeseen cause intervening, but for which the accident
    • or event would not have occurred.
    3. Same — Directing Verdict.
    In an action for negligence for leaving defendant’s horse unhitched', though it was liable to run away, as defendant had notice, the question of negligence was for the jury.
    4. Same — Contributory Negligence.
    And the question of plaintiff’s contributory negligence in also leaving his horse unhitched was one of fact.
    Error to Iron; Flannigan, J.
    Submitted October 10, 1915.
    (Docket No. 36.)
    Decided January 3, 1916.
    Case by Arthur Calliari against Nelson E. Fisher for personal injuries. Judgment for plaintiff. Defendant brings error.
    Reversed; new trial denied.

      I. W. Byers (L. A. Lyon, of counsel), for appellant.

      Bushton & Biléy, for appellee.

      Negligence in leaving horse unhitched in highway is discussed in notes in 10 L. R. A. (N. S.) 845, 20 L. R. A. (N. S.) 958.

   Adams avenue, in the village of Iron River, runs approximately east and west. On the north side of said street, in about the middle of a block, the defendant, at the time of the accident, maintained a grocery store and meat market. Plaintiff at this time was connected with a baking establishment, his duties being to deliver the product of the bakery to customers thereof. The defendant sold goods made by the concern, for which plaintiff’ was employed, and it was the custom for plaintiff to replenish the stock of defendant each day. On February 27, 1912, plaintiff drove the customary vehicle, which was a sleigh with an inclosed top drawn by a two-horse team, up to defendant’s place of business from the west, and stopped near the center of the street. He alighted from the sleigh and took some baked goods into the store. While he was in the store, defendant’s delivery sleigh, which was a bobsleigh with an ordinary box thereon drawn by one horse, was driven up from the west to defendant’s place of business, and between plaintiff’s sleigh and the curbing, so that defendant’s horse would be about opposite the box on plaintiff’s sleigh. Neither the horse driven by the defendant, nor the team driven by the plaintiff, were tied in any manner to a hitching post or weight. While plaintiff, who was standing at the rear of his sleigh, and Fred Beauchamp, who was the driver of defendant’s horse, were talking, something occurred to frighten defendant’s horse, and it started to run. As the horse ran, the sleigh came in contact'with a post, the crash causing the sleigh to be broken apart so that the entire sleigh, with the exception of the front bob, remained where it was. At this, juncture, plaintiffs team, becoming frightened because of the crash, or because one of the horses was struck by the crossbar of the thills attached to the running horse, also started to run, and in an endeavor to stop them plaintiff ran and jumped upon the step of the sleigh, but before* he could get into the inclosure his leg which protruded came in contact with a sleigh driven by one Ross, which had turned out to the left to avoid a collision. As a result plaintiff sustained a fracture of the tibia.

Evidence was introduced on behalf of plaintiff tending to show that defendant’s horse was nervous, vicious, and a notorious runaway. ■ After the accident plaintiff was taken to his home, where he remained for five or six days, when he was taken to the local hospital. At the time of the trial plaintiff had not fully’ recovered, in that he was not able to walk without a slight limp.

At the conclusion of the plaintiff’s case, defendant made a motion for a directed verdict upon three grounds, as follows:

“(1) The undisputed testimony on the part of the plaintiff show’s: That, at the time of the alleged injury, the plaintiff had left his team unhitched and unattended on a public street. That they became frightened and started to run, and while they were running the plaintiff jumped into the side door of a closed sleigh, leaving his foot and a portion of his leg outside of the door of the sleigh, and, his foot and leg coming in contact with another rig, he was injured by the contact. That the negligence of plaintiff in leaving his team unhitched and unattended, under the circumstances disclosed by the testimony on the part of the plaintiff, was the cause of the injury. That it was negligence on the part of the plaintiff to jump into his vehicle at a side door, while his horses were running, and leave his foot and leg extending outside the door ; and that such negligence was the cause of his injuries as alleged in the declaration in this cause.
“(2) That the running of defendant’s horse was not the proximate cause of plaintiff’s injuries. .
“ (3) That the testimony on the part of the plaintiff shows that the plaintiff’s vehicle had a covered or closed top with- side doors; that while plaintiff’s team was running at a rapid gait he ran, jumped into his vehicle at one of the side doors, leaving his foot and a portion of his leg extending outside of the door, and while in this position his foot and leg came in contact with another rig, and he received the injury for which he seeks to recover damages of the defendant; that he ran and jumped into his rig for the sole and only purpose of stopping his runaway team and preventing damage to his team, vehicle, and its contents, and for no other purpose whatever; that by so doing the plaintiff assumed the risk of all injury and damage he might receive, and he cannot recover of the defendant in this cause.”

This motion was denied, and defendant introduced testimony. At the conclusion of the entire case, the motion was renewed for the direction of a verdict, which was again denied. The learned trial judge in-' structed the jury, first, to determine whether defendant in leaving his horse untied and unattended, considering its character, was an act of negligence; that, if they found defendant was not negligent in that particular, plaintiff could not recover. He next charged the jury to determine whether or not, considering the character of plaintiff’s team as shown by the testimony, it was negligence on his part to leave his team untied and unattended. He next required the jury to determine whether plaintiff’s act in attempting to stop his team in the manner in which he did was, under all the circumstances, negligent. In case the jury found the plaintiff was negligent, either in leaving his own team without being fastened or attended, or in attempting to stop them in the manner in which he did, they were instructed he could not recover. The court further charged as follows:

“Now, if you find, first, that the defendant was guilty of negligence, then, before you-will be permitted to render a verdict for the plaintiff, you must take up and dispose of this other question, namely, was the negligence of the defendant the proximate cause of the accident? < In order to say the negligence of the defendant was the proximate cause of the injury to the plaintiff, it must appear that the injury to the plaintiff was the natural and probable consequence of the negligence of the defendant, and that it should have been foreseen by an ordinarily prudent person, and therefore ought to have been foreseen by the defendant, that injury was likely to arise from the negligence of the defendant. If this injury, gentlemen, was caused by any negligence on the part of the driver of the Morrison team, then the defendant would not be liable, although you should say that he was guilty of negligence in not hitching his horse or having a man there in charge of it. If his negligence resulted in his horse .running away, h.e would not be responsible to the plaintiff, if the plaintiff’s injury resulted from the negligence of somebody else. So, if it appears in this case that the driver of the Morrison team was guilty of negligence, and that it was his negligence which caused the injury to the plaintiff, then the verdict must be for the defendant.”

The jury resolved all issues of fact in favor of plaintiff, and returned a verdict in the sum of $2,500. The case is now here for review on writ of error.

Brooke, J.

(after stating the facts). There are several assignments of error based upon the admission or exclusion of testimony, upon the failure of the court to submit special questions preferred by the defendant, and upon alleged erroneous instructions to the jury. The meritorious question, however, presented by the record, is, in our opinion, that raised by the motion for a directed verdict upon the ground that defendant’s negligence, if assumed, w-as not the proximate cause of plaintiff’s injury. In the light of the testimony as to the character of the horse owned by defendant and which was first to start to run away, having become frightened by a bit of paper, we think the assumption of his negligence may well be indulged. In any event, the question was one which, under the testimony, was for the determination of the jury, and their verdict, seems to be fully warranted. It may likewise be said that the question of plaintiff’s negligence, under all the circumstances of the case, either in leaving his own team untied and unattended, or in his attempt to stop them once they started to run away, was also a question of fact for the determination of the jury. But the determination of" these three questions in plaintiff’s favor, and the further determination that Ross, the driver of the rig which actually caused the injury to plaintiff, was himself free from negligence, still leaves open the question of whether defendant’s negligence was the proximate cause of the injury to plaintiff.

What constitutes proximate cause in a given case is frequently a troublesome one, and much discussion of the question appears in the authorities. In the recent case of Stoll v. Laubengayer, 174 Mich. 701 (140 N. W. 532), a collection of the authorities in this State will be found. A still more recent case is Sabela v. Mining Co., 184 Mich. 676 (151 N. W. 599).

The conclusion to be drawn from an éxamination of all the authorities on the' question seems to be that the defendant may not be held liable for his original negligent act unless that act produces the consequences for which recovery is sought, without the intervention of any independent, unforeseen cause, without which' the injuries would not have occurred. If such cause intervenes, it may be said that the wrong of the defendant is too remote to be made the basis of an action. It would seem that the question as to whether the plaintiff himself or third persons were guilty of or free from negligence in their subsequent actions is of no particular importance in determining the question of proximity. Of course, if the jury had determined that the plaintiff in attempting to stop his team acted negligently that would have ended the case. It-is clear that he may have acted prudently, and still his act may have been such an independent and unforeseen cause intervening between the original negligence of the defendant and his injury as to make the original negligence too remote to support an action. That, we think, is the situation in this case. We do not think it can reasonably be said that the defendant in negligently permitting his horse to remain unsecured and unattended could or should have contemplated the possibility that the plaintiff would make the attempt he did to stop his own team while running away, and that in making said attempt he would fortuitously have permitted one of his legs to protrude be-, yond the opening in his sleigh, thus coming into contact with the sleigh driven by a third person (we will assume) with due care upon the left or wrong side of the street.

We are of opinion that the facts in this case bring-it squarely within the reasoning adopted by the court-in Stoll v. Laubengayer, supra.

For this reason the judgment must be reversed, and there will be no new trial.

Stone, C. J., and Kuhn, Ostrander, Bird, Moore, Steere, and Person, JJ., concurred.