text:
    POOLE v. UNION TRUST CO.
    1. Wiixs — Annuity—Residuary Legacy — Estates of Decedents.
    Where the last will of a testatrix provided for an annuity of $10,000 to her husband and for a residuary legacy of half the remaining estate to her son, and the other half to be held in trust for the benefit of her daughter, with power to control and sell, and to reinvest the proceeds, the income derived from the trust fund to be paid to said daughter, and it appéared that the husband renounced the provision so made for him and elected under the laws of a foreign State to take a third share in the'real property of decedent, and there was more than enough cash to pay the debts and expenses of administration, without affecting the income of the trust estate, the daughter was entitled, as against the remaindermen, to one-half of the entire royalties under mining leases forming a part of the residuary estate, and which should be treated as income rather than a part of the corpus of the estate, in order to carry out the apparent intent of the testator to treat daughter and son equally.
    2. Same — Life Tenant — Mines.
    Where mines have been opened or leases executed before the life estate commenced, the owner of the life interest may, in the absence of restraining words, work the mines even to the point of exhaustion, and take the profits.
    3. Same — Time of Commencement — Construction.
    The income of royalties was payable immediately after the death of the testatrix and was not determinable from the date of delivering the trust estate to the executors as trustees. The royalties which were earned previous to and payable after testatrix’s death were also due to the beneficiary in the trust.
    4. Same — Stock Dividends.
    As a rule, cash ' dividends, however large, are regarded as income, stock dividends as capital: and therefore stock dividends received by tbe trustees as part of tbe estate, and representing increases in tbe value of corporate assets, belonged to tbe corpus of tbe estate.
    5. Same — Timber Rights — General Rule.
    Usually tbe life tenant is allowed to cut timber for tbe purpose of clearing tbe land, provided tbe part cleared, with wbat is under cultivation does not, as compared with tbe remainder of tbe tract, exceed tbe proportion of cleared to wooded land allowed by good husbandry; and provided, further, that the value of tbe inheritance is not thereby materially lessened. Tbe right to tbe proceeds followed complainant’s right to cut tbe timber.
    6. Same — Taxes—Expense oe Trust.
    Taxes were chargeable to tbe remainderman where tbe property was unproductive, and as to unproductive timber lands, tbe charge of preserving and maintaining this portion of tbe estate rightly belonged to tbe estate, not tbe daughter.
    Appeal from Wayne; Hally, J.
    Submitted January 4, 1916.
    (Docket No. 13.)
    Decided March 31, 1916.
    Bill by Caroline Boeing Poole against the Union. Trust Company, Frank W. Blair, and Hobart B. Hoyt,, trustees under the will of Marie M. Owsley, deceased,, and another, for a decree construing the will of said deceased, for an accounting, and for other relief. From the decree of the court both parties appeal.
    Modified and affirmed.

      Beaumont, Smith & Harris, for complainant.

      W. W. Gurley and Howard M. Carter, for defendants.
   Kuhn, J.

The testatrix inherited from her first husband, William Boeing, and a deceased daughter, one-half the former’s estate. (Her surviving daughter, the complainant herein, inherited one-quarter, and her surviving son, a defendant, the other one-quarter interest.) She devised to her surviving children, in equal parts, the residue of her one-half interest, after making certain specific legacies and devises, one of which included an annuity of $10,000 to her second husband, Dr. Owsley. That part of the will, the effect of which is in doubt, reads as follows:

“8th. All of the rest and residue of my estate, real and personal, whatever it may be, and wherever located, I direct shall be divided into two equal parts, one of which I hereby give, devise, and bequeath to my son, William E. Boeing, in absolute and unqualified fee simple. The other half of said residue, or residuum, I hereby give, devise, and bequeath to my executors hereinafter named, in trust, for the sole and separate use and benefit of my daughter, Caroline M. Boeing. My said executors shall have full power and control of said trust property; they may sell and convey it in whole or in part by their deed or deeds, without the union of my said daughter, and the entire property shall be altogether free from any marital right or other right on the part of any husband my said daughter may have; said trustees may sell any securities held by them as a part of the trust fund and make transfer of the same; they may reinvest proceeds of sale, or invest original money; in short, they shall have full, sole, and complete authority over and control of said fund or property, and no purchaser from them shall be bound to see to the application of the purchase money. But said trustees must zealously preserve and carefully hold the corpus or principal of said fund, whatever its form, subject to the trust created for it by this will, to be ultimately disposed of as directed below, with this one and sole proviso, that if it be necessary, as suggested in the third clause of this will, to contribute anything from this trust fund to maintain the fund intended to provide an income for my said husband, then the trustees holding my daughter’s trust fund shall make such contribution as may be the proper share of my daughter to such deficiency, and they are áccordingly hereby empowered to do so in that event. The income arising from this fund or property, the said trustees shall pay over to my said daughter, Caroline M. Boeing, semi-annually or quarterly, or oftener, as may be the most convenient, as her sole and separate estate, free from the debts, control, or marital rights of any husband she may have. And this shall continue during the life of my said daughter. At her death the entire trust fund created for her by this will shall pass in fee simple to such child or children of hers as may survive their mother, and the descendants of any child or children of hers who may be dead, leaving child or children, descendants in any case to take per stirpes, and not per capita. But my said daughter may by her last will and testament dispose of said trust fund as she may see fit in the event that she dies leaving no child or children, or the descendants of any, and her said brother dies before she does, leaving no child or children, or the descendants of any. At the death of my said daughter leaving no child or children, or the descendants of any, the entire trust fund shall pass in fee simple to my said son, William E. Boeing, or, he being dead, to his child or children surviving him and the descendants of any who may be dead, descendants to take per stirpes and not per capita.”

The estate of Mrs. Owsley included $151,823.72 cash; securities aggregating $485,775, par value; bills and accounts receivable amounting to $335,548.53; farm stock worth $5,421.14; an undivided share in the first husband’s undivided interest in unproductive timber lands (the children owning the other shares) ; and an undivided share in the first husband’s undivided one-sixth interest in mineral lands in Minnesota. These lands were under lease for mining operations, and the royalties accruing had been paid to Mrs. Owsley and the two children in shares of one-half to the former and one-fourth to each of the latter.

Dr. Owsley, having renounced the provisions in the will made in his behalf by Mrs. Owsley, took under the laws of Minnesota, as surviving husband, an undivided one-third of his wife’s real estate. The residue devised to the children was thus reduced to two-thirds.

The will was probated, and the executors and trustees, after paying debts and expenses of administration, divided the real and personal assets, delivering one-half to the son and one-half to themselves as trustees for the daughter’s share. They them filed a bill in the chancery court asking for an allowance of their account and a discharge. There was more than enough cash belonging to decedent’s estate to pay debts and expenses, without resorting to the income belonging to the trust fund.

On December 30, 1914, the court entered a decree allowing the account, discharging the executors and trustees, and appointing the defendants Union Trust Company, Frank.W. Blair, and Hobart B. Hoyt as new trustees to carry out the provisions of the will. In its decree the court reserved certain questions which had been raised in the bill of the executors as to the division of assets and expenses between the life estate and the remainder interest in the share left in trust. The present bill was filed for a construction of the will and instructions to the trustees on these doubtful points. The questions are:

(1) Are the royalties arising from the mining leases a part of the income payable to the complainant as life tenant?
(2) Did the income payable to complainant begin to run immediately after Mrs. Owsley’s death, or at the time the trust estate was delivered by the executors to themselves as trustees?
(3) Were the royalties which were earned previous to, but payable after, Mrs. Owsley’s death a part of the general assets of the estate, or payable to the complainant as life tenant?
(4) Is the complainant entitled to the additional stock received by the trustees in the-nature of a stock dividend?
(5) Are the taxes and expenses of carrying unproductive trust lands payable out of the remainder or out of the complainant’s income?
(6) Do the proceeds of the sale of timber belong to the life tenant, or are they a part of the remainder?

The court below found in favor of the complainant in answer to questions 1, 2, 3, and 6, and against her in answer to questions 4 and 5. A decree was entered accordingly, from which both parties have appealed.

The questions involved will be discussed in the order presented above.

(1) Are the royalties arising from the mining leases a part of the income payable to the complainant as life tenant?

Under these leases the lessees agreed to pay the lessors a royalty of 25 cents a ton quarterly for all ore minect and shipped. An annual minimum royalty, designated as “ground rent,” was provided for. Lessees were to pay all taxes and assessments against the land during the lives of the leases. All the leases had been executed by the testatrix and the other owners of the fee at least five years before the death of the testatrix.

By the later common law, life estates, whether conventional or arising by operation of law, were impeachable for waste, unless the instrument creating a conventional life estate expressed a contrary intention. Under this rule, a life tenant was not permitted to open new mines. Plymouth v. Archer, 1 Bro. Ch. Rep. 159; Viner v. Vaughan, 2 Beav. 466; University v. Tucker, 31 W. Va. 621 (8 S. E. 410); Marshall v. Mellon, 179 Pa. 371 (36 Atl. 201, 35 L. R. A. 816, 57 Am. St. Rep. 601); Ohio Oil Co. v. Daughetee, 240 Ill. 361 (88 N. E. 818, 36 L. R. A. [N. S.] 1108, and note); also note in 36 L. R. A. (N. S.) 1099. This court refused to follow the common-law rule in the case of Seager v. McCabe, 92 Mich. 186 (52 N. W. 299, 16 L. R. A. 247), where the remainderman opened the mine, or made the lease. There the life tenant by dower right was permitted to share in the royalties, the court holding that the strict common-law rule was not in harmony with the spirit of our institutions and the policy of our law, and would often result in defeating the purposes of our dower statute.

It has, however, long been the law that where mines were opened or the leases executed before the life estate commenced, the owner of the life estate might, in the absence of restraining words, work the mines, evén to the point of exhaustion, and take the profits. Campbell v. Wardlaw, L. R. 8 App. Cas. 641; Reed v. Reed, 16 N. J. Eq. 248; Waldorf v. Railroad Co., 13 Ind. App. 134 (41 N. E. 396) ; McFadden’s Estate, 224 Pa. 443 (73 Atl. 927) ; Williamson v. Jones, 43 W. Va. 562 (27 S. E. 411, 38 L. R. A. 694, 64 Am. St. Rep. 891) ; Boeing v. Owsley, 122 Minn. 190 (142 N. W. 129), and notes in 36 L. R. A. (N. S.) 1099, 1108.

In Palms v. Palms, 68 Mich. 355 (36 N. W. 419), where this court held that mining royalties should be treated as capital, not income, the testator, after having directed in the will that the net income of his estate should go to his two children during their lives, the principal to their children, made a codicil directing:

“That the royalties and other moneys received from leases of mineral lands, whether such leases be made by me during my life, or by my executors and trustees after my death, shall be considered as a portion of the capital of my estate, and shall be invested as such by my executors and trustees. The income derived from such capital to be paid to my children as in my will provided.”

Fourteen days before he died, he had leased for mining purposes the iron ore on 160 acres, for 20 years. Justice Morse, in his opinion, regarded this as a sale of the ore, or part of the land, citing decisions of the Pennsylvania court in which similar transactions were held to have that effect.

An examination of these cases, however, indicates that in none of them was the question of the right to the royalties, as between life tenant and remainder-man, involved. In Stoughton’s Appeal, 88 Pa. 198, a guardian, though having generally the power to lease the ward’s property, was not allowed to make a lease of oil without court authority, the effect being a sale of the oil. In Scranton v. Phillips, 94 Pa. 15, the lessees of coal for such a period as would be required To remove it all, were entitled to the benefit of a release of liability for injury to the surface given the lessor owner by the grantee of the surface, it- being virtually a sale of the coal. In Sanderson v. City of Scranton, 105 Pa. 469, and Delaware, etc., R. Co. v. Sanderson, 109 Pa. 583 (1 Atl. 394, 58 Am. Rep. 743), the question as to who was liable to pay taxes on coal in mine was determined by the effect given the lease as a sale of the coal. The same effect was given a lease in Hope’s Appeal (Pa.), 3 Atl. 23. And in Fairchild v. Fairchild (Pa.), 9 Atl. 255, a lease was made of mineral lands. After the death of the lessor, the lands descended to his children. One of the daughters died, and her husband claimed the royalties as rents, because of his being a tenant by curtesy in the real estate. They were, however, held to be personalty, distributable according to the intestate laws.'

These cases seem inconsistent in reasoning with the later decisions of the Pennsylvania court, which are found to be in agreement with the great weight of authority, in holding that the working of .open mines by the life tenant is not waste, and that the profits of the mines belong to the life estate. In Neel v. Neel, 19 Pa. 323, it was said:

“The most obvious inference would seem to be that when a man devises land with an open mine upon it, to a person for life, he intended the devisee to derive profit from the mine, as well as from the surface of the land.”

See, also, Shoemaker’s Appeal, 106 Pa. 392, in which Stoughton’s Appeal and Scranton v. Phillips, supra, were cited and disregarded by the court; McFadden’s Estate, 224 Pa. 443 (73 Atl. 927), and the cases digested in Barringer & Adams on the Law of Mines and Mining in the United States, vol. 1, p. 8, and volume 2, p. 3.

A ’study of the cases indicates that the courts look closely to discover and give effect to the 'intention of the testator. In Palms v. Palms, supra, the testator gave clear instructions in the codicil how his will should be construed as to the disposition of mining, royalties, and the court could not have done otherwise than treat them as capital, belonging to the corpus of the estate. On the other hand, it is reasonable to suppose that this testatrix, who had been enjoying a considerable income from her mining interests, and sought by her will to divide equally the enjoyment of her estate between her two children, intended and expected that each was to receive one-half the income from these interests, not that the son should receive all the proceeds from the mines, the daughter to receive only the intérest these proceeds might earn. The intention on the part of the testatrix to distribute the estate equally between her son and daughter can be readily obtained from the will. She refers to the fact that the property which she is about to distribute came to her from the father of her two children, and states that she wishes the property which the father had accumulated by his labor and foresight to be enjoyed by* her children. There is no evidence in the will that the testatrix meant or intended that the daughter’s enjoyment of the property should be any less than the son’s. A reading of the whole will is convincing that it was her disposition to treat the son and daughter alike as to the benefits to be derived under the will, and it is clear that this theory of an equal division of the estate is interfered with unless one-half of the entire net royalties under the mining leases are given to the daughter. It is also apparent on this record that the testatrix, during her lifetime, treated the royalties from the mines as part of her regular income, and in the consideration of them they were no different to her than the moneys she received as dividends upon the stock which she owned. We are therefore of the opinion that the court below was correct in holding that the mining royalties under the circumstances of this case should be considered as income, rather than as part of the corpus of the estate.

(2) Did the income payable to complainant begin to run immediately after Mrs. Owsley’s death, or at the time the trust estate was delivered by the executors to themselves as trustees?

The lower court held that the income was payable immediately after the death of the testatrix, and the defendants’ counsel conceded this to be correct. Inasmuch as the personal assets left by the testatrix exceeded her debts and the expenses of administration, the income is not liable to a charge for this purpose, and should go intact to the one entitled to it under the will. Lovering v. Minot, 9 Cush. (Mass.) 151. We affirm the ruling of the lower court on this point.

(3) Were the royalties which were earned previous to, but payable after, Mrs. Owsley’s death a part of the general assets of the estate, or payable to the complainant as life tenant?

The lower court held that these payments were unapportionable, citing Dexter v. Phillips, 121 Mass. 178 (23 Am. Rep. 261). Counsel do not dispute the holding, and we think it is correct. These royalties should go to the complainant, the same as if they were periodical payments of rent.

(4) Is the complainant entitled to the additional stbck received by the' trustees in the nature of a stock dividend?

The following appears in the record as a part of the testimony of Harold W. Bur don, an accountant, who was employed as an auditor in connection with the estate in September, 1911, and who professed familiarity with all the financial transactions of the estate before and after that time:

“Among the stocks that were held by Mrs. Owsley in her lifetime and turned over by her executors to the trustees, there' were some stocks of the Griffin Wheel Company and of the Ajax Forge Company. The Ajax Forge Company was an Illinois corporation, as was also the Griffin Wheel Company. Some time in April, 1913, the Griffin Wheel Company was reorganized and reincorporated under the laws of Massachusetts, and the Massachusetts corporation acquired all of the assets of the Illinois corporation. I could not say whether there were any additional assets put in. I do not know whether or not there were any assets that were not a part of the original assets of the Griffin Wheel Company, the Illinois corporation.
“The Ajax Forge Company was reorganized in October, 1913. It was reorganized under the laws of Delaware and took over all of the assets of the Illinois corporation.
“As a result of the reorganization of the Griffin Wheel Company, there was additional stock paid over to the trustees. I have a memorandum here of additional stock. I think roughly it was about $83,000. There was preferred stock of $11,210.00 ($11,250.00, 112% shares), and common stock of $11,200.00 (112 shares), at par, both of them. That was in the Griffin Wheel Company.
“There was additional stock went to the trustees in the reorganization of the Ajax Forge Company. The preferred stock, issued in addition to their previous holding, was $38,050.00 (380% shares), and common stock $25,000.00 (250 shares), both at par. All this additional stock is now held by the present trustees.”

It also appears from Exhibit 39 that the trustees made investments, among others, as follows:

May 18, 1911. 200 shares Griffin Wheel Co., Pref........................ $20,000
June 17, 1912. 25 shares Griffin Wheel Co., ' Com........................ 5,000
Sept. 5, 1913. 64% shares Ajax Forge Co., Pref........................ 6,450
$31,450

Witness Burdon testified that as to moneys received by the executors, no effort was made in keeping the accounts to differentiate between what was strictly income and what was a part of the remainder or corpus of the estate. All the funds of the executors received from all sources were commingled, and expenses of administration, etc., were paid out of the general fund into which all the assets were thrown.

H. S. Rooksby, who was familiar with the stock transactions which resulted in these stock dividends, testified that he had made an effort to ascertain when, the “profits” out of which the additional stock arose were earned. He had examined the companies’ accounts, but the apparent assets were practically the same at the end of the fiscal year 1910 and just prior to the reorganization in 1913. All the extensions that had been made, the properties that had been built, the plant, machinery, and things like that, had been taken up and depreciated. The net result of this course of action was that all these increases of plant, buildings, etc., had apparently not increased their assets.

“In other words, they took these profits and they put them into buildings and machinery. Subsequently they depreciated the buildings and machinery, the value of it, properly, so that these increases disappeared.”

It was not possible to determine from the books whether these profits were earned before or after Mrs. Owsley’s death. It would require a very minute and extended examination to find out what the plant, machinery, equipment, etc., cost, and an appraisal at the time of the reorganization. The witness concluded:

“This was not strictly a stock dividend. The stockholders got this additional stock, by resolution of the board of directors, and by resolution of the shareholders they agreed to reorganize and issue this stock, as I have stated, in this proportion. In other words, they organized new corporations and turned over the old assets, or the assets of the old corporations to the new corporations; and they issued more stock for the assets in the new corporation than was outstanding in the old corporation.”

There is no indication in the will of the intention of the testatrix in regard to the disposition of such’ an increase in the trust fund. Indeed, it is likely that the testatrix did not contemplate such an event. This being the case, resort must be made to the rules of law which have been laid down to govern such a contingency.

The courts in this country have not been able to agree on a rule for the division between life tenant and remainderman of unusual and extraordinary distributions, in the form of stock or cash, made from «earnings, though the majority favor, and the tendency is toward, the Pennsylvania rule, which apportions them according as they were earned before or after the commencement of the life estate, rather than the Massachusetts rule, which is thus stated in Minot v. Paine, 99 Mass. 101, 108 (96 Am. Dec. 705):

“A simple rule is, to regard cash dividends, however large, as income, and stock dividends, however made, as capital.”

They do seem, however, to be agreed on the principle that such distributions belong to the corpus of the estate, not the income, when.they represent a reduction of capital, or a change of its form, or an enhancement of the value of the capital assets from causes other than the accumulation of earnings. Kalbach v. Clark, 133 Iowa, 215 (110 N. W. 599, 12 L. R. A. [N. S.] 801, 12 Am. & Eng. Ann. Cas. 647); Miller v. Payne, 150 Wis. 354 (136 N. W. 811); Thayer v. Burr, 201 N. Y. 155 (94 N. E. 604), approved in Re Osborne, 209 N. Y. 450 (103 N. E. 723, 823, 50 L. R. A. [N. S.] 510, Am. & Eng. Ann. Cas. 1915A, 298) ; Ex Parte Humbird, 114 Md. 627 (80 Atl. 209) ; 5 Thompson on Corporations (2d Ed.), § 5414; Holbrook v. Holbrook, 74 N. H. 201 (66 Atl. 124, 12 L. R. A. [N. S.] 768, and note); and note in 35 L. R. A. (N. S.) 563. And this principle is not intrenched upon by those decisions (e. g., Bryan v. Aiken [Del.], 86 Atl. 674; Boyer’s Appeal, 224 Pa. 144 [73 Atl. 320] ; Smith v. Dana, 77 Conn. 543 [60 Atl. 117, 69 L. R. A. 76, 107 Am. St. Rep. 51]), which give to the life tenant stock dividends which represent accumulations of earnings invested in improvements or extensions. Such decisions view the distribution as one of earnings essentially, though their form has been changed by the corporation. What are the elements in this case which tend to reveal the true character of these distributions?

Some of the stock in each company came to the executors as part of the trust fund or corpus. Some of it was purchased by the trustees. But since the trustees commingled the income and principal assets and kept no accounts to differentiate them, it cannot be known whether the purchase was made from assets belonging to the life estate or from principal assets, or from both. It may be suggested that since the trustees were directed by the will to pay all the income to the complainant, but were given full power and control of the trust fund, with authority to sell any securities held by them as part of the trust fund, and reinvest the proceeds of the sale, or invest original money, and indeed were authorized to sell and convey the whole property, without the union of the complainant, it is more likely that in their uncertainty as to the’ disposition that should be made of the income of the trust estate they invested the $31,450 in these securities as principal, intending to use or assuming to use original money or some other part of the fund which they regarded as principal assets; for they clearly had no authority to invest the income.

Assuming, then, that this was an investment of principal assets, we still have to determine the original question: Is this essentially a distribution from earnings? It is clear from Rooksby’s testimony that there were no accumulated earnings at any time, no “fund” out of which this additional stock was declared indirectly or directly. Instead of allowing earnings to accumulate, the corporations used them, according to the principles of good business management, in increasing and maintaining equipment. That is, there were only enough earnings to take care of the natural growth of the business, and offset depreciation, not enough to meet these needs and develop besides a surplus of accumulated earnings. The situation does not even seem to come within those cases where it has been held that a surplus turned into equipment and new property is still essentially earnings, and that a stock dividend representing increase in value of such equipment and extension is income belonging to the life tenant. For the witness says that the apparent assets were practically the same at the end of the fiscal year 1910, when the testatrix died, as they were just prior to the reorganization in 1913, and there was no evidence that the reorganization was accompanied by the addition of new assets. The testimony of this witness, reviewed above, all seems to point to the conclusion that the assets had not been increased. “In other words,” he said, “they took these profits and they put them into buildings and machinery. Subsequently they depreciated the buildings and machinery, the value of it, properly, so that these increases disappeared”; and concludes that “this was not strictly a stock dividend.” So that, instead of representing transmuted earnings, these stock distributions, according to the only evidence in the record, seem to represent merely an enhancement in value of the corporate assets, from causes other than the accumulation of earnings, apparently due to good management and the growth of trade. In view of this conclusion, we are not concerned with the inquiry whether these so-called “profits” were earned before or after Mrs. Owsley’s death.

The trial judge was therefore correct in holding that under th® showing made in this record the stock dividends should be considered as part of the corpus of the estate, rather than as income.

(5) (6) Are the taxes and expenses of carrying unproductive trust lands payable out of the remainder, or out of complainant’s income?

The lower court very properly allowed his decision of this question to be influenced largely by his decision of the last question: Do the proceeds of the sale of timber belong to the life tenant, or are they a part of the remainder?

These he awarded to the life tenant, upon the supposed authority of Delaney v. Manshum, 146 Mich. 525 (109 N. W. 1051), regarding the decision of this court in Stroh v. O’Hearn, 176 Mich. 164 (142 N. W. 865), as not in point. In the former case, the widow was suing to establish her dower right in the timber on 49 acres of land owned by her husband, which timber the husband had sold to the defendants by a cutting contract to which the complainant’s signature was not secured. The court held defendants could not cut the timber after the husband’s death, since the trees were a part of the realty, to which the wife’s right of dower attached in spite of the contract. But the court was not called upon to decide the extent of that right in the land, nor how the widow might use the property under her-right of dower. In Stroh v. O’Hearn, on the other hand, the court expressly stated that, as to the owners of a life' estate in land, “their timber deed to Stroh authorized waste of the fee, and was invalid,” thus holding, in effect, that life tenants are not entitled to the proceeds of timber sales, and could not sell the timber in the first place.

By the common law, the life tenant was narrowly restricted in the taking of timber to estovers of fuel and repairs, save where, as hereafter noted, the custom of the estate was otherwise. In America, because of the abundance of wooded land and the comparative scarcity of arable land, the common-law rules were relaxed,. and it has been the general rule to allow the life tenant to cut timber for the. purpose of clearing the land, provided the part cleared, with that under cultivation, does not, as compared with the remainder of the tract, exceed the proportion of cleared to wooded land allowed by good husbandry; and provided, further, that the value of the inheritance is not thereby materially lessened. The latter consideration is the great criterion. Rutherford v. Wilson, 95 Ark. 246 (129 S. W. 534, 37 L. R. A. [N. S.] 763, and note); Hill v. Ground, 114 Mo. App. 80 (89 S. W. 343) ; Dorsey v. Moore, 100 N. C. 41 (6 S. E. 270) ; Keeler v. Eastman, 11 Vt. 293; Norris v. Laws, 150 N. C. 599 (64 S. E. 499); Proffitt v. Henderson, 29 Mo. 325; Disher v. Disher, 45 Neb. 100 (63 N. W. 368); Drake v. Wigle, 24 U. C. C. P. (Canada) 405; Saunders v. Breakie, 5 Ont. Rep. 603; Warren County v. Gans, 80 Miss. 76 (31 South. 539); Learned v. Ogden, 80 Miss. 769 (32 South. 278, 92 Am. St. Rep. 621) ; Davis v. Gilliam, 40 N. C. 308, 311; Wilkinson v. Wilkinson, 59 Wis. 557 (18 N. W. 527). And the right to the proceeds of sales obviously follows the right to cut the timber, as was observed in some of these cases.

Where, before the commencement of the life estate, the land has been cultivated for the produce of salable timber, the life tenant may continue the cultivation for his own profit. This is so even in England, where the law is strictest in favor of the owner of the inheritance, the right being analogous to the right of the life tenant to work mines that were being operated at the commencement of his estate. Honywood v. Honywood, L. R. 18 Eq. 306. And see Williard v. Williard, 56 Pa. 119. But the meager facts in this record indicate that there had been no lumbering business on these lands at any time, and whatever sales were made by the testatrix were not made in the course of a regular business of selling timber, but were irregular, unconnected sales of “tracts” of timber or “undivided interests.” Moreover, it is significant that these lands were purchased ■for investment and resale. Such evidence points to the conclusion that these were sales of real estate, sales of parts of the corpus of the estate, the proceeds of which should be preserved as principal. Such property as this the trustees are authorized to sell and reinvest the proceeds of. They are authorized by the will to pay only the income of such property or the income from the proceeds of its resale, to the daughter. Since it appears that the property is valuable principally for the timber standing on it, it follows that the inheritance would be very greatly damaged if the trustees should sell the timber off the land and pay the proceeds to the life tenant. The life tenant will not be allowed to so use the land as to materially injure the fee. Duncombe v. Felt, 81 Mich. 332 (45 N. W. 1004) ; Heliker v. Heliker, 184 Mich. 657 (151 N. W. 757). The lower court was therefore in error on this point.

As to the responsibility for taxes, the circuit judge held they were chargeable to the life tenant, on the strength of certain decisions of this court, and as a matter of equity. Since the remainderman had been deprived of the only thing of appreciable value on the timber land, it was thought that he should not be required to bear the expenses of the property. This consideration has, of course, been eliminated by the conclusion as to the ownership of the proceeds of the timber sales. The decisions cited state the general rule that the life tenant should pay taxes during the continuance of his estate. Jenks v. Horton, 96 Mich. 13 (55 N. W. 372); Watkins v. Green, 101 Mich. 493 (60 N. W. 44); Defreese v. Lake, 109 Mich. 415 (67 N. W. 505, 32 L. R. A. 744, 63 Am. St. Rep. 584). It has been held in several cases, however, that where the property is unproductive, the burden of taxation should be borne by the remainderman, rather than by the life tenant. Crockett v. Crockett, 2 Ohio St. 180; Stone v. Littlefield, 151 Mass. 485 (24 N. E. 592) ; Clark v. Middlesworth, 82 Ind. 240; In re Martens’ Estate, 16 Misc. Rep. 245 (39 N. Y. Supp. 189). It seems but just that the burden and expense of preserving the inheritance in the unproductive timber lands to the remainderman should be borne by the principal, not the income. Such an exception to the general rule placing the tax burden on the life estate is supported by good reason and the authority cited.

With the modifications herein suggested, the decree of the court below is affirmed. '

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


source: Caselaw Access Project

author: Kuhn, J.

license: Public Domain

text:
    WALTER v. DETROIT, JACKSON & CHICAGO RAILWAY CO.
    1. Witnesses — Cross-Examination—Evidence.
    In an action for personal injuries, plaintiff’s counsel did not lo§e the right to cross-examine a witness called as defendant’s agent under 3 Comp. Laws 1915, § 12554, because counsel did not claim the statutory privilege when he placed the witness on the stand.
    2. Same — Opinion—Qualifications.
    An eyewitness of the accident, and participant in the collision with defendant’s street car, who was asked whether the car slackened its speed from the time she first saw it, 700 to 800 feet away, until it struck the conveyance, did not have to establish any particular qualifications to enable her to give her opinion; and though defendant claimed she had no opportunity to determine the matter of its speed, her testimony that she observed the approach of the car warranted the court in admitting the proofs.
    3. Same — Gross Negligence — Last Chance Rule.
    It is gross negligence where the wrongdoer might, by the exercise of ordinary care, have known of plaintiff’s precedent negligence and discovered his danger, but neglects to take proper measures to avoid an accident; it may be a deliberately wilful act, or an act so reckless as to be akin to wilful, and, hence, presumed by law to have been wilful, or a failure to exercise ordinary care to prevent ■ injury after the peril of the other should have been or actually is discovered, in the exercise of reasonable care.
    4. Same — Proximate Cause — Trial—Question of Fact.
    Plaintiff’s horse, frightened by an approaching automobile, turned upon the track of defendant railway, when a car approaching from the opposite direction ran into and overturned the horse and vehicle. Plaintiff claimed the car was 800 or more feet distant and could have been stopped or checked in time to have averted the collision. While his evidence on this issue was disputed by defendant, the motorman gave evidence that the car was 300 to 400 feet away when the horse went upon the track and was going at a speed of 35 to 40 miles an hour. There was testimony tending to show that the motorman made no effort to .check the speed of the car as he approached. The car went about 100 feet after it hit the horse. Held, that the issues of proximate cause and intervening negligence were correctly submitted to the jury.
    5. Same — Independent Cause.
    When a particular consequence results from a wrong, it nlay be said that the wrong is the proximate cause of the consequence, unless there intervenes between the wrong and said consequence something which may properly be denominated, a cause. 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.
    Error to Wayne; Murphy, J.
    Submitted January-10, 1916.
    (Docket No. 75.)
    Decided March 31, 1916.
    Case by Martha Walter against the Detroit, Jackson & Chicago Railway for personal injuries. Judgment for plaintiff. Defendant brings error. '
    Affirmed.

      Corliss, Leete & Moody and William, G. Fitzpatrick, for appellant.

      Dohany & Dohany, for appellee.
   Kuhn, J.

The accident which gave rise to this litigation occurred on June 28, 1913, on Michigan avenue, in the township of Dearborn, Wayne county. Michigan avenue is paved with concrete at this point, and lying immediately north of the concreted way, parallel thereto, and about three feet distant therefrom, is the track of the defendant railway company. Both the highway and the track are straight for a considerable distance east and west of the scene of the accident. The plaintiff was riding with her mother, Caroline Walter, who was driving a horse and a light market wagon, going in a westerly direction on the north side of the concreted highway. Approaching from the west, at a very rapid rate of speed, and likewise on the north side of the concreted way, was an automobile which, as it came toward the rig, was directly in front of it, and continued to proceed thus until within a few feet of it, when it swung suddenly to the south, and past. The manner of this approach, or the passing, or both, caused the horse to take fright and precipitately turn toward and proceed upon the defendant’s track. At this time one of the defendant’s freight cars was approaching from the west at a rate of speed estimated to be from 35 to 40 miles an hour, and although the plaintiff’s mother tried to get the horse back off the track, it was struck and killed by the car, and both women were thrown from the wagon and injured. The plaintiff brought suit, and on the'trial in the court below the jury rendered a verdict for the plaintiff in the sum of $600, upon which judgment followed. It was the claim of the plaintiff on the trial that the case, on the evidence, was one for the jury as to whether the motorman used reasonable diligence in an attempt to stop the car in time to avert a collision, and by her declaration gross negligence was charged. It is the claim of the defendant that on the evidence no issue was presented to submit to the jury, and that it affirmatively. appeared that the motorman kept a perfect lookout, made every humanly possible effort to stop the car and that the proximate cause of the plaintiff’s injury was the negligent approach of the automobile which frightened the horse and caused it unexpectedly to go upon the track. A motion for a new trial was made and denied, exceptions were taken, and the cause was removed to this court on error.

The plaintiff’s counsel served a subpoena on the motorman, and he was put on the stand in support of the plaintiff’s case. After he had been asked a few preliminary questions, plaintiff’s counsel announced that the witness was called under Act No. 307, Pub, Acts 1909 (3 Comp. Laws 1915, § 12554), and defendant’s counsel claim that the right to examine the witness by virtue of the act in question was waived because of the failure to make the announcement of the claim to examine under the provisions of the act, either before or at the time the witness was put upon the stand. The questions that had been asked at the time the announcement was made by counsel were simply preliminary questions, and the main facts- involved in the controversy had not been gone into. We do not think there is any merit in the contention that the failure to sooner announce the claim to the benefit of the statute constituted a waiver of such benefit, though undoubtedly the better practice would be for counsel to make such announcement at the time the witness takes the' stand and is sworn.

The motorman testified that when he first saw the horse turn on the track, it was between 300 and 400 feet away, and that he immediately shut off the power and applied the brakes, which were in good working order, but did not use sand nor reverse his motor. He claimed that what he did was all that could be done to bring his car to a stop in the shortest possible distance, under the conditions which prevailed that day, and that the car went about 100 feet after it struck the horse before he brought it to a stop. He further testified that at the rate the car was going (between 35' and 40 miles an hour) he was able to stop the car within 400 feet.

The plaintiff’s mother testified that when the horse got on the track she judged the car was between 700 and 800 feet-away. She was also asked the following question: “From the time you saw the street car up to the tiriie it hit your horse, did it slacken its speed at all?” and made answer, “Never.” This answer was objected to on the ground that it was not shown that the witness had any opportunity of observing. The witness did not attempt to testify as to the rate of speed of the car, but simply stated that the car did not slacken its, speed. In our opinion, it is not necessary for a reasonably intelligent person to show any particular qualification to testify that a car did not slacken its speed, which under ordinary circumstances is not a difficult matter to determine. It can be argued with force that her attention would have been rather directed to the horse, which she was trying to get off the track, and that she could not have given much time to observing the approach of the car. But she testified that she did, and the value of her testimony, under all the circumstances, was for the jury to determine.

If the jury accepted the testimony of the plaintiff’s mother rather than the testimony of the motorman, it seems clear that the motorman, under his own testimony as to the distance in which he could stop the car under the conditions prevailing, could have effected a stop in time to avoid collision. The learned trial judge, in denying a motion for a new trial, said:

“This collision occurred on a track at a point where a clear and unobstructed view could be had for a distance practically as far as the eye can see along a highway.^ There was nothing to prevent the motorman having a view of the horse from the moment it entered upon the street railway tracks. If then a space of 700 to 800 feet intervened from the place where the horse jumped upon the tracks, and the position occupied by the car at that precise moment, the question arises, does the record, as it now stands, show that the motorman could, and should, have brought his car to a stop within that distance in time to have avoided a' collision? Giving him the benefit of the maximum distance which he says his car traveled before he could effect a stop by using all means at his command so to do, there remains a space of at least about 150 feet which might have been utilized in the endeavor to stop the car, and which would appear not to have been availed of if the plaintiff’s theory is accepted.”

In Fike v. Railroad Co., 174 Mich. 167 (140 N. W. 592), we approved the following rule as to gross negligence:

“It is gross negligence where the wrongdoer, by the exercise of the most ordinary care, should have known of the precedent negligence of the plaintiff and of his peril, and subsequently does him an injury. Baldwin on Personal Injuries, § 138. Gross negligence, therefore, may be: (a) A deliberately wilful act; (6) an act so reckless as to be akin to wilful, and therefore presumed dn law to be wilful; (c) a failure to exercise ordinary care to prevent injur^ to another, after his peril is, or should have been, discovered in the exercise of ordinary care. Such failure to exercise ordinary care to prevent injury is so reckless that the law presumes it to be wilful; wilfulness or deliberate intent may be inferred from all of the circumstances.”

We think that the facts clearly presented a question for the jury, under the authorities. Laethem v. Railway Co., 100 Mich. 297 (58 N. W. 996); McClellan v. Railway Co., 105 Mich. 101 (62 N. W. 1025); Manor v. Railway Co., 118 Mich. 1 (76 N. W. 139) ; Tunison v. Weadock, 130 Mich. 141 (89 N. W. 703) ; Quirk v. Railway, 130 Mich. 654 (90 N. W. 673) ; Boettcher v. Railway Co., 131 Mich. 296 (91 N. W. 125); Bedell v. Railway, 131 Mich. 668 (92 N. W. 349); McVean v. Railway, 138 Mich. 263 (101 N. W. 527) ; Ablard v. Railway, 139 Mich. 248 (102 N. W. 741); Morse v. Railway Co., 168 Mich. 99 (133 N. W. 935); Hibbler v. Railway, 172 Mich. 368 (137 N. W. 719) ; Good Roads Construction Co. v. Railway Co., 178 Mich. 1 (138 N. W. 320) ; Weitzel v. Railway, 186 Mich. 7 (152 N. W. 931); Huff v. Traction Co., 186 Mich. 88 (152 N. W. 936); Millette v. Railway, 186 Mich. 634 (153 N. W. 10).

It is also claimed that a verdict should have been directed because the negligence of the defendant was not the proximate cause of the plaintiff’s injury. In this case the defendant’s alleged negligence consisted of the failure of its motorman to make a seasonable and proper effort to stop the car after the plaintiff’s perilous position was or should have been discovered. In Stoll v. Laubengayer, 174 Mich. 701, 706 (140 N. W. 534), we quoted with approval from Iamurri v. Gas Co., 148 Mich. 27 (111 N. W. 884) :

“When a particular consequence results from a wrong, it may be said that the wrong is the proximate cause of that consequence, unless there intervenes between the wrong and said consequence something which may properly be denominated a cause. 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 is in such a case a condition and not a cause.”

It is clear that in the instant case the alleged negligence of the defendant’s motorman intervened between the scaring of the plaintiff’s horse by the automobile and the injury, and must therefore be said to have been.properly denominated the cause of the accident.

An examination of the charge of the court shows that the theories of the parties were, clearly presented to the jury, with proper instruction as to the law, and we are not' convinced that there was any error committed. We are also convinced that there was sufficient evidence to sustain the verdict, and that it was not error for the court to deny the motion for a new trial, made on the ground that the verdict was contrary to the weight of the evidence.

Judgment is affirmed.

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


text:
    SOUTH BRANCH RANCH CO. v. EMERY.
    Highways and Streets — User—Acceptance.
    A road which at first was used as a winding path along a water course and was traveled by the public for over 10 years as a drive for general use, but not accepted by any unequivocal act of the authorities within the 10-year period, as by improving or exercising control over it, was not a highway, within the meaning of the statute, by adverse user. 2 Comp. Laws 1915, § 4307.

    Appeal from Crawford; Sharp, J.
    Submitted January 6, 1916.
    (Docket No. 47.)
    Decided March 31, 1916.
    Bill by the South Branch Ranch Company against William Emery for an injunction restraining defendant from interfering with certain of complainant’s fences. From a decree for defendant, complainant appeals.
    Reversed.

      J. O. Murfin (Howard II. Campbell, of counsel), for complainant.

       On the question of public easement acquired by prescription, see note in 11 L. R. A. 56.

   Kuhn, J.

By its bill the complainant seeks to restrain the defendant from interfering with certain fences erected by the complainant across what is known as the “River Road,” which extends from Chase’s bridge a few miles out of the village of Roscommon, north and east, following the course of the south branch of the Au Sable river, to near the mouth of that stream. It is. the claim of the defendant that this road had become a public highway by user, and in support of this claim reliance is placed on the statute, section 4061, 2 Comp. Laws (2 Comp. Laws 1915, § 4307), which reads as follows:

“All. highways regularly established in pursuance of existing laws, all roads that shall have been used as such for ten years or more, whether any record or other proof exists that they were ever established as highways or not, and all roads which have been or which may hereafter be laid out and not recorded, and which shall have been used eight years or more, shall be deemed public highways, subject to be altered or discontinued according (to) the provisions of this act. All highways that are or that may become such by time and use, shall be four rods in width, and where they are situated on section or quarter-section lines, such lines shall be the center of such roads, and the land belonging to such roads shall be two rods in width on each side of such lines.”

The learned trial judge sustained the contention of the defendant, and the complainant has appealed.

It is the complainant’s position that a proper construction of this statute is that mere user over a period of years, however long continued, by the public, does not ripen into a prescriptive right; that there must be some evidence pointing to the control of the road by the public authorities; and, also, that the evidence in this record does not establish such a use as could possibly be held to give to this road the status of a public highway. The trial judge, after hearing the evidence, was convinced that the use to which the road in question had been put was of such a character that it could be properly said that it was used as a public highway.

It is the rule, established by this court, that the character of the use, rather than its frequency, is decisive of this matter. As it was said in Village of Grandville v. Jenison, 84 Mich. 54, at page 68 (47 N. W. at page 603):

“The extent to which a road is traveled does not govern. The law does not fix the number who must travel upon a road in order to determine whether it exists by user. It must be used by the public, and the public are all who have occasion to use it. In the case of Baldwin v. Herbst, 54 Iowa, 168 [6 N. W. 257], it was held that it would be sufficient to constitute a highway by user if it was traveled over as much, or about as much, as it would have been if it was laid out by the statute, and traveled as much as the circumstances of the surrounding population, and their business, required.”

See, also, Gage v. Township of Pittsfield, 120 Mich. 436, 438 (79 N. W. 687).

An examination of this record is convincing that the conclusion reached by the trial judge with reference to the use by the public finds support in the testimony of the witnesses, from which it appears that while it was in fact at first a meandering trail, winding in a tortuous line along the stream, nevertheless it was used as a thoroughfare by all who had occasion to pass up and down the river; that it was the only regularly traveled road in the direction in which it ran; and that it had been used for automobiles as well as for teams and horses, and passage on foot, for the period required by the statute.

The main contention arises over the construction of that part of the statute which provides that a public highway shall be established “when used as such for ten years or more.” The learned trial judge, in his opinion, stated that it would be reading a requirement into the statute which does not exist if more than the mere user by the public over the stated period of time were required. On behalf of the complainant, it is contended that the language of the statute is clear that mere user alone by the public over the period of ten years, even though uninterrupted, does not establish a public highway, but the user must be “as such,” or as a public highway, over this period, in order to satisfy the statute; and that, as the road ran through wild and uninclosed lands, the presumption is that the use shown was simply permissive.

An examination of the decisions of this court is satisfying that the construction of this statute is no longer a. matter of first impression in this court, for in the cáse of Stickley v. Township of Sodus, 131 Mich. 510, 517 (91 N. W. 748, 59 L. R. A. 287), where this statute was under consideration, it was said:

“The use' required by the statute is one accompanied by some act on the part of the township authorities, open, notorious, and hostile to the private ownership; some act which gives the original owner notice that his title is denied. (Citing cases.) Mr. Elliott says:-
“‘It must appear that the owner fully consented to the change, or there must he some element of estoppel to deprive him of his rights as the owner of the fee. Where a way is laid out and used as a private way, the mere fact that the public also makes use of it without objection from the owner will not make it a public way.’ Elliott, Roads & S. § 5.
“This doctrine applies with special force to those roads built in a new country, and for such purposes as was the road in question. The mere use, however long, is not sufficient to effect a change. (Citing cases.) In Speir v. Town of New Utrecht it is said:
“ ‘The mere fact that a portion of the public travel over a road for 20 years cannot make it a highway, and the burden of making highways and sustaining bridges cannot be imposed upon the public in that way. There must be more. The user must be like that of highways generally. The road must not only be traveled upon, but it must be kept in repair or taken in charge and adopted by the public authorities. * * * A private way, opened by the owners of the land through which it passes for their own uses, does not become a public highway merely because the public are also permitted for many years to travel over it.’ 121 N. Y. 429 [24 N. E. 694].
“In Stewart v. Frink it is said:
“ ‘It would be unjust, as well as ungracious, to take advantage of his (the landowner’s) generous permission to use his land for public convenience, and the law will not - allow this to be done.’ 94 N. C. 487 [55 Am. Rep. 619].
“This statute was not passed with the view to convert private roads into public ways. It was designed to remedy defects in establishing and recording highways. Green v. Belitz, 34 Mich. 512.”

It is said, however, that this was originally laid out as a private way, where the use of the way by the public was for the benefit of the owner of the way. But in the more recent case of Chapman v. City of Sault Ste. Marie, 146 Mich. 23, 28 (109 N. W. 55), this distinction is referred to, and it is there said:

“Plaintiff’s counsel insists, however, that even if it was competent for the jury to find a dedication to the public from user for the statutory period, there was no evidence of any acceptance of such dedication and the judge erred in submitting the question to the jury. The learned trial judge correctly instructed the jury that, ‘not only the general public must use it and travel upon it as a thoroughfare, but the implied dedication must be accepted by the public authorities and the way taken in charge and maintained as other highways.’ (Citing cases.) Important consequences flow from the acceptance of a highway by the public authorities, and the rule is a salutary one which requires that mere user by individuals shall not render the corporate body liable for such consequences.”

Elliott, in his work on Roads and Streets (3d Ed.), § 170, in speaking of this question, says:

“There has been much diversity of opinion as to whether user by the public will amount to an implied acceptance and cast the burden of maintenance upon the local government. Prof. Greenleaf says: ‘It does not follow, however, that because there is a dedication of a public way by the owner of the soil, and the public use it, the town, or county, or parish, is bound to repair. To bind the corporate body to this extent, it is said that there must be some evidence of acquiescence or adoption by the corporation itself, such as having actually repaired it, or erected lights or guide posts thereon, or having assigned it to the surveyor of highways for his supervision, or the like.’ This statement, it is noticeable, is a very careful and guarded one, and it is indicative of the doubt in the mind of the writer. In another treatise appears language more clearly exhibiting the uncertain state of the law.”

He then states that the better and prevailing rule seems to be that an acceptance may be implied from a general and long-continued user, by the public. But in speaking of the authorities which hold to the contrary he cites the case of Chapman v. City of Sault Ste. Marie, supra, quoting the language above set forth.

In Neal v. Gilmore, 141 Mich. 519, 526 (104 N. W. 609, 611), where the statute was again under consideration, it was said that:

“Plaintiff produced evidence tending to show that no work had ever been done upon the road by the public authorities, and'that it was not used by the public. The evidence was conflicting, and we think the case was properly one for the jury.”

In Vance v. Village of Pewamo, 161 Mich. 528 (126 N. W. 978), where the question was whether a disputed strip of land could be said to have been so used as to be a public highway, the court said:

“This strip was opened before defendant existed, and there is no evidence in the case that the township authorities ever exercised any control over it. * * * If there was any acceptance, it must have been by continued user by the public, and such exercise of control over it by the authorities from which an acceptance could be reasonably inferred.”

With this construction that has been given the statute by our own court, we see no escape from the conclusion that the mere fact that a portion of the public travels over a road for any number of years cannot make it a highway; and that the road must not only be traveled upon, but that some act on the part of the public authorities must be shown from which it might be concluded that the authorities had taken charge of the highway. That this is what the legislature had in mind and intended to include in using the words, “used as such,” is in our opinion determined by these decisions.

As it does not appear — nor is there any claim made . — that there was any proof of an element of public control of the road, we are forced to disagree with the learned trial judge as to "his conclusion that the road in question was a public highway; and the decree dismissing the complainant’s bill must be reversed, and a decree entered according to the prayer of the complainant’s bill, with costs to the complainant.

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


text:
    ALLEN v. SOULE.
    1. Appeal and Error — Right—Disclaiming Parties — Mortgages.
    In. a suit to require the mortgagee to sell property in such order as to protect interests of subsequent purchasers, no right of appeal from the decree arose in favor of disclaiming defendants against whom no costs were awarded, since a person having no interest in the subject matter of the litigation cannot appeal.
    2. Same — Mortgages—Commission—Estoppel.
    Where one of the mortgagees, who disclaimed any interest in the mortgage, gave testimony that $35 had been paid to complainant for discharging the mortgage and was not to apply on the debt, he had' no interest sufficient to form the basis of an appeal, and the statement was binding on him, in determining what interest he had in the subject matter.

      Appeal from Ottawa; Cross, J.
    Submitted January 12, 1916.
    (Docket No. 123.)
    Decided March 31, 1916.
    Bill by Frank C. Allen and another against Charles E. Soule and others for a decree directing the order of sale of real estate on foreclosure. From a decree for complainants, defendants appeal.
    Affirmed.

      Lillie, Lillie & Lillie, for complainants.

      Chas. E. Soule (C. Edward Soule of counsel), for defendants.
   Kuhn, J.

It is made to appear that prior to October 7, 1910, Dwight H. Cheeseman was the owner of lots 5, 6, 7, and 8, and the south half of lot 4, block E, in the village of Robinson, Ottawa county, Mich., and also the S. E. *4 of the N. E. 14 of section 13, town 7 north, range 15 west, Ottawa county, Mich. On November 10, 1909, Mr. Cheeseman gave a mortgage in the sum of $250 on all this property to Fay F. Soule, as trustee, and no assignment of this mortgage has ever been recorded. The complainant Mr. Frank C. Allen owned some property in Granville, Mich., and he and Mr. Cheeseman arranged a trade of the Granville property, subject to a small mortgage (which Allen was to pay, and has paid), for the S. E. % of the N. E. % of section 13, township 7 north, range 15 west. The deed from Cheeseman to Allen bore date December 5, 1910. Mr. Cheeseman conveyed lots 5, 6, 7, and 8, and the S. % of lot 4, block E, in the village of Robinson, to-William Foster on November 15, 1910, for the sum of $500, of which $200 was paid in cash and the balance assumed by the Cheeseman mortgage on the said lots, and also the land sold and conveyed to Frank C. Allen. That is, Foster was to pay the mortgage. Mr. Foster subsequently sold the lots to the defendant Sam Mahder, and it is claimed that Mahder paid a certain amount in cash and agreed to pay the mortgage, and that the amount of the mortgage was deducted from the purchase price, the same as it was when Foster “bought of Cheeseman. It is further claimed by the ■complainant that Mahder did not pay the mortgage, and that Mr. Allen thereupon went to the defendant Soule to purchase the mortgage, but that this was not brought about, and it is claimed that he said that the 40 acres of land would have to be sold first on foreclosure, according to the rule of sale, in the inverse order of alienation.

This bill was then filed, asking for a decree, reversing the order of sale so as to have the lots which were sold first sold first under the foreclosure. Mr. Charles E. Soule, who had been handling the mortgage, and Mr. Fay F. Soule, the trustee, and Mr. Sam Mahder, were made the defendants.' Mahder did not file any pleadings, and his regular default was entered. Mr. Charles E. Soule filed an answer, to each and every allegation of the bill, setting forth that he sold the note and mort,-gage to a stranger, and also added a disclaimer. The ■defendant Fay F. Soule also filed an answer and disclaimer that he had no personal interest in the matter, excepting the use of his name for the noteholder. On the hearing of the case Mr. Soule testified that he had ■sold the note and mortgage to David G. Alston.

Upon receiving this information, a petition was filed, asking Mr. Alston to show cause why he should not be made a party. Notice was served on him of an order that he should, within a certain time, show cause why he should not be made a party to the suit. But nothing was done, and the court, after having rendered his finding, directed that a decree be prepared, notice of settlement of which was given to Mr. Soule. The latter, on the day of the settlement of the decree, presented a petition and motion for Mr. Alston, asking that all proceedings to make Alston a party be stricken from-the files. Accompanying the petition was an affidavit in which Mr. Alston swore that he had sold the note and mortgage to the People’s State Bank of Grand Haven. The petition was denied by the court, and the decree was signed, which reverses the rule of the sale in the inverse order of alienation and directs that the lots be sold first, and if they do not bring enough to pay the mortgage, then the 40 acres are to be sold.

It is a cardinal principle, which applies alike to every person desiring to appeal, that he must have an interest in the subject-matter of the litigation. Otherwise he can have no standing to appeal. In this record it appears that Mr. Alston disclaims any interest therein, having sold the mortgage and note before any proceedings were taken to make him a defendant. It also appears from the disclaimers of the other defendants that .they had absolutely no interest in the mortgage or the property. Mr. Mahder, the man who owns the land, is not a party to the litigation, and is not complaining about the decree. No costs were awarded against any -of the defendants.

It is the claim of the defendant Charles Soule that at one time $35 was sent by Mr. Cheeseman to Mr. Allen to pay Mr. Soule to have the mortgage discharged, but the money was never turned over to Mr. Soule, and that the decree results in his being deprived of this money. But in his testimony he further stated that the $35 was not to apply on the mortgage, and it is clear, therefore, that it cannot be said to be a part of the mortgage or the note.

We are satisfied that the appealing defendants have shown no such interest as to entitle them to appeal, and that therefore their appeal should be dismissed, and the decree of the court below be affirmed, with costs of this court to the complainant.

Stone, C. J., and Bird, Moore, Steere, Brooke, and Person, JJ., concurred. Ostrander, J., did not sit.


text:
    CONE v. CITY OF DETROIT.
    1. Municipal Corporations — Negligence — Fire Department — Highways and Streets — Evidence.
    In a personal injury case for the death of plaintiff’s intestate, who was killed by a fire truck of the city that was overturned by a hole in the pavement, plaintiff’s evidence, based on estimates of the depth of the hole by observers who measured it with a pencil or other inaccurate means, was not incompetent, upon testimony showing that it had been repaired within a very few days following the accident, and where there was testimony tending to cast doubt on the accuracy of defendant’s proof as to measurements.
    2. Same — Streets—Automobiles.
    The objection that the portion of the statute placing the obligation on a city or other municipal corporation to repair its streets was enacted before automobiles were in use, and should not be held to apply to vehicles other than those which were in use at the time the statute took effect, is untenable. -1 Comp. Laws 1915, § 4584.
    3. ' Same — Negligence—Governmental Functions.
    And the municipality was not excused because the negligence was that of employees who were performing governmental functions; the statutory duty to repair the highway being applicable as in any case of injuries to the person of one who was lawfully on the street.
    Error to Wayne; Mandell, J.
    Submitted January 5, 1916.
    (Docket No. 28.)
    Decided March 31, 1916.
    Case by Elizabeth A. Cone, administratrix of the estate ¿of Moses H. Cone, deceased, against the city of Detroit for the unlawful killing of plaintiff’s decedent. Judgment for plaintiff. Defendant brings error.
    Affirmed.

      William E. Tarsney, (Harry J. Dingeman and Edmund, Atkinson, of counsel), for appellant.

      Lucking, Helfman, Lucking & Hanlon, 'for appellee.
   Kuhn, J.

The plaintiffs husband was killed by a motor fire truck belonging to the city of Detroit. He was standing in the V-shaped entranceway of a store on Jefferson avenue, in Detroit, when the truck, in charge of firemen in the employ of the city, was being driven rapidly along Jefferson avenue to a fire. At the corner of Griswold street, where there is a curve joining the street car tracks intersecting at that point, the truck ran over a hole in the asphalt pavement which was, roughly, 2 or 3 feet long and 10 to 18 inches wide, and adjacent to the curve. The force of the rebound from the drop into the hole threw the truck from its course, over the curb, and across the sidewalk, against the deceased, who died from the injury in a few hours.

The only issue of fact in the case is over jhe depth of the hole. The evidence of the defendant is actual measurements taken by two witnesses two days later, which showed that the hole was 2% inches deep at the deepest point. The evidence of the plaintiff is estimates of numerous witnesses, using for the purpose such means as a lead pencil, switch bar, shoes, etc., that the hole was about 6 inches deep at the deepest point. The plaintiff charged on this evidence that the injury was caused by the negligence of the city in not keeping its pavement in a state of repair reasonably safe for use and travel, as it is required to do by statute, and this question was submitted to the jury with the conflicting evidence as to the depth of the hole. A verdict was returned for the plaintiff, and judgment entered.

The statute (section 2462, 2 How. Stat. [2d Ed.] ; 1 Comp. Laws 1915, § 4584) upon which liability is predicated reads as follows:

“Any person or persons sustaining bodily injury upon any of the public highways or streets in this State, by reason of neglect to keep such public highways or streets, and all bridges, sidewalks, crosswalks and culverts on the same in reasonable repair, and in condition reasonably safe and fit for travel by the township, village, city or corporation whose corporate authority extends over such public highway, street, bridge, sidewalk, crosswalk or culvert, and whose duty it is to keep the same in reasonable repair, such township, village, city or corporation shall be liable to and shall pay to the person or persons so injured or disabled just damages, to be recovered in an action of trespass on the case before any court of competent jurisdiction.”

It will be noted that the plaintiff’s decedent was not upon the highway at the time he met his death, but was standing' in the doorway of a building abutting thereon. The question of whether liability of the municipality extends to persons who were not upon the highway when injured was not raised in the court below, nor has it been discussed by counsel in their briefs, and therefore will receive no consideration here.

The defendant contends that the court below erred in refusing to direct a verdict in its favor, on the ground that the only proper evidence showed that the hole in the pavement was not of such a depth as to render the street not reasonably safe for travel, because, it is urged, all the testimony of the witnesses for the plaintiff was based on estimates and not actual measurements.

It is strenuously argued by plaintiff’s counsel that the testimony of plaintiff’s witnesses did amount to actual measurements. Be that as it may, we are of the opinion that the instant case does not come within the rule announced in Perkins v. Township of Delaware, 113 Mich. 377 (71 N. W. 643) ; Karrer v. City of Detroit, 142 Mich. 331 (106 N. W. 64) : and Jones v. City of Detroit, 171 Mich. 608 (137 N. W. 513).

In the opinion in the Perkins Case, it is said:

“It is the duty of the plaintiff who seeks to recover damages for negligence to place before the jury the actual condition when it is within his power to do so.”

In the instant case the accident happened on Saturday afternoon, and the man was killed. Within a few days thereafter, according to the unquestioned testimony in the case (some witnesses saying as early as Monday of the following week), repairs were made and the faulty condition of the highway remedied. We do not think the burden should be placed on a plaintiff such as the widow of this deceased person, to make an attempt to find the actual condition immediately upon the death of her husband, when he still remained unburied, in order to be prepared to show the actual condition. It is true that, if this condition existed for some time, and no effort was made by the plaintiff to ascertain what the actual conditions were, it could be claimed that the rule in the Perkins Case should be applied. But, in our opinion, the situation here presented is not within that rule, and the rule should not be enlarged by placing such a burden on a plaintiff under the circumstances disclosed in this record.

It is also argued that the testimony of the city’s witnesses as to the actual measurement was impeached by testimony which showed that along the rail next to the hole in the pavement were three rows of brick four inches in depth, and that the bricks in two of these rows had been removed. It was testified to and also appears from photographs which were offered in evidence that the hole was at' least the depth of the bricks. And it further appeared from the evidence that the rail was some distance, estimated to be two inches, above the top of the pavement; so that from the top of the rail to the bottom of the hole it can. be claimed that there was. a distance of at least six inches. Irrespective of whether it can be claimed that this testimony impeached the testimony of the city’s witnesses as to the measurements, in our opinion, as we have intimated, no such reasonable opportunity was had by the plaintiff to make measurements as to bring her within the ruling in the Perkins Case. We conclude, therefore, that the court was justified in admitting the testimony of witnesses for the plaintiff who testified as to their estimates of the depth of the hole, and in submitting to the jury the question of whether or not, in fact, the hole was of such a depth as to make the city liable for allowing it to remain unrepaired.

It is also argued by counsel for the city that the statute which imposes the obligation upon the municipality to keep and maintain its highways in a condition reasonably safe and fit for public travel should be construed so as to refer only to ordinary vehicles which were in use at the time of the passage of the statute, which at that time were wagons or carriages drawn by horses, and should not be held to apply to automobiles. It cannot now well be disputed that automobiles and automobile trucks are ordinary vehicles. In fact, they have become so ordinary that it is rather unusual to see vehicles which were in use at the time the statute was passed on the streets of a large city like Detroit. It would be a strange conclusion to say that the municipality should not be bound to keep its highways in condition reasonably fit for travel for vehicles which become from time to time the ordinary vehicles of travel.

In the case of Leslie v. City of Grand Rapids, 120 Mich. 28 (78 N. W. 885), it was held that the statute did not require municipalities to so construct their streets and repair them as to secure safety to bicycles, on the theory that the bicycle was not such an ordinary vehicle as was contemplated by the statute. But we do not think that the doctrine should be carried any farther than it was carried in that case, as was said by this court in Lee v. City of Port Huron, 128 Mich. 533 (87 N. W. 637, 55 L. R. A. 308).

It is also contended by counsel for the municipality, relying upon the case of Brink v. City of Grand Rapids, 144 Mich. 472 (108 N. W. 430), that a municipality, in the absence of a statute, is not responsible for' injuries caused by the negligence of its employees engaged in the so-called governmental function.' However, no claim is made by the plaintiff’s counsel in this case because of any such negligence, and the only theory upon which they seek to recover is that the highway was defective.

In Coots v. City of Detroit, 75 Mich. 628 (43 N. W. 17, 5 L. R. A. 315), a fireman, who was the plaintiff, was injured while driving a fire engine to a fire, when the right fore wheel of the engine dropped into a hole in the street. It was held that the statutory duty to keep the street in a condition of repair reasonably safe and fit for travel was a duty which could be invoked in favor of members of the fire department, as well as in favor of the general public. Here the deceased, without any negligence on his part, met his death because the truck struck a hole, because of the defective condition of the street. In our opinion, there cannot be any question that upon this theory the plaintiff was entitled to recover.

We find no error in the record, and judgment must therefore be affirmed.

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


text:
    BAKER v. DELANO.
    1. Railroads — Evidence — Presumptions —• Duty to Stop, Look and Listen.
    Evidence that decedent, a man in good health, with good eyesight and hearing, was struck by a switch engine at defendant's crossing, that there was an electric light over the sidewalk at one side of the crossing which was lighted, and the evening was dark and cloudy, and the view up the tracks was unobstructed for a distance of 500 feet, including also the testimony of eyewitnesses who saw the engine strike decedent, held, to justify the trial court in directing a verdict for defendant.

    2. Evidence — Presumptions—Effect.
    The office or effect of a true presumption is to cast upon the party against whom it works the duty of going forward with evidence: it has the force and effect of a prima facie case and temporarily, at least, relieves the party in whose favor it arises from going forward with the evidence. If nothing further is adduced, it may settle the case in favor of the party for whom it works, and, on the other hand, when the other party has gone forward with his evidence and the prima facie case is overcome, the force of the presumption is spent.
    3. Same — Contributory Negligence — Presumption of Due Care.
    The presumption that a decedent was free from contributory negligence can be said to apply only in cases where there is an absence of any direct evidence to the contrary, the question then being,'Was there evidence before the trial court which could, be said to overcome the presumption relied upon?
    4. Same — Gross Negligence — Subsequent Negligence.
    And where no claim of subsequent or discovered negligence on the part of the intestate was made in the lower court and the lookout had no reason to suppose that decedent would not do as his duty required in stopping, etc., before passing over the track, and there was nothing to show that the crew neglected to stop in time or take precautions to avoid striking decedent, the court committed no error in declining to submit the issue to the jury.
    Error to Wayne; Gage, J., presiding.
    Submitted January 14, 1916.
    (Docket No. 44.)
    Decided March 31, 1916.

      Charles T. Wilkins, for appellant.

      R. G. Lathrop and Smith, Beckwith & Ohlinger (Alexander L. Smith, of counsel), for appellees.
    Case by Effie Baker, as administratrix of the estate of John D. Baker, deceased, against Frederick A. Delano and others, receivers of the Wabash . Railroad Company, a foreign railway corporation, for the unlawful death of plaintiffs decedent. Judgment for defendants on a verdict directed by the court. ■ Plaintiff brings error.
    Affirmed.

       As to duty of pedestrian to stop, look and listen before crossing railroad track, see notes in 17 L. R. A. (N. S.) 505; 46 L. R. A. (N. S.) 702.

   Kuhn, J.

The defendants, as receivers of the Wabash Railroad Company, operate cars, engines, and trains over the company’s double tracks in the city of Detroit in an easterly and westerly direction between West Jefferson avenue and the Detroit river. The tracks cross Twenty-Fourth street, which runs in a northerly and southerly direction, and which crosses Lafayette boulevard and Fort street and West Jefferson avenue and these railway tracks in the order named, and extends to the Detroit river, where there were a dock and slip at the foot of the street.

John D. Baker, the plaintiff’s decedent, on August 12, 1912, was a vessel captain and diver, 52 years of age and in good health, and of good eyesight and hearing. He had spent the day with Capt. Fred Manuel on the latter’s vessel, lying at the dock at the foot of Twenty-Fourth street, where the deceased also had a small yacht lying for repairs. He had supper with Capt. Manuel, and left his boat between 7 and 7:30 o’clock. About 7:30 p. m. he came into John Killakey’s saloon on Twenty-Fourth street, near Lafayette boulevard, to get an envelope, and, not being able to get one there, he went out to get one elsewhere, and came back with it in about 20 minutes, addressed it, and in about 5 minutes went out again. After leaving Killakey’s place about 8 p. m., deceased walked south toward the river on the sidewalk on the east side of Twenty-Fourth street, and, after having crossed the first, or northerly and west-bound, track, and as he was crossing the southerly and east-bound track, he was struck by a Wabash switch engine coming into the city from the west. When the engine stopped, the deceased, still alive, but not conscious, was lying between the north and south tracks, about 30 to 35 feet east of the walk. His injuries were very severe, and although he regained consciousness for a short time, he did not state how the accident occurred, and died before the hospital could be reached.

There was an ordinary electric street light over the sidewalk on the east side of Twenty-Fourth street, which was lighted that night, and there was no obstruction to -his view for 500 feet- westerly along the tracks. There was testimony to show that it was a quiet night, but dark and cloudy.

Four witnesses were sworn who saw the accident, three being sworn on behalf of the plaintiff and one on behalf of the defendant. Witness Arthur Manuel was behind the deceased and about 50 to 75 feet north of the traces, going in the same direction. Witnesses Hoffman and O’Kalahan were south of the tracks, waiting for a friend whom they were expecting to come from the same direction that deceased came from. Witness Burk, sworn on behalf of the defense, was fireman on the engine, and saw the deceased before the engine struck him.

It is the claim of the plaintiff, who brings this action under the survival act, that the engine did not have the headlight lighted, that the bell was not rung, and that the engine was running about 12 miles an hour, in violation of the provisions of the statutes of the State and also of ordinances of the city of Detroit.

At the close of the proofs, the trial judge directed a verdict for the defendant, as he was convinced that under the facts as they were testified to, the deceased was clearly guilty of contributory negligence, and hence the plaintiff could not recover. The only question here for review is whether or not, considering the testimony in the light most favorable to the plaintiff’s claim, the court erred in this regard.

It is the contention of plaintiff’s counsel that the rule announced by this court in Mynning v. Railroad Co., 64 Mich. 93, on page 102 (31 N. W. 147, on page 151; 8 Am. St. Rep. 804), that “the presumption of law is that a person killed at a crossing did stop, and look and listen, and will prevail in the absence of direct testimony on the subject” means that, notwithstanding testimony was introduced on behalf of the defendant by witnesses who saw the accident, the presumption would still remain, and would present a question for a jury to decide. It is insisted that “absence of direct testimony to the contrary” in the rule above quoted refers to direct testimony in support of the plaintiff’s case. We are unable to find that this contention finds support in the decisions of this court. In Adams v. Iron Cliffs Co., 78 Mich. 271, 277 (44 N. W. 270, 272, 18 Am. St. Rep. 441), it was said:

“Where there is no eyewitness of the accident, * •|: * while the rule is not relaxed that the plaintiff must show that his intestate was without fault, yet the presumption, in the absence of any evidence to the contrary, obtains that the deceased used ordinary care and caution in attempting the crossing, and such presumption is sufficient, under the rule, to permit the plaintiff to recover upon showing negligence in the defendant.”

In Van Doorn v. Heap, 160 Mich. 199 (125 N. W. 11), it was said, in speaking of this rule:

“The court evidently overlooked the line of decisions of this and other courts holding that, in the absence of proof tending to show the contrary, where a person is killed by an accident to which there were n’o eyewitnesses, the presumption of the law is that he was in the exercise of due care. Adams v. Iron Cliff's Co., 78 Mich. 277 (44 N. W. 270, 18 Am. St. Rep. 441), and cases cited.”

In Folkmire v. Railways Co., 157 Mich. 159 (121 N. W. 811, 17 Am. & Eng. Ann. Cas. 979), this court said:

“Plaintiff’s counsel urge the rule that we must presume that this woman was not negligent under the rule stated in the following cases: Mynning v. Railroad Co., supra (64 Mich. 98, 31 N. W. 147, 8 Am. St. Rep. 804); Kwiotkowski v. Railway Co., supra (70 Mich. 551, 38 N. W. 463); Adams v. Iron Cliffs Co., 78 Mich. 277 (44 N. W. 270, 18 Am. St. Rep. 441) ; Grostick v. Railroad Co., 90 Mich. 608 (51 N. W. 667) ; Underhill v. Railway Co., 81 Mich. 45 (45 N. W. 508). See Chesapeake, etc., R. Co. v. Steele, 84 Fed. 93, 29 C. C. A. 81, and note. The difficulty is that overwhelming and undisputed evidence shows that she did not stop or even look after reaching a point where either would have done any good, but drove heedlessly upon the track, with the car in plain sight, but a short distance away.”

The witnesses upon which the court relied to sustain this conclusion were witnesses produced by the defendant, as appears by the opinion. See, also, Gilbert v. Railroad Co., 161 Mich. 73, page 79 (125 N. W. 745).

Mr. Elliott, in his work on Evidence, says (Vol. 1):

“Sec. 91. Office and Effect of Presumptions. — The office or effect of a true presumption is to cast upon the party against whom it works the duty of going forward with evidence. It has the force and effect of a prima facie case, and, temporarily at least, relieves the party in whose favor it arises from going forward with the evidence. This would seem to be its sole office and effect, considered merely in its character as a presumption. If nothing further i$. adduced, it may settle the case.in favor of the party for whom it works; and, on the other hand, when the other party has gone forward with his evidence and the prima facie case is overcome, the force of the presumption is spent. It may be directly rebutted by such evidence, or it may be shown thereby that it was never applicable to the particular facts, for it will be found that presumptions are usually very general in their nature, and lose their force and application when the specific facts of the case are shown. They are either based on facts in evidence, as presumptions of fact generally must be, or They presuppose only certain specific and expressed facts/ and the addition of other facts may make the presumption wholly inapplicable. Other rules of substantive law or procedure may apparently give the presumption a different effect, or prescribe that it shall take a certain amount of evidence to overcome it, as, for instance,- the rule of criminal law, requiring guilt to be proved beyond a reasonable doubt, or in the case of conclusive presumptions of law; and so, on the other hand, if mere permissible inferences are to be considered as presumptions, they may not even have the effect of making a prima facie case; but with reference to true presumptions, we think it may be justly said, notwithstanding there is much conflict and confusion in the authorities, that their effect, and their only effect, considered merely as presumptions, is to make a prima facie case, and thus cast upon the other party the burden of going forward with the evidence, if he would not be defeated.”

Also see Wigmore on Evidence, p. 3534, and 2 Best’s Principles of Evidence (Am. Ed.), §§ 298, 299, and note in '33 L. B. A. (N. S.) 1085.

We are of the opinion that it is clear that it is the rule in this State that the presumption that a plaintiff is free from contributory negligence can be said to apply only in cases where there is an absence of any direct evidence to the contrary. The question then is, Was there evidence before the trial judge which could be said to overcome the presumption relied upon? Witness Arthur Manuel testified:

“When we got within 75 or 100 feet of the crossing, I stopped awhile and looked, and Baker was about 50 to 75 feet ahead of me, about that distance from the railroad track. I was looking down towards the boat when this switch engine came through there without taking notice of him at all, and struck Baker on the crossing. I saw it strike him. My attention was first called to the switch engine when it passed me, as I was looking towards my uncle’s boat; that is, the river. I saw the lights on the boat, was watching them some distance before that, and the engine came across and obstructed my view, and I saw it strike Baker. I never saw anything of the engine until it crossed Twenty-Fourth street. There was no bell rung. There was no headlight on the switch engine. I didn’t notice it making any noise as it came down. Baker, when the engine struck him, was on the sidewalk crossing, going across the tracks, the last track, the south track, the south side.”

Witness Hoffman testified:

“I saw Capt. Baker struck that night, and saw him before he was struck, walking down Twenty-Fourth street on the east side of the road. I did not see any engine coming on the Wabash tracks from the west. The first I knew of an engine coming was when they passed the crossing. I seen it after it got past. It was a switch pony engine. The first time I saw Baker he was going down Twenty-Fourth street. I looked again, and I didn’t see him! He disappeared after the engine passed. I said, T wonder where that fellow went to.’ I thought it was a friend of mine coming down there. I expected a friend to come down there, and was looking for him, and I took this to be my friend. I was not listening; I was looking for this friend at that time. The engine came up and the person disappeared, and I says to my friend, ‘I guess that fellow must have got on that engine.’ He says, ‘No; he could not get on the engine, it was going too fast’; and we looked up the track, and w.e saw somebody lying in the middle of the track.”

Witness O’Kalahan testified:

“I saw Capt. Baker coming south on the east side of Twenty-Fourth street, about 10 or 15 feet north of the railroad track when I first saw him. I didn’t see any engine, then. I first saw an engine when it flashed across the crossing. Capt. Baker just got down there. I noticed as soon as the engine passed there was nobody there. I didn’t see the engine before I saw it. pass. There wasn’t any whistle blown, or any bell rung. I didn’t see any light. As soon as I didn’t see Mr. Baker, I ran over to the tracks. * * * I was standing with my friend Hoffman. I don’t know as we were talking just at that moment or not. We had been talking, and were waiting for a friend to come to meet us. We expected our friend to come down Twenty-Fourth street, and were looking for him in that direction. We were looking right up the street, in general up towards the north. We were not looking 'towards the west, in the direction from which the engine came. We didn’t know who it was coming down Twenty-Fourth street, but saw a man coming, and found it to be Capt. Baker afterwards. It was so you could see.”

Witness Burk testified:

“We were running between 5 and 10 miles an hour as we approached the crossing. I expected him to stop as anybody would. We were going along very quiet; we just passed the boulevard crossing to the west of Twenty-Fourth street — I should judge about 500 feet — and I saw a man coming down the east side of Twenty-Fourth street. There was an electric light there upon the walk, and I could see the figure of a man. He was coming down straight towards the track. When we were in a straight line with Twenty-Fourth street, he was upon the west-bound main line, that is, the north track, and just about the time we got to the walk, he went in front of the engine. I hollered at him just about the time he hit the pilot beam; it was just a fraction of a second after I hollered he was in front of the engine. He didn’t look towards the engine. He went straight ahead. He didn’t stop at all. After he was struck, the engine went the length of the engine, about 50 feet.”

We are of the opinion that this testimony makes it clear that there were eyewitnesses of the accident who were able to, and did, give “direct testimony on the subject,” and that consequently, under the authorities above cited, the presumption relied upon by the plaintiff was removed. This testimony also makes the conclusion irresistible that if the deceased had stopped, looked, and listened, it would have been a physical impossibility for him not to have been aware of the approach of the engine, no matter whether the bell was being rung or the lights were burning. There was no obstruction to his view for 500 feet along the tracks in the direction from which the engine was coming. A stop for a moment, or a momentary glance, would have apprised him of the danger. We see no escape from the conclusion that the circuit judge was clearly right in holding that the deceased was guilty of contributory negligence.

The case of Amanta v. Railroad Co., 177 Mich. 280 (148 N. W. 76), cited by the plaintiff, is easily distinguishable, for there the plaintiff testified that he stopped, looked, and listened before going upon the tracks, but because of the noise of two other trains which had just passed, and because of the dirt, smoke, and steam caused by these trains, he was unable to see the approaching locomotive, running backward without any lights. It was held that this presented such a condition as would warrant the submission of the question of contributory negligence to the jury. In this case, however, it appears that it was not so dark but that his own witnesses saw him at distances varying from 50 to 75 feet, and that the fireman saw him approaching the tracks at a distance of 500 feet. Clearly, if theseJ witnesses saw Baker, Baker would have seen the engine if he had looked. It being a quiet night, it also seems most improbable that he would not have heard it if he had listened.

It is also contended that the question of gross or subsequent negligence should have been submitted to the jury. No such claim was made in the court below, and in the case of Weitzel v. Railway, 186 Mich. 7 (153 N. W. 831), relied upon, it clearly appeared that the question was considered by the trial judge. Neither, in our opinion, does the evidence warrant the submission of any such claim. The fireman had no reason to suppose that the deceased would not do as the law required him to do, viz., stop, look, and listen before going upon the tracks, and there is nothing to show that everything was not done by the crew of the engine to stop it after the man’s peril was discovered.

Being satisfied that the trial judge properly directed a verdict for the defendant upon the evidence before him, judgment is affirmed.

Stone, C. J., and Bird, Moore, Steere, Brooke, and Person, JJ., concurred. Ostrander, J., did not sit.