text:
    LOCKLUND v. BURMAN’S ESTATE.
    Witnesses — Competency — Transactions With Person Since Deceased.
    The agent of the payee of a note who received and indorsed a payment thereon, relied upon to renew the period of limitations, cannot testify to such fact in support of a claim against the estate of the maker of the note after his death (Act No. 30, Pub. Acts 1903).
    Error to Wexford; Chittenden, J.
    Submitted October 18, 1906.
    (Docket No. 98.)
    Decided October 29, 1906.
    Magnus Locklund presented a claim against the estate of Axel Gr. Burman, deceased, for the amount of a promissory note. The claim was disallowed in the probate court, and claimant appealed to the circuit court. There was judgment for claimant, and defendant brings error.
    Reversed.
    2/7. F. Sawyer, for appellant.

      Charles Line, for appellee.
   Moore, J.

Mr. Burman died February 11,1905. The plaintiff presented, as a claim against the estate of Mr. Burman, a note for $308, dated May 14, 189?, payable on demand. There was on the back of the note the following indorsement:

“ Received on the within note the sum of twenty-five dollars, this 13th day of April, 1903.

“Magnus Locklund.

“ By John Locklund,

“ His agent and attorney in fact.”

The case was appealed to the circuit court where the judge directed a verdict for the plaintiff. Upon the trial it appeared that John Locklund had a written power of attorney authorizing him, among other things, to receive and collect all debts due the plaintiff. It is claimed that, by virtue of such authority, John Locklund received from Mr. Burman $25, and at the same time made the indorsement on the note. The attorney for defendant discredits this claim. John Locklund testified to making the collection and indorsement. They were not shown in any other way. This testimony was objected to because, in making the collection and indorsement, John Locklund was acting as the agent of his brother, and was therefore incompetent to testify, as Mr. Burman was dead. Counsel are agreed that the only question involved is .whether it was error to receive this testimony. The statute, so far as is important here, Act No. 30 of the Public Acts of 1903, reads:

“No person who shall have acted as an agent in the making or continuing of a contract with any person who may have died, shall be a competent witness in any suit involving such contract, as to matters occurring prior to the death of such decedent, on behalf of the principal to such contract against the legal representatives or heirs of such decedent, unless he shall be called by such heirs or legal representatives.”

Counsel for the appellee insists, and the learned trial judge entertained the same opinion, that the statute does not apply to this case. We quote from the brief:

“If John Locklund, agent and attorney of Magnus Locklund, the plaintiff in this case, made a new contract with Mr. Burman, the deceased,- on behalf of the plaintiff, or did some act which continued an existing contract between the plaintiff and the deceased, he certainly would be barred from testifying, but I contend that he did neither of these two acts. He certainly made no new contract in receiving a payment on the promissory note and he did not continue an existing contract because, without the payment, it would have continued in force for a period of one year and over.”

We do not agree with counsel. It is true that at the time it is claimed the payment was made, the statute of limitations had upwards of a year to run before the note would be outlawed. It is equally true that at the time the note was presented as a claim against the estate, more than six years had elapsed since the note came due, and unless the payment about which John Locklund testified had the effect of continuing the original contract the statute of limitations could be successfully pleaded at the time the note was presented as a claim. Had Mr. Bur-man made the payment to Magnus Locklund no one would claim the latter could testify. The payment not having been made to the principal but to his agent, is it not clear the agent is also disqualified from testifying ? We think John Locklund was prohibited by the statute from testifying to those things which were within the knowledge of Mr. Burman. The case is controlled by the principles stated in Michels v. Underwriters’ Ass’n, 129 Mich. 422; De Mary v. Burtenshaw’s Estate, 131 Mich. 328; Gustafson v. Eger, 132 Mich. 388; Wood v. Kaufman, 135 Mich. 6; Albring v. Ward, 137 Mich. 352; Finn v. Sowders’ Estate, 139 Mich. 623.

Judgment is reversed, and new trial ordered.

Carpenter, C. J., and McAlvay, Grant, and Blair, JJ., concurred.


source: Caselaw Access Project

author: McAlvay, J.

license: Public Domain

text:
    LIVINGSTONE v. SAGINAW PLATE GLASS CO.
    1. Master and Servant — Safe Plage to Work — Duty of Master.
    The doctrine that it is the duty of the master to furnish the servant with a safe place to work, has no application to a case in which a servant is injured by the frozen crust -of a sand pile breaking off after being undermined by the servant and his fellows in conveying the sand in wheelbarrows into the master’s factory.
    2. Same — Assumption of Risk.
    The danger of injury by the breaking off of the frozen crust of a sand pile, on being undermined in the process of conveying the sand away in wheelbarrows, is so obvious that it is assumed by a workman of ordinary intelligence performing such labor.
    3, Same — Failure to Supply Lights — Fellow-Servants.
    Where a master has employed an electrician, and furnished abundant supplies of wire and lamps to place lights where needed, and torches for the use of his servants, the servants intrusted with the duty of placing or supplying lights are fellow-servants of the. ordinary laborers about the master’s factory, for whose negligence in failing to place lights the master is not liable to a laborer injured by reason of such neglect.
    Error to Saginaw; Beach, J.
    Submitted January 9, 1906.
    (Docket No. 39.)
    Decided November 7, 1906.
    Case by Miles A. Livingstone against the Saginaw Plate Glass Company for personal injuries. There was judgment for plaintiff, and defendant brings error.
    Reversed, and no new trial ordered.

      Humphrey, Grant & Smith, for appellant.

      Eugene Wilber and Fred L. Eaton, for appellee.
   McAlvay, J.

Plaintiff brought this action against defendant for personal injuries claimed to have been sustained while working for defendant on January 14, 1904. Defendant is a corporation engaged in the business of manufacturing- plate glass. at Saginaw. Plaintiff, at the time the injury occurred, was engaged in wheeling sand into the grinding department of defendant’s factory. He had been employed by the night foreman. There was a day foreman and a night foreman for this department. Each had authority to hire and discharge men, and they both worked with their men. This factory consisted of five departments, with a foreman in each department. There was a superintendent of the factory and a general manager over all of them. About 250 men were employed. Plaintiff, on January 14th, a little before 6 o’clock in the afternoon, applied at the grinding shed to the night foreman for a job at night work. He had previously worked for defendant in another department at night work from October, 1902, to August, 1903. He was told to wait a few minutes until it could be ascertained whether there was a vacancy, and, if so, he could have work. The foreman returned soon and told him to come with him. He gave him a wheelbarrow, took .him outside of the factory, showed him a sand pile that was out there, and told him to go to work wheeling sandfrom that pile into the grinding room. At the time the plaintiff went to work it was dark. The sand pile where plaintiff was to perform his work was about 65 feet from the factory door. It had been hauled in on cars and shoveled off, making a long pile, which was about 10 to 14 feet high at the center and spread out at the sides to a width of about 30 feet on the ground. At the time of the accident it was 150 to 250 feet long east and west along the factory. The weather had been very cold, and the sand was frozen on the outside, making a crust of from 1£ to 2 feet in thickness. This sand had been hauled during the autumn before and was enough for the winter season. The men had been at work taking sand from this pile for several weeks. They worked from the end nearest the factory door and were expected to take the sand clean as they worked. The end at which the work was carried on was not frozen. The sand was shoveled upon wheelbarrows and then wheeled by the workmen along planks laid down for a track into the grinding department. As the work progressed the sand would run down, as it was taken away from the bottom at the end, and leave the. frozen crust overhanging at the top. It was necessary for the workmen to break this crust off with a pick. If left to overhang too much, it would break off of its own weight in large pieces and slide down the front. Two men worked at this sand pile during the day and two during the night. The night shift went to work at 6 o’clock p. m. At this date there was snow on the ground. As to whether there was light enough at the time plaintiff went to work, and while he continued at this work, to enable him to see sufficiently to observe his surroundings, is a matter in dispute. There was another smaller pile of lake sand, from which the men, as directed by the grinders, would occasionally bring a barrow of sand as it was required. Plaintiff had worked about 3£ hours wheeling sand, when, while at this large pile getting a load, a large piece of the frozen sand broke off from the top and, sliding down the front of the pile, struck him and broke his leg. For this injury suit was brought.

The negligence of defendant claimed in the declaration was:

1. The failure to furnish sufficient lights.

3. The failure to furnish a safe place in which plaintiff was to work.

3. The failure to inform plaintiff, when put to work, of the condition of the sand pile and the danger to which he was exposed.

Plaintiff obtained a judgment, and defendant brings the case to this court for review.' The case was tried and submitted by the court to the jury practically upon the theory of the plaintiff as set forth in his declaration. Defendant insisted in the trial court, and insists here, that the injury which plaintiff received was the result of one of the ordinary risks of his employment, which he assumed by entering upon the work, and that the well-known rule requiring the master to provide a safe place for the servant to work has no application to this case.

Defendant requested the court to charge the jury as follows :

‘ ‘ The work in wnich the plaintiff was engaged at the time of the accident was the simplest kind of manual labor, and was not attended by any danger which was not within the comprehension of any person of ordinary intelligence. The condition of the weather was, and had been for some time, such that the plaintiff knew, or ought to Lave known, that the outer surface of the sand pile was-frozen. He also knew that, if he dug sand out from the bottom of the pile, the sand above, whether loose or frozen, would break off and fall down. The plaintiff being chargeable with the knowledge of all these facts when he entered upon the work, he assumed all risks of injury to himself growing out of these conditions. He required no instruction from any one to enable him to guard against them. He knew, as well as the defendant or any of its officers or agents, just what dangers attended this work, and he knew, as well as they did, whether the lights which were furnished were sufficient to enable him to see the situation and protect himself against such danger. The risk growing out of insufficient lights can be assumed by an employe just like any other risk, and I charge you that under the undisputed evidence in this case all of the risks connected with'plaintiff’s employment which resulted in the injury to him, including the alleged insufficiency of lights, were assumed by him, and hence he cannot recover in this action, and you will render a verdict for the defendant of no cause of action.

I'charge you that the men on the day shift, who were working on the sand pile during the daytime of the day when plaintiff was injured, were the fellow-servants of the ■plaintiff, and if they left the sand pile in a dangerous condition as the result of the negligent manner in which they did their work, and plaintiff’s injury resulted therefrom, that was the negligence of a fellow-servant of the plaintiff, for which the defendant is not responsible.

‘ ‘ I charge you that the foreman, Charles Lewellen, in respect to all the matters complained of as negligence in this case, was the fellow-servant of the plaintiff, and, if he was negligent in any of the matters complained of, the defendant is not liable to the plaintiff therefor.

“Under the evidence in this case the furnishing of lights to light the sand, pile was but an incident to the prosecution of the work in which plaintiff was engaged, and was in charge of the fellow-servants of the plaintiff, and any neglect to furnish or use sufficient lights was the neglect of such fellow-servants, for which the defendant is not responsible in this case.”

All of which requests the court refused to give, and to which refusal the defendant thereupon duly excepted.

In order to determine whether the court was in error in refusing these requests, we must consider whether the doctrine of safe place to work applies to this case, and whether the plaintiff’s injury was the result of one of the ordinary risks of the employment assumed by him. The work at which plaintiff was employed was in the open air, and not within any structure furnished by defendant. It was of the simplest and most ordinary character, performed with tools under no circumstances dangerous. There was no danger whatever in doing this work, except such as arose during the progress of the work as a necessary incident of the work itself, which was being performed by plaintiff and his fellow-servants. If any danger arose, it came through the prosecution of the work, and not through the condition of the place furnished by the master in which to work. Petaja v. Mining Co., 106 Mich. 463 (32 L. R. A. 435); Beesley v. F. W. Wheeler & Co., 103 Mich. 196 (27. L. R. A. 266); Miller v. Thomas, 15 App. Div. (N. Y.) 105. In this case the place was not furnished as in any sense a permanent place of work, but was a place in which the surrounding conditions were constantly changing. The rule of a safe place to be furnished by the master, therefore, does not apply. Plaintiff was a man 47 years of age. He had worked as a carpenter for many years, and had also worked in different kinds of business accompanied by danger, where it was necessary for him to be very careful. He had shortly before this accident worked on a paving contract until the severe cold compelled suspension of the work. He knew that the weather was extremely cold and that the ground was frozen. He must be held chargeable with the knowledge that a sand pile lying out of doors was frozen and that digging into such pile would remove the support from the frozen crust. A master is not required to give warning of danger apparent and readily comprehended to a servant of ordinary intelligence and years of discretion. Welch v. Brainard, 108 Mich. 38. The injury resulted from one of the ordinary risks of his employment, assumed by him when he entered upon his work. Miller v. Thomas, supra, and cases cited. The danger in this case was one created by the servants of defendant in the prosecution of the work, in all probability partly before and partly during the time in which plaintiff himself was at work. Whether the condition was created before or after the plaintiff entered upon the common employment does not affect the question of defendant’s liability. The risk was one incident to the common employment and was assumed by the employé. Dresser on Employers’ Liability, § 90; Hoar v. Merritt, 62 Mich. 386.

Plaintiff’s principal contention is. that defendant was negligent in not furnishing sufficient lights; that if plaintiff had been put at work in the daytime he would have assumed all apparent risks, or risks which might have been known by the use of ordinary care and prudence, but, having been put to work when there was not sufficient light to observe his surroundings, he cannot be held to have assumed risks of which he had no knowledge. If the danger was one incident to the employment and the state of the weather, of which he is presumed to take notice, it was the duty of the plaintiff to observe his surroundings and inform himself of the condition of the sand pile when he went to work, and to keep himself informed of its changed condition while the work progressed. The wsork, progressing steadily night and day, produced a constant changing of the place where the lights would be required. Lights would be necessary only where the men were at work at the sand pile. There was no duty resting upon defendant to light the entire premises. The necessity for lights at any particular place was then an incident to the business. There was a light inside the building. Provision had been made outside the building by an electric light on a post. It is not claimed but that this gave ample light at and about the entrance to the factory. Defendant employed an electrician, with abundant supplies of wire and lamps to place lights where required. There was also a supply of torches for the use of the men. The workmen at the sand pile knew whether lamps or torches were necessary at the place of work that night. If such lights were not asked for that night, or were not furnished, such neglect cannot be charged to defendant. Competent servants had been employed, and ample provision made for lighting by electricity and torches on the part of defendant, and those servants intrusted with the duty of placing or supplying lights so furnished were fellow-servants of the plaintiff. For a discussion of the principles involved, see cases cited supra, and authorities cited and discussed in those cases.

The contention of the defendant as to the law controlling this case was correct. The court was in error in refusing to give the above requests. It is not necessary to discuss other assignments of error.

The judgment is reversed, and no new trial ordered.

Grant, Blair, Montgomery, and Ostrander, JJ., concurred.


author: Blair, J. Hooker, J.

text:
    O’LEARY v. MICHIGAN STATE TELEPHONE CO.
    1. Negligence — Children—Trespassers—Attractive Dangers.
    A child of the age of seven years is not a trespasser, and as such barred of recovery for an injury resulting from his having his hands caught in a pulley block, fastened to a post in the street, and being operated intermittently by a team and men more than a block away.
    2. Same — Question for Jury.
    Whether a telephone company, whose servants were engaged in stringing a cable on poles in a street, was negligent in leaving a large pulley block unattended while it was being intermittently operated by a team and men more than a block away, the servants having notice that children were in the vioinity and attracted by the appliances, held, properly submitted to the jury.
    3. Same — Contributory Negligence — Question for Jury.
    Whether a child of the age of seven years was guilty of contributory negligence in meddling with a pulley block, left unattended in the street, while being intermittently operated by a team and men more than a block away, held, a question for the jury.
    Hooker and Grant JJ., dissenting.
    Error to Kent; Wolcott, J.
    Submitted February 7, 1906.
    (Docket No. 103.)
    Decided November 7, 1906.
    Case by William F. O’Leary, by next friend, against the Michigan State Telephone Company, for personal injuries. There was judgment for plaintiff, and defendant brings error.
    Affirmed.

      William, E. Thompson {Elliott G. Stevenson and Leo M. Butzel, of counsel), for appellant.

      Carroll, Kirwin & Hollway, for appellee.
   Blair, J.

On the 5th of November, 1904, the plaintiff, who was a child of the age of seven years, was, with other children, playing in and about Gold street, in the city of Grand Rapids, in front of, and near, his father’s house. While so engaged thdy saw a wagon of the defendant, upon which were a number of employés, turn from Bridge street and drive south on Gold street and stop at a post standing on the west side of the street. The men proceeded to unload and throw upon the ground reels, ropes, snatch blocks, and other equipment, preparing to string a cable on poles standing in Gold street from Bridge street south to Butterworth avenue. This post was adjacent to the sidewalk, and was used as a guy stub or anchor post, to the bottom of which the snatch block was attached. This post stood 50 or 60 feet south of Bridge street, between two and three feet from the sidewalk, and between the sidewalk and the curb. The. plaintiff and the other children crossed the street, and, while the men were at work about the guy stub or anchor post, they proceeded to roll the reel upon which had been wound the lead rope, and push it around in the street. They had rolled this reel up by the sidewalk and had been playing with it about 20 minutes, when Mr. McCarthy, one of defendant’s employés, came along, took it away from them, and stood it on end by the sidewalk. Mr. McCarthy testified that :

“When we first drove up where the anchor post is there was some children there; they were on the wagon when I first' noticed them, around where we were unloading the stuff. The plaintiff in this case was one of them, and there was three or four others. After we had the lead rope up and had taken it off the reel, we started to pull in the cable. When we were stringing out the rope, they were around in our way and under our feet a little, and I told them to keep away from there. At the time I told the children this, they were pulling on the rope first when I told them to keep away, and' the next time I told them to get away from there they were rolling the reel around in the road. When I said, * pulling the rope ’ I meant the ‘ reel. ’ ”

Mr. McCarthy further testified that when he started to take the reel away from the children they ran across the street and stood on the sidewalk and laughed at him. When he said he would get them if he caught them around there, they laughed and seemed to take it as fun. This was before the snatch block was put in place at the bottom of the anchor post, and nothing was said to the plaintiff or the other children at any time after the snatch block was put on the rope, although they were in the street •across the way playing about there.

This snatch block was á large appliance eight inches in diameter, made of iron and wood, with a hook fastened to the post. It had one removable side with a clasp to it, and in the center is a large pulley inclosed and encased in the frame. The pulley was on a swivel and the rope passed over the top of the pulley and came out underneath, and to' the end of which was hitched the team. There was thus a circuit of the cable and rope, and as the team moved south on Gold street from the anchor post, the rope passed through the snatch block over the pulley, and thus the cable was elevated upon the cross-arms of the poles and moved to the north as the team moved south. There was no guard or other protection on the snatch block to prevent a person’s hand from going into it with the rope, and a hand could go in where the rope would. As the team went south on Gold street, the employes of the defendant took positions on the poles, as it was necessary for a man to be on each pole to free the cable clips that would catch on the cross-arms as the cable moved. Mr. McCarthy went ahead of the team as it went south on Gold street, watching for signals from the men on the poles, and Mr. McCue, another employé, stood on the corner of Gold and Bowery streets, nearly a block from the snatch block and anchor post, to guard that crossing. The latter was the nearest man to the snatch block at the time the plaintiff was injured. Frequent stops were necessary as the cable was being strung, on account of the cable clips catching, though the longest of these stops were about four or five minutes.

While this work was in progress, the snatch block was left entirely unguarded and unprotected and no one stationed at or near it to warn plaintiff and the other children or any one else of danger; Mr. McCue, the nearest employé to the snatch block, being at the corner of Gold and Bowery streets, a block distant. The pulley in the snatch block revolved rapidly, when the team was. in motion, and, the, pulley and block being dry, made a squeaking noise as the rope passed around it, which frightened-Mr. Timmer’s horse- and attracted the attention of the plaintiff and his little companion, who were across the street, and they came over to the snatch block to look at the pulley revolving (or, as the plaintiff called it, “the wheel”), the moving rope, and the other strange equipment, and also to see what caused the noise. They reached the snatch block at a time when the team was standing still, and, presumably, during one of the frequent stops caused by the cable clips catching, for at that time the rope was not moving, but standing still, and they began playing with it. Plaintiff, being the larger of the two, had hold of the top rope or the. one passing into the snatch block, while the Rybrick child had hold of the rope which moved from the snatch block when the team was in motion. The place where they had hold of the rope was about 18 inches from the snatch block, and, while so playing, the employes of the defendant, without notice or warning to the plaintiff, and, in fact, without paying any attention at all to the snatch block, suddenly started up the team, and, in a short period of time, about as long as it would take the team to travel 18 inches along Gold street or take one step, the plaintiff’s hands were drawn into the snatch block and crushed. The trial judge submitted the case to the jury, plaintiff recovered judgment, and defendant appeals to this court.

The defense, at the close of the plaintiff’s proofs, at the close of the testimony, and, in this court, relies upon the defense that the case as made by the plaintiff was not sufficient in law to entitle him to have the same submitted to the jury, but that it was established from the proofs as a matter of law:

(1) That the defendant was not negligent.

(2) That the plaintiff was guilty of contributory negligence.

(3) That the plaintiff was a trespasser.

We shall consider first whether plaintiff was a trespasser, as contended by appellant, citing Kaumeier v. Railway Co., 116 Mich. 307 (40 L. R. A. 385); Ryan v. Towar, 128 Mich. 468 (55 L. R. A. 310), and other cases. We do not think this case is ruled by the cases cited, but that it falls within the principle of Powers v. Harlow, 53 Mich. 507. That case was not overruled by Ryan v. Towar, but was distinguished in the majority opinion, the writer saying:

“But in that case the child was not a trespasser on the land whatever may be said of his meddling with the explosives.”

The case of Powers v. Harlow is an authority in this State, and is supported by the great weight of authority in this country and in England. The present case differs from Kaumeier v. Railway Co. and other cases cited in appellant’s brief in that here the owner of the property was present, operating the property, and the plaintiff was where he had a right to be. The plaintiff was in the public highway, where he had as much right to be as defendants employes, and while his laying his hand upon the cable was technically a trespass, it was no more so than taking the exploder cap from the box in the case of Powers v. Harlow. Plaintiff’s mere technical trespass did not set in motion, as in the cases cited, the agencies which caused his injury; those agencies were brought into operation and controlled by defendant’s employés. There is reasonable ground for distinction between a case where something is left in the highway which can only injure a child by his meddling with it and putting it into operation in the absence of the owner or person having it in charge and a case like the present when the owner is present operating the apparatus and has actual notice that the children are attracted by the tackle and will play with it unless prevented.

The questions of negligence and contributory negligence were properly submitted to the jury. The age of the plaintiff has an important bearing upon both questions. Defendant’s employes knew that the children were attracted by, and disposed to play with, the apparatus, since they had been playing with the reel which McCarthy had taken away from them, and then chased them across the street. Notwithstanding this, the children came back again.

“Q. It was not a part of your duties to watch them or to watch that snatch block, was it ?

“A. Yes; it was in a way; I was supposed to look for trouble of any kind that was there.

“Q. You would not very well do that when facing the other way and looking for the work ahead of you ?

“A. Of course, after we got started pulling, then I was supposed to look ahead. * * * I warned Willie to keep away from the reel. I warned him myself once after we got started with the rope, him and another boy. There were two boys with hands on the rope and I told them to keep away from there after they started to string the cable. * * * It was after the team started. The boys were playing on the rope. They were about 28 feet or 30 ahead of the snatch block. They were behind me. They were jumping on the rope a little and I told them to go away, and they went away and that was the last I saw of them. We had started when I warned the boys.

Q. Now, after you started to string this cable, how many times did you have occasion to go back or look around towards the snatch block before you got to Bowery street ?

A. I did not go back at all when I looked around. When I first warned him, Willie went away and I did not see him until he got ‘ catched.’ I told him to keep away and they went away the time they were told. I had in mind the danger of a break in the rope, as the rope breaks once in a while and there is danger if there is anybody on it. I did not direct their attention in any way to the block or the danger of the block. I never saw them near the block. They were^on the.rope.”

It was for the jury to say whether, under the circumstances, the defendant’s employes were not negligent in leaving the block unguarded and in not giving the children a proper warning of the danger of playing with the rope and in taking no precautions to ascertain whether the children had returned. It was also for the jury to say whether the plaintiff had sufficient warning of or sufficient understanding of the danger to render him guilty of contributory negligence.

The judgment is affirmed.

Carpenter, C. J., and McAlvay, Montgomery, Ostrander, and Moore, JJ., concurred with Blair, J.

Hooker, J.

(dissenting). The judgment rendered in this action was in favor of an infant, who, at the time of the injury for which he sued, was seven years of age. The defendant’s construction gang was engaged in stringing a trolley wire, using a block or pulley, through which a rope ran, when the wire was being drawn forward, the power being applied by a team attached to the end of the rope, the team, at the time of the accident, being some distance from the block. The child meddled with the rope, and his hand was drawn into the block and crushed. Three important questions are raised:

(1) Was it negligence on the part of the defendant to use this apparatus without stationing a guard at the block to prevent intermeddling by children ?

(2) Was the child a trespasser in meddling with the ■ rope and block, and therefore not entitled to recover ?

(3) Was the child guilty of contributory negligence ?

It is contended by the defendant’s counsel, that the undisputed testimony entitled him to a verdict by direction of the court upon each and all of said grounds. We understand that the defendant’s right to use the appliances referred to on the highway is not disputed, and, on the other hand, no question seems to have been made over the plaintiff’s right to use the street for a place to play, and the controversy is narrowed to the question raised in the “Turntable Cases,” viz., must one using the highway for lawful purposes take into consideration the propensities of mankind to meddle, and exercise increased diligence to prevent injury to such intermeddlers with his property ? There is nothing in the record to indicate that the appliance would have injured any one but a meddler, and an adult plaintiff who should have done what this plaintiff did, would, if injured, have been denied relief, upon the ground that he was a trespasser. This proposition is elementary and heeds no amplification. At the furthest, only ordinary care is due a trespasser.

The plaintiff’s counsel contend, however, that the fact that this was a place frequented by children (as all city streets are) made it a duty of the defendant to take extraordinary care to prevent, not an injury from the appliance itself, or its proper use, but an injury from intermeddling with it, by the injured party, and, as usual in such cases, the claim is rested upon the theory that, the appliance being one naturally attractive to children, there was an implied license to them to meddle with it, or, if not that, at least 'there was a duty on the part of the owner to station a guard to prevent intermeddling by children. It may be safely conceded that children would be likely to be attracted by any object that is being used, or that had been left in the highway, but we should be slow to conclude that the multitude of things that are so used or left in the highway must always be guarded. The time will probably never come when children will cease climbing upon wagons, catching upon bob sleds, and examining and handling any and all machinery which they can approach, or getting dangerously near to horses and other animals left in the street. It has never been the rule, however, that a driver cannot leave his team, or must reduce its pace to a walk, lest some boy get hurt through intermeddling with it, and it would be a great hardship if owners were compelled to forego the leaving of a horse at the curb, or provide a guard. Yet we are asked to say that this defendant should have stationed a guard to perform the duty which the parent owes. That there are some cases from which such a claim is a logical deduction cannot be denied, and of these the “ Turntable Gases,” so called, are the principal ones. Eliminate those cases, and a few others based upon them, and there will be little support for the claim left. This subject has been discussed in Byan v. Towar, 128 Mich. 463 (55 L. R. A. 310), where we endeavored to show the fallacy of the reasoning of the “ Turntable Cases,” and distinctly declined to follow the rule laid down in them. We there cited several cases in which courts of the older States had refused to follow the rule, and since that decision was made several others have done so.

Counsel, however, urge that we recognize an alleged distinction between Ryan v. Towar and the present case. They say that Ryan v. Towar was a case where the injury occurred on private premises, and not upon a highway, and they also insist that the fact that this or other boys had been seen in the vicinity by defendant’s servants made vigilance a duty. We are of the opinion that one who meddles with the appliances of another in the highway is a trespasser as much as one who does it elsewhere, and, if an injury results by reason of the trespass, he is remediless in either case. That is the doctrine in this State under repeated decisions, most of which will be found cited in the Towar Case. Hargreaves v. Deacon, 25 Mich. 1, announces the doctrine as to real estate, where Mr. Justice Campbell said:

“If, for example, a grown person coming upon the premises simply by the permission of the occupants had fallen into this cistern without any negligence, by stepping where there was no apparent danger, he would in law have stood just where this child did. The injury might have happened, as in Fisher v. Thirkell, 21 Mich. 1, from the insecurity of an apparently safe covering. We have searched diligently, and perhaps a little anxiously, to find legal support for a distinction, but there is no foundation for any in law, and we think there is none in any reason which should govern the action of courts of justice.”

See Grunst v. Railway Co., 109 Mich. 345, where the language of Mr. Justice Campbell is quoted with approval by Mr. Justice Montgomery. Bledsoe v. Railway Co., 126 Mich. 315; Formall v. Standard Oil Co., 127 Mich. 496. These cases and others sustain the doctrine that a trespasser cannot require diligence upon the part of the person upon whose property he trespasses. In Kaumeier v. Railway Co., 116 Mich. 307 (40 L. R. A. 385), we applied the rule to a case where a car was left on a switch, without blocking,- in a public highway, and held that the plaintiff was a trespasser in attempting to use the car.

It is unnecessary to hold in this cause that in no case can a trespasser recover for an injury, and there may be cases where the presence and conduct of children, known to a defendant, may call for a warning and perhaps more. Upon that question we express no opinion further than to say that the evidence in this case does not warrant such a conclusion. There is no evidence of negligence of any duty owing to this plaintiff. In Holbrook v. Aldrich, 168 Mass. 15, it was said by Mr. Justice Holmes in a case where a child, while in a shop with her father who was making a purchase, meddled with, and was hurt in, a coffee mill therein:

‘.‘We are of opinion that the direction was right. If the decision were to be put on the narrowest possible ground, it might be said that, at the moment of the accident, the plaintiff was not within the scope of the defendants’ implied invitation, and therefore was entitled to no protection against such possibilities of harm to herself. But even if she had been buying coffee, we should regard the rule as the same. The defendants’ invitation in that case would have bound them to due care for the safety of those walking in the neighborhood while simply moving about. But it would not have bound them to look out for, or to prevent, wrongful acts, on the ground that the acts, if done, might hurt the actor. Temptation is not always invitation. As the common law is understood by the most competent authorities, it does not excuse a trespass because there is a temptation to commit it, or hold property owners bound to contemplate the infraction of property rights because the .temptation to untrained minds to infringe them might have been foreseen. McEachern v. Railroad Co., 150 Mass. 515; Daniels v. Railroad Co., 154 Mass. 349 (13 L. R. A. 248); Gay v. Railway Co., 159 Mass. 238 (21 L. R. A. 448). The'* case is similar in principle to McGuiness v. Butler, 159 Mass. 233, and to Mangan v. Atterton, L. R. 1 Exch. 239, which, notwithstanding the observations in Clark v. Chambers, L. R. 3 Q. B. Div. 327, has been cited in this Commonwealth repeatedly as unquestioned law. See, also, Hughes v. Macfie, 2 Hurl. & C. 744. In Moynihan v. Whidden, 143 Mass. 287, which would have to yield to McGuiness v. Butler, if there were a conflict, it seems to have been assumed that the plaintiff’s touching the rope was not tortious.”

See, also, Friedman v. Snare & Triest Co., 71 N. J. Law, 605 (70 L. R. A. 147). In this case a girl playing upon iron girders carelessly piled was crushed by their fall. The court said:

“And further, an individual member of the public, if specially damnified by the nuisance while in the exercise of his rights in the street, may maintain' a private action. But this refers only to parties injured while using the street as a street, and not to those whose injuries arise from their attempted use of the obstructing materials for their own purposes, whether of pleasure, convenience, or profit. For the building materials themselves do not in any sense become public property by being allowed to remain in the street. And neither a traveler, nor an idler, nor even a playful child, can gain rights against the landowner, or against his agent who stands in his rights,, by using such building materials as a resting place or playground. In the absence of circumstances denoting invitation, one thus using the private property of another for his own purposes may be either a licensee or a mere trespasser, depending upon circumstances. In neither case is there any duty incumbent upon the proprietor to make his property safe for such úse. Aside from the notion that temptation is equivalent to invitation, with which we cannot concur, there is nothing in the mere existence of building materials as an obstruction in the street that denotes an invitation to the passerby of to the idler or playful child to use the materials for his own purposes. The doctrine of invitation relates to the entry upon, or user of, lands. The very fact that materials piled upon the ground constitute a hindrance to travel negatives the idea of invitation in the ordinary sense.

“The case for the plaintiff rests upon the theory that since these girders were so arranged as to be attractive to children, and since the injured child, with her companions, was using them as a place for play, or as a resting place during or after play, the proprietors of the premises, or the defendants, upon whom, as independent contractors, the matter had been devolved, owed a duty to the children to so arrange the girders as to render them safe for their use. With this view we do not agree.

“No doubt, where a duty exists to take care with respect to the safety of children of tender years, their very age must be taken into account, so that what might be reasonable care with respect to the safety of adults, who are capable to some extent of looking out for themselves, might not be reasonable care with respect to children. But in the present case the very question is whether any duty existed, and we are not able to see that the age of the child is pertinent upon this inquiry. That the party injured in this case was less than five years of age did not at all tend to give her any property interest or right of user in the defendant’s girders. Whether she used them as licensee or as trespasser, in either case there was no duty upon the owner to exercise active care with respect to her safety.

“The fact that a dangerous place or object is attractive to children of tender years is legitimately significant where the question of their own want of care is raised. But there are fundamental, and, as we think, insuperable, difficulties standing in the way of adopting the rule that the mere attractiveness of private property gives to the person attracted rights against the owner. One difficulty is that the rule pro tanto ignores the distinction between meum and teum. And on what principle is it to be limited to cases of trespass ? Why does it not apply equally to the conversion of personal property, or even to larceny ? If those who temporarily and for limited purposes convert the private property of their neighbors to their own use are to be not only excused, but justified, where by reason of their tender years they were tempted to the trespass, and at the same time are to have rights of action against the true owners for the failure to exercise care about rendering the property suitable for their use, why may not those who, under similar temptation, convert the property of others wholly to their own use be likewise justified, and, instead of a right of action, gain a complete title to the property by simply appropriating it ?

‘ ‘Another and a very practical difficulty that confronts the attempt to lay down any legal rule that depends for its limitatons upon the attractiveness of objects to children of tender years lies in the extreme improbability that any man, however prudent, will be able to foresee what may or may not be attractive to children. Certainly, if a pile of steel girders, each weighing 1,000 pounds, deposited in the street as the girders in the present case were deposited, must be foreseen by a prudent man to be attractive to children, we are unable to say what object may not be thus attractive.

“ These are the views which we entertain after a care- . ful consideration of the question at issue in this case, after most learned and able arguments by counsel on both sides, and a review of numerous reported decisions touching more or less closely upon the point.”

This case points out the distinction of the question of attractiveness, as bearing upon defendant’s negligence, and the plaintiff’s contributory negligence, which has been lost sight of in many cases. The learned judge continues :

“The rule laid down in these cases is, as we think, wholly inconsistent with the asserted liability of the present defendant. That rule draws a clear distinction between temptation and invitation, and is to the effect that those who enter upon private property for their own purposes without invitation, but as trespassers or licensees, do so at their own peril, so far as any right on their part- to call for active care on the part of the property owner for their welfare is concerned, and that although the injured party be an infant of tender years, and for that reason less able to care for its own safety, and more susceptible to the attractions that private property affords for purposes of play, this circumstance does not create a duty where none otherwise would exist. It is true that, in our Turntable Cases, the attractive objects were not within the limits of the public highway; but it is likewise true that, in the present case, as already pointed out, while the building materials were within the street, they were deposited there as private property for lawful purposes by the defendant, in the exercise of the landowner’s rights in that behalf. And, although the representatives of the public might complain of the occupancy of a portion of the street by building materials, if unreasonably prolonged, or if the materials were insecurely placed, and although any one lawfully using the street as such might have an action if specially injured by collision with the materials, or by their fall if they were negligently left in an insecure position, we cannot see that these circumstances confer rights upon one who is using the building materials as the injured child in the present case was doing.”

A late case, written by our Brother Ostrander, supports the conclusion reached in this case. See Stark v. Lighting Co., 141 Mich. 575 ( 1 L. R. A. [N. S.] 822).

. It is unnecessary to discuss the question of contributory negligence.

The. judgment should be reversed, with costs of both courts, and no new trial ordered.

Grant, J., concurred with Hooker, J.


author: McAlvay, J. Hooker, J.

text:
    BARKER v. CITY OF KALAMAZOO.
    1. Municipal Corporations — Highways and Streets — Defects —Personal Injuries — Negligence—Liability of City.
    Where a street during paving operations is excavated at a crossing, the improvement being in charge and under control of the city officers, the city is liable for an injury to a pedestrian arising from an unsafe temporary cross-walk over the excavation, though it does not appear whether the city or the paving contractor built the cross-walk.
    2. Same — Torts—Contracts Affecting Liability.
    A city cannot relieve itself by contract of its statutory liability to keep the streets reasonably safe for public travel.
    3. Same — Personal Injuries — Contributory Negligence — Question for Jury.
    A woman, walking behind her husband across a street on a temporary cross-walk, was tripped by the end of a board springing up in her path as her husband stepped on the farther end of it. She testified that she was not looking at the board at the time, and did not see it rise. Held, that she was not guilty of contributory negligence, as a matter of law, and that question was for the jury. Hooker, J., dissenting.
    4 Evidence — Opinions—Admissibility.
    The daughter of plaintiff in a personal injury case testified that her mother did not go out as much as formerly, but that she could not say that it was due wholly to the accident. Defendant then asked, ‘ ‘ She has had other sicknesses that might cause it as well as the injury * * *, hasn’t she?” The court sustained plaintiff’s objection that the witness was not shown to be an expert, and stated that defendant might show whatever witness knew plaintiff had been afflicted with at or right after the accident. Defendant did not pursue the inquiry further. Held, that no error was shown, since it could not be presumed that the court would have excluded proper questions.
    5. Same — Condition of Cross-Walk — Remoteness.
    A witness may testify to the condition of a cross-walk the morning after an accident occurred thereon, claimed to have been caused by the defective condition of the walk.

      6. Municipal'Corporations — Claims Against City — Action — Evidence — Competency op Witnesses not Produced Before Council.
    _A construction of a section of a city charter, excluding witnesses not produced before the committee on claims of the city council, is not called for where plaintiff’s husband testifies that plaintiff was confined to the house at the time, that he assisted in collecting the evidence, and did not know of the witnesses in question until shortly before the trial.
    Error to Kalamazoo; Adams, J.
    Submitted February 1, 1906.
    (Docket No. 85.)
    Decided November 7, 1906.
    Case by AlmedaE. Barker against the city of Kalamazoo for personal injuries. There was judgment for plaintiff, and defendant brings error.
    Affirmed.

      Harry C. Howard and William JR. Fox, for appellant.

      E. M. Irish, for appellee.
   McAlvay, J.

Plaintiff recovered a judgment against defendant for injuries received from falling on a temporary cross-walk at the intersection of West Main and West streets, in the city of Kalamazoo. Main street runs east and west. West street crosses it at right angles, running north and south, A paving company was laying a pavement on Main street at the point in question. The old block pavement had been torn up, the boards on which it rested taken out, and the gravel foundation thereunder excavated to considerable depth. One track of the street car line on Main street had been relaid on a cement foundation, with a groove girder nine-inch rail. Several days previous to the accident a temporary cross-walk had been laid from curb to curb on the west side of West street across Main street, consisting of inch boards laid lengthwise across this street and over the street car track in the center of the street. The distance between the rails of this track was about five feet, and on this cross-walk, where it crossed the track, boards about the length of the distance between the rails were laid lengthwise upon the other boards. Plaintiff, who is a heavy woman, weighing 200 pounds, her husband, and adopted daughter, were on their way to the railroad depot to take a train for South Haven. They had come along the sidewalk on the west side of West street. The depot to which they were going was on the other side of Main street several blocks beyond. Proceeding to cross the street on this temporary crosswalk, the husband' was walking ahead and the plaintiff just behind him. The adopted daughter was walking beside plaintiff. Arriving at the place where the crosswalk was over the street car track, her husband stepped on a loose board, the end of which sprang up, caught her foot, and tripped herí She fell heavily, and injured her right knee joint severely and permanently. After being helped up, she was able to proceed to the depot. She went to South Haven with her husband and daughter and returned home towards evening. She says she would not have gone had she known how severe the injury was. She was confined to her bed most of the time for several weeks, and used crutches for a long time. She recovered a verdict of $1,500.

The errors claimed to have been committed by the trial judge, and on account of which defendant asks this court to reverse the judgment, are:

1. A verdict’ should have been directed for defendant (a) because of contributory negligence; (b) because defendant was guilty of no negligence and had no notice of the condition of the cross-walk; (c) because the plaintiff assumed the risk.

2. Erroneous rulings of the court on evidence.

3. Errors committed in the charge and refusals to charge as requested.

We will first consider the negligence of defendant, and notice to it of the condition of this cross-walk. The conditions in the street at the time were that excavations for a new pavement to be put in under contract with a paving company had been made, and in the center of the street the new railway track had been laid, and over it a temporary cross-walk had been constructed from curb to curb. By authority of the city council these improvements were in charge and under the direction of the commissioners of public improvements of the city, with the city engineer having general supervision of the work. It does not appear by whom this temporary cross-walk was constructed. The length of time it had been in place is by the evidence fixed- at about 10 days, and there is evidence tending to show that it was used by the public as a crosswalk. The paving contract required the contractor, among other things, to keep open passageways and protect the same where exposed, not to delay travel upon the streets being payed, or any cross-walks beyond a reasonable time, to erect and maintain all barricades, lights, and street closure signs. This crossing was located where two of the main thoroughfares of the city intersect. Of itself it was an invitation to the public to use it, and was the only way to cross at that place, except by getting down into the excavation, which was between one and two feet deep. It is admitted that the city cannot relieve itself by contract of its statutory liability to keep the streets reasonably safe for public travel by turning it over to a contractor. In the case at bar the improvement was entirely under the supervision and control of city officials. The municipality, then, would be liable, if, under these conditions, it permitted a faulty and unsafe 'cross-way to be constructed and maintained, and the question was one to be submitted to the jury under proper instructions. Beattie v. City of Detroit, 129 Mich. 20.

The contributory negligence of plaintiff as appearing from her own testimony is relied upon to defeat her recovery. Her testimony shows that she had not seen this crossing before this occasion; that they came to the crossing with her husband walking just in front of her, and her daughter at her side; that she saw the crossing was a temporary one; that they proceeded until just over the street railway track, when the short board her husband stepped on sprang up and tripped her. The portion of her testimony relied upon to show contributory negligence is as follows:

“Q. Were you looking at the plank when it flew up and hit you ?

“A. No, sir; I did not see it.

“Q. You did not see it raise, then ?

“A. No, sir; I felt it.

“Q. But you didn’t see it raise ?

“A. No, sir.

“Q. You weren’t looking at the plank upon which you were about to step at the time you fell ?

“A. No, sir.”

She said they were inch boards, and when she lay on the ground she saw that they were old ones. Even without considering her testimony as a whole, we cannot say from the above that, because plaintiff did not have her eyes upon the board at the instant she was injured, as a matter of law she was guilty of contributory negligence. The board which tripped her was not the board upon which she was stepping at the time, but one of the short boards which lay on the crossing just over the car tracks. The existence of contributory negligence was the essential fact in the case, and it depended upon inferences to be drawn from facts and circumstances about which honest minds might differ. In such case the question was one for the jury. Brezee v. Powers, 80 Mich. 172, and cases cited. From what has already been said it will appear that the question of assumption of risk is not in the case.

2. As to errors assigned upon the rulings of the court on evidence, witness Bessie Barker, the daughter, on cross-examination relative to plaintiff’s condition after the accident, stated that she did not go out as much as before, but witness could not say that it was due wholly to the accident. She was asked, “She has had other sicknesses that might cause it as well as the injury to the knee, hasn’t she ?” The court sustained plaintiff’s objection that witness had not been shown to be an expert, and said defendant might show whatever witness knew plaintiff had been afflicted with at or right after the accident. The question as put called for the conclusion of the witness and was properly excluded. The court indicated the proper lines of examination to show what sickness plaintiff had, but defendant’s counsel declined to follow the suggestion. No other questions were asked upon the subject. The question was excluded upon a specific objection. We cannot presume that the court would have excluded proper questions.

Dr. Tyler, for plaintiff, was allowed to testify that he saw this crossing on the morning following the accident, and that the boards were loose then. It is claimed that this was prejudicial and immaterial. The case involves the faulty construction of the cross-walk. The accident occurred on Sunday and witness saw the crossing Monday morning. It was not too remote, and was material upon one feature of the case. .

The testimony of several witnesses for plaintiff was objected to by defendant for the reason that they were not produced as witnesses before the committee on claims of the council, as it is claimed the charter requires. This provision we have been unable to find in the record. Whatever it may be, it is not necessary for us to construe it, for the reason that plaintiff’s husband testified that she was confined to the house at the time and he assisted in collecting the evidence; that he did not know of these witnesses until shortly before the trial. It was not error to permit them to testify.

3. The remaining errors assigned are upon the refusal to give certain requests of defendant, and to portions of the charge of the court. Of these 38 are to the refusal to give requests and 8 to portions of the charge. We have examined the clear and careful charge as given by the court, and find that the j ury were properly instructed as to the law of the case. The substance of the requests of defendant which was proper was included in the main charge. The other requests were properly refused.

The. judgment is affirmed.

Carpenter, C. J., and Blair, Montgomery, Ostrander, and Moore, JJ., concurred with Mc-Alvay, J.

Hooker, J.

(dissenting). I am of the opinion that the court erred in not directing a verdict for the defendant. The case is fairly within the cases of Shietart v. City of Detroit, 108 Mich. 309; Black v. City of Manistee, 107 Mich. 61; Irion v. City of Saginaw, 120 Mich. 295; Cloney v. City of Kalamazoo, 124 Mich. 655; King v. Township of Colon, 125 Mich. 511. The street was in the process of being paved, and to enable pedestrians to avoid the mud in crossing the contractors had laid down loose boards. Across the street railway a temporary crossing was made by laying short boards from rail to rail. They were not fastened, and manifestly could not be, if the cars were to use the track during the process of paving, and whether used or not the city should not be expected to make more than a temporary crossing, which should not be judged by the requisities of a permanent cross-walk. It is customary for private persons to lay down loose and unfastened boards upon their premises for temporary use, and while, perhaps, the sufficiency of the crossing made in this case may have been a proper question to submit to the jury, upon which I express no opinion, the question of contributory negligence was not. Not only does the rule in the cases cited apply to this case, but a plaintiff should be held to a higher degree of care than usual where, as in this case, he knows and can see the temporary character of the crossing, its details of construction, and the certainty that the loose board across the track must fly up at one end, if one steps upon the other.

The judgment should be reversed, and no new trial ordered.

Grant, J., did not sit.