text:
    COUSINEAU v. MUSKEGON TRACTION & LIGHTING CO.
    1. Carriers — Injuries to Passengers — Crowding at Station— Negligence of Carriers.
    Where a street-railway company maintaining an amusement park has reason to expect a very large crowd upon a certain day, it may he guilty of negligence in failing to maintain a sufficient force or guard to prevent injury to passengers by rushes and crowds at its station platform irrespective of whether it was its duty to provide railings or a fence about the platform to hold back the crowd.
    3. Same — Negligence of Passenger — Taking Position off Platform.
    Where an intending street-car passenger had reason to expect that the car would stop with a portion of it opposite the position she took off the station platform, thereby affording her an opportunity to get aboard, she could not be charged with negligence, as a matter of law, in taking that position.
    3. Same — Attempt to Board Moving Car — Evidence.
    Evidence that plaintiff attempted to grab hold of the rear handle of the motor car before being thrown under the trailer is not inconsistent with her claim that she was pushed by the crowd under the trailer, since she may have been pushed into a position where an effort to save herself by reaching out would have been an act of prudence rather than an act of negligence.
    Error to Ottawa; Padgham, J.
    Submitted January-24, 1908.
    (Docket No. 35.)
    Decided March 31, 1908.
    Case by Netiva Cousineau, by next friend, against the Muskegon Traction & Lighting Company for personal injuries. There was judgment for plaintiff, and defendant brings error.
    Affirmed.

      Nims, Hoyt, Erwin & Vanderwerp, for appellant.

      James E. Sullivan (W. J. 'Turner, of counsel), for appellee.
   Montgomery, J.

This case has been once considered by the court. The opinion is reported in 145 Mich., at page 814. On a third trial of the case, the plaintiff recovered, and the defendant brings error. Three grounds of error are urged in the brief of counsel for the defendant: jFirst, that the plaintiff failed to show negligence on the part of the company; second, that the plaintiff, in leaving the platform when there was room for her to stand there and going into the sand, was guilty of contributory negligence, as a matter of law; and third, that the verdict was against the weight of evidence for the reason that the evidence clearly showed that the plaintiff was attempting to board a moving car, and that this was, to her knowledge, a negligent act.

The facts are fully stated in our former opinion, but may briefly be recapitulated as follows: The defendant is the owner of a street railway and also of an amusement park upon the shores of Lake Michigan. It runs its cars into this park and around a loop. At one side of the loop is a platform 50 feet by 30 feet. The planking of the platform at the side farthest from the track lies directly upon the sand, and the surface is gradually raised until it is about even with the running board of the cars at the track. There was no barrier along the track or. around this platform, but it could be reached from all sides. As a rule the cars stop opposite the platform, and the passengers step from the platform into the cars. Sometimes the cars coming from the city stop before reaching it.

It is the contention of the defendant in this case that this only occurs when there is another train of cars at the platform, but the plaintiff’s testimony on this point tends to- show that the cars stop there at other times. She testified as follows:

, “ Q- I say, have you ever been out there,'have you at any time seen cars come around that curve and not stop right there by that platform when there was room enough for them to stop there ?

“A. I have seen them stop sometimes beyond the platform when there was room at the platform.

‘ ‘ Q. Did you ever see a car stop west of that platform when there was room for it to stop there at the platform ?

“ A. Well, sometimes, when the trailer was not just at the platform.

Q. Do you mean to say that you have ever seen a trailer that was over the other side of the platform to the west-?

A. Yes, sir.

" Q. When ?

“A. A good many times, I couldn’t just tell you when it was that I have seen them.

Q. And isn’t it true that the only times that cars ever did stop west of that platform was when the rails would be filled up with cars there along by the platform, waiting for the crowd that would come out from the theater so as to take all the people down town ?

‘ ‘ A. Sometimes the trailer would stop before they got at the platform.

Q. What do you mean by the trailer stopping before it got to the platform ?

“A. That is, the trailer was not — all the trailer was not at the platform.

“ Q. You mean there would be some part of the trailer that would be west of the platform ?. .

“A. Yes, sir.

“ Q. That is, back on the part where the sand was ?

“A. Yes, sir.

Q. How much of the trailer did you ever see west of that platform ?

"A. Sometimes two or three seats; that is, the length of two or three seats.

Q. And you say that has occurred when there has been no cars there by the platform ahead of the trailers ?

“ A. Yes, sir.”

The testimony tended to show that on the day in question, the 4th of July, there was a large crowd at the park; that shortly after 10 o’clock, after the theater was over, the plaintiff and a girl companion went to this platform to take a car and found a large crowd there; that after standing on the platform for a short time, they stepped off the platform into the sand with the purpose of taking the car. The testimony also shows that in this they were not acting differently to many others, as there was a large crowd in the sand to the west of the platform in the region where they stood. The plaintiff stood about three feet west of the platform, and her friend was near her.

The testimony on the part of the plaintiff tends to show that there was present to her knowledge but one policeman or employe of the defendant whose duty it was to keep the crowd back, while the testimony of the defendant shows that there were four. The car came up, and before it reached the platform, a rush appears to have been made, and the plaintiff’s testimony tends to show that she and her companion were pushed forward, plaintiff was pushed under, the car by the crowd, and received the injuries for which this action was brought.

The defendant attempts to point out certain differences between the testimony given on the former trial and that given on the present trial. It is claimed that the plaintiff and her companion voluntarily left the platform and went into the sand. The inference is that this was the course taken by the plaintiff. But if she had reason to expect that the car would stop with a trailer or a portion of it opposite the point in the sand where she took her position, we are not able to say that she was acting imprudently in taking that position. A great many other people on the same occasion did the same thing.

Taking up specifically the question of whether the de- . fendant was guilty of negligence, we think the defendant’s contention in this respect is fully answered by the plaintiff and the quotations of authorities contained in our former opinion. There can be no doubt that the defendant had reason to expect a very large crowd on this occasion. Whether it was essential that the company should have railings or a fence to holcLback the crowd it is not important to determine, as it was open to the jury to find that there was negligence in failing to maintain a sufficient force or guard to prevent just such a catastrophe as occurred in this case, as the cases cited in our former opinibn sufficiently show.

Nor was the plaintiff guilty of contributory negligence, as a matter of law, in taking her place on the sand: In

determining this question, the circumstances must be judged as they appeared to the plaintiff at the time. By her testimony, it was not unusual for the train to stop with the rear of the car opposite the position which she actually took. It would be immaterial as affecting the question of her negligence as to what the occasion of the car making such a stop was. If she had reason to believe that the car would make a stop at that point, where she would have an opportunity to get aboard, she ought not to be charged with negligence for taking such a position.

Upon the question of whether the plaintiff was attempting to board this car at the time she received the injury, the evidence is directly conflicting. The plaintiff and her companion both testified that they were not making any attempt to board this car, and did not attempt to until it came to a stop, but that they were pushed forward and the plaintiff thrown under the car. There is testimony that she attempted to grab hold of the rear handle of the motor car, but this is not wholly inconsistent with her claim. She might have attempted to do so because she was pushed into a position where an effort to save herself by reaching out would have been an act of prudence rather than an act of negligence. There was ample testimony in the case to support the verdict of the jury, and it is not open to us, nor was it to the circuit judge, to say that the evidence was so clearly against the weight of testimony as to justify a vacation of the verdict.

The judgment is affirmed.

Grant, 0. J., and Ostrander, Hooker, and Carpenter, JJ., concurred.


source: Caselaw Access Project

author: Montgomery, J.

license: Public Domain

text:
    DRIGGS v. BUSH.
    1. Statute of Frauds — Sales of Goods — Part Payment — What Constitutes.
    Where, plaintiff bought 24 or more tons of hay of defendants at $10 per ton, plaintiff to pay for baling and defendants to deliver it at the railroad, payment by plaintiff of the cost of baling constituted a sufficient part payment to take the contract of purchase out of the statute of frauds, section 9516, 3 Comp. Laws
    2. Estoppel — Contract of Sale — Repudiation—Effect.
    Where the sellers of certain hay repudiated the contract and refused to deliver, the buyer’s remedy under the contract, as an executory contract, was complete, and it did not lie with the sellers to urge, when sued accordingly, that the title to the hay had passed by delivery and receipt.
    Error to Van Burén; Des Voignes, J.
    Submitted January 24, 1908.
    (Docket No. 149.)
    Decided March 31, 1908.
    Assumpsit by Hue H. Driggs against Levi Bush and William Dean for breach of a contract for the sale of certain hay. There was judgment for plaintiff, and defendants bring error.
    Affirmed.

      Anderson & Warner, for appellants.

      Barnard & Lewis, for appellee.
   Montgomery, J.

The plaintiff is a buyer of hay, and through his agents, Homer B. McWilliams and John Van Horn, made a contract with the defendants, who own and operate two farms in Van Burén county, and who were the joint owners of the hay crop thereon, for the purchase of 24 tons of hay or more, at the option of the defendants. The contract was by parol, and as appears by the testimony offered on behalf of the plaintiff, was as follows:

“Mr. Dean said, 'I want $10 a ton, and you bale the hay.’ We finally bought all of the hay for $10 a ton and we to do the baling and we were to take the hay the first ears we could get at Grobleville after the hay was baled.”

The testimony of the other witness for plaintiff does not vary materially from this, he stating:

“We were to pay him $10 á ton for it, and we was to pay for the baling. ”

It was also a part of the agreement that the defendants were to draw the hay to Grobleville and place the same on board cars. After the contract was made, the plaintiff sent balers to the premises of the defendants who baled the hay, the defendants being present and assisting in the work. The price paid for baling the hay was $1.10 per ton, or $33.55, that being the regular price for such services. The defendants subsequently refused performance of the contract, and this action was brought to recover damages for the breach. Plaintiff was permitted to recover below the difference between the purchase price of the hay and its actual market price at the date when delivery was contemplated. Defendants bring error, and contend that the contract was void under the statute of frauds, and has never been validated, and this presents the principal question for our consideration.

Our statute of frauds, 3 Comp. Laws, § 9516, reads as follows:

“ No contract for the sale of any goods, wares or merchandise, for the price of fifty dollars or more, shall be valid, unless the purchaser shall accept and receive part of the goods sold, or shall give something in earnest, to bind the bargain or in part payment, or unless some note or memorandum in writing of the bargain be made, and signed by the party to be charged thereby or by some person thereunto by him lawfully authorized.”

It is obvious that at the time this contract was made there was no such delivery or part payment as satisfied the terms of this statute. But as this statute does not require the payment or acceptance to be at the time of the making of the contract, as is the case in New York and some other States (see 1 Mechem on Sales, § 419), it is competent for the parties to validate their contract by any act which amounts to a delivery and acceptance or to a payment. The circuit judge was of the opinion that when the hay was baled by the plaintiff’s agents upon the premises of the defendants and with their co-operatiqn, this constituted such a delivery and acceptance as would answer the requirements of the statute of frauds.

It is strenuously insisted that there was no such delivery or acceptance, and plaintiff’s counsel do not seek to maintain that there was. Without passing directly upon the question, therefore, in this case, we may assume that there was no such completed delivery as the statute requires, and that the defendants still retained the title to the property after the same was baled. We are not concerned with the correctness of the reasoning of the circuit judge if the correct result was reached. The question occurs, therefore, whether the expenditure of $1.10 per ton upon this hay, which remained the property of the defendants, which expenditure was received and accepted by them, and was made in pursuance of the contract between the parties, was such a part payment as answered the requirements of the statute. It is contended that the thing in earnest must be actually paid, and received by the seller. This we fully accept. But there can be no doubt in this case that the service of baling this hay was received and accepted by these defendants, and if this was done at a time while the hay remained their property, and such service was received in pursuance of the contract made between the parties, we can conceive of no valid objection to treating this as a part payment of the consideration which was to pass from the plaintiff to the defendants at a time prior to the passing of the title of the hay to plaintiff. This being so, there has been a payment by the plaintiff and a receipt by the defendants of a part of the consideration. It was the hay in its improved form as baled hay which, according to the theory of the defendants, was to pass from the defendants to the plaintiff, and if this be accepted as true, which it doubtless is, it cannot be successfully contended that the defendants have not received the value of services performed by the plaintiff in pursuance of this contract.

Suppose this agreement had been on the part of the plaintiff to pay a stated price for this hay when baled and delivered and at the same time to thresh defendants’ oats on the farm. The contract would not be materially different. In the one case as in the other, plaintiff is performing a service for defendants which' increases the value of their property. It is not necessary that the payment made upon the contract be in money. See Kuhns v. Gates, 92 Ind. 66; Howe v. Jones, 57 Iowa, 130; McLure v. Sherman, 70 Fed. 190.

Defendants rely upon Corbett v. Wolford, 84 Md. 426; Terney v. Doten, 70 Cal. 399; Galbraith v. Holmes, 15 Ind. App. 34; Hudnut v. Weir, 100 Ind. 501, which was again before the court as Weir v. Hudnut, 115 Ind. 525.

The case of Gorbett v. Wolford is claimed to be controlling. In that case, however, while the facts are somewhat similar to the case under consideration, the question of whether the baling of the hay was a part payment was not under consideration at all. The case dealt with the sole question as to whether there had been in fact any delivery and acceptance which would take the transaction out of the statute of frauds.

The case of Terney v. Doten arose under a statute which rendered invalid all sales of personal property or agreement to buy or sell unless there was a note or memorandum in writing or an acceptance by the buyer at the time of sale paid as part of the price. In that case defendant agreed to sell plaintiff 100 unbroken horses at the price of $75 each. The defendant was to gather up a number of horses from the band, from time to time, and place them in corrals from which plaintiff was to select not less than 20 and commence rough breaking them, having for that purpose the use of defendant’s harness, cart, etc., after which the number so selected and broken were to be turned into defendant’s pasture field and another selection made in a like manner and for a like purpose, and so on until the whole number agreed upon had been bought and sold. Under the contract, the plaintiff later on went to defendant’s ranch, got together a number of horses, from which plaintiff selected 22 and commenced breaking them, upon the conclusion of which he turned them into the pasture field of defendant and waited for defendant to gather another lot. It was held that none of the horses forming the subject-matter of the contract ever passed into the absolute control and possession of the plaintiff, and that there was no acceptance and receipt of any of them by the plaintiff within the meaning of the statute. The question whether there had been payment to the defendant by the plaintiff upon the contract was not involved, as it obviously could not have been urged on plaintiff’s behalf for the reason that there was no pretense that any payment was made at the time of the sale, which is the requirement of the California statute. It is needless to repeat that our statute contains no such requirement.

The cases of Galbraith v. Holmes and Hudnut v. Weir are very similar in their facts. In Galbraith v. Holmes it appeared that plaintiff made an agreement with the defendant by the terms of which defendant was to ship him flour to apply upon an indebtedness owing from defendant to plaintiff. Plaintiff also agreed to deliver to defendant his own sacks in which to put the flour and return to the plaintiff. In the case of Hudnut v. Weir the arrangement was very similar except that the purchaser agreed, as a part of the consideration of the sale, to furnish the bags in which to put corn when shelled, but it was said, and very properly, that the delivery of the sacks to the seller was a matter for the purchaser’s own accommodation and was not part payment, and that therefore this did not take the transaction out of the statute. But in Weir v. Hudnut the averment of the declaration being that the use of the sacks was to be treated as part consideration for the purchase of the property, the court held that this stated a case. It will be noted that in these cases there was no passing of the title of the sacks from the purchaser to the seller. In the present case, any work done upon the hay in baling the same, passed a present benefit from the purchaser to the seller, and as it was done in pursuance of the contract, it could be nothing else than payment upon the contract. None of these cases, therefore, militate against the conclusion which we announce, that this contract was validated by the receipt of the benefit of baling the hay in pursuance of the contract.

None of the other questions presented call for discussion, as they relate to the other feature of the case. For instance, it is contended that the rule of damages was improper if the case is rested upon the view that the title to the hay had passed from defendants to the plaintiff. It does not lie with the defendants to urge that the title had passed by delivery and receipt. They have repudiated that view of the case, and having refused to perform on their part, the plaintiff’s remedy under the contract, as an executory contract, would seem to be complete and properly applied in this case. See Davis v. Strobridge, 44 Mich. 157.

The judgment is affirmed.

Grant, 0. J., and Ostrander, Hooker, and Carpenter, JJ., concurred.


author: Carpenter, J.

text:
    THAYER LUMBER CO. v. CITY OF MUSKEGON.
    1. Public Works — Special Assessments — Muskegon Charter-Board op Review — Jurisdiction — Illegal Proceedings — Remedy.
    The board authorized by section 8, title 11, of the charter of Muskegon (Act No. 844, Local Acts 1901), to review special assessments, has no authority to adjudge illegal the proceed- ■ ings whereby the improvement was established, and a landowner appearing before the board and presenting such an objection need not await a decision of the "board before filing his bill to restrain further proceedings, but may abandon that proceeding and institute a suit before a tribunal having jurisdiction to determine the controversy.
    2. Same — Restraining Proceedings — Prematurity op Suit.
    A landowner objecting to the establishment of a public improvement, and the levying of special assessments therefor, on the ground that the proceedings to establish the improvement were irregular, need not wait until the municipal authorities have made an actual levy of the tax before filing his bill to restrain further proceedings, it being his duty to act with diligence to avoid the loss of his right to resort to equity consequent upon delay until the improvement shall have been made.
    8. Same — Local Improvements — Establishment—Regularity.
    Where, upon the adjourned day of the hearing appointed for receiving objections to a local improvement, the city council adopted a resolution which, in substance and effect, declared that the proceedings then pending were terminated and that new and original action would be taken, the proceeding was at an end, and the council could not base future proceedings, involving other and different lands, upon the resolution and notice abandoned.
    4. Same — Notice—Necessity.
    In the absence of statutory mandate, the council is not required to give any notice to property owners of its intention . to construct a public improvement and to levy a special as- . sessment to defray the expense thereof, but where notice is required to be given it is imperative that such notice, when brought to the attention of any person interested, shall apprise him at least of the approximate location of the proposed improvement and of the property to be assessed therefor.
    5. Same — Notice—Sufficiency.
    Under the charter of Muskegon, section 4, title 11 (Act No. 844, Local Acts 1901), requiring the city council to give notice before ordering any public improvement any part of the expense of which is to be defrayed by special assessment, a notice of intention to construct a sewer, from a reading of which no person could ascertain in what part of the city the proposed sewer was to be built, or whether his property was liable to be assessed therefor, is insufficient to confer jurisdiction upon the council to order the improvement.
    Appeal from Muskegon; Sessions, J.
    Submitted January 24, 1908.
    (Docket No. 159.)
    Decided March 31, 1908.
    Bill by the Thayer Lumber Company against the city of Muskegon, the common council of said city, and the board of assessors of special sewer district No. 7, to set aside proceedings for the construction of certain sewers. From a decree for complainant, defendants appeal.
    Affirmed.

      Nims, Hoyt, Erwin & Vanderwerp, for complainant.

      James E. Sullivan, for defendants.
   Carpenter, J.

The quoted part of this opinion — the principal part — is taken from the opinion of Judge Sessions, the trial judge, rendered in disposing of the case in the court below.

“ On August 20, 1906, the council of the city of Muskegon duly adopted a resolution creating and constituting a. special sewer district therein designated as 4 Special Sewer District No. 7,’ describing with particularity the lands constituting such district, including those of complainant, declaring the construction of sanitary sewers within such district to be a necessary public improvement, providing that 25 per cent, of the cost and expense of such improvement should be paid from the general sewer fund of the city of Muskegon and the remaining 75 per cent, by special assessment to be levied upon all the lands within the district according to benefits, adopting the plans and diagrams prepared by the civil engineer and instructing the city recorder to give notice by publication in the official newspaper that the council would meet on September 10, 1906, to hear objections with respect to said sewers and to the levying of the special assessment therefor. Such notice was duly given by publishing the entire resolution in the official newspaper for the requisite time. Pursuant to such notice the council met on the 10th day of September and the hearing of objections was adjourned for one week and until September l?th. Upon that date a resolution was duly adopted ordering the sewer plans to be amended so as to provide sewer drainage for considerable additional territory and to change materially the boundaries and location of the sewer district as then constituted, and in instructing the civil engineer to prepare and file new or additional plans, specifications and estimates. The record of the council proceedings does not show any further adjournment of the hearing of objections to the proposed sewers.

“ It appears by the journal record of its proceedings that on October 8, 1906, the council duly adopted a resolution declaring ‘the construction of certain sanitary sewers (as shown on the revised plans of J. H. Blomshield, civil engineer) within the said district is a necessary public improvement,’ providing that 35 per cent, of the cost and expense thereof should be paid from the general sewer fund of the city and the remaining 75 per cent, by special assessment to be levied upon the lands within the district according to benefits, adopting the revised plans and diagrams of the engineer, ordering the city recorder to give notice by publication in the official newspaper that the council would meet on the 5th day of November, 1906, ‘ to consider suggestions and objections with respect to said sewers and the levying of the special assessment therefor,’ and concluding as follows:

“‘It is further resolved, That the resolution adopted by the council on the 30th day of August, constituting a special sewer district to be known and described as Special Sewer District No. 7, in so far as it conflicts with this resolution and with the plans and diagrams and the estimates and costs of said sewers mentioned herein, be rescinded and held for naught.’ * * *

“ Prior to the meeting of the council on November 5, 1906, the following notice was published in the official newspaper in the manner and during the time required by the city charter:

“ ‘TO WHOM IT MAY CONCERN.

‘ ‘ ‘ Take notice that:

“ ‘The council of the city of Muskegon, at a session of said council held at the council chamber in the city hall in the city of Muskegon, on the 8th day of October, 1906, adopted a resolution that certain lands mentioned therein should constitute a sewer district, to be known and described as special sewer district number seven.

‘“And also, that the construction of certain sanitary sewers therein was a necessary public improvement and that a special assessment should be levied therefor;

“ ‘ And also, adopted the revised plans and diagrams prepared under the direction of the council by J. H. Blomshield, civil engineer, which plans and diagrams show a plat of the whole sewer district, with all the streets, public grounds, lots and subdivisions thereof in the district and the proposed route and location of the sewers and branches to be constructed and the depth, grade and dimensions with estimates of the cost thereof, which plat, diagrams and estimates, with the resolution referred to, are now on file in my office where they may be found for examination.

“ ‘You will also take notice, That in accordance with said resolution, the council will meet at the council room in the city of Muskegon on the 5th day of November, 1906, at eight o’clock in the afternoon, to consider suggestions and objections with respect to said sewers and to the levying of a special assessment therefor.

“ ‘ Dated, this 10th day of October, 1906.

“ ‘P. P. Misneb,

“ ‘ Recorder of the City of Muskegon.’

“No other notice of this meeting to hear objections was published or given, and the complainant had no other notice or knowledge of the proceedings and action contemplated.

“ The subsequent proceedings of the council, ordering the construction of the sewers, advertising for bids, letting the contract, amending the plans and specifications, appointing the board of assessors, describing the lands to be assessed and directing the special assessment to be made, are all based upon the resolution of October 8, 1906, and nowhere in these proceedings is any reference made to the resolution of August 20, 1906.

“A special assessment roll was prepared by the board of assessors, appointed by the council for that purpose, and upon such assessment roll the board of assessors assessed against the property of the complainant the sum of $1,148.16. After this assessment roll had been reported by the board of assessors to the council for confirmation and at the time appointed for the meeting.of the council and board of assessors as a joint board of review, complainant filed a protest against the assessment upon its property, and in such protest set forth substantially the same grounds of objection as are alleged in its bill of complaint in this cause. The meeting of the board of review was adjourned to a later date. The city attorney filed a written opinion with the council, holding that complainant’s objections were not well taken. Thereupon and before any action upon its protest had been taken by the board of review, complainant commenced this suit in which it seeks a decree of this court setting aside the proceedings heretofore had and taken and restraining all future proceedings by the defendants to levy such special assessment upon and against its property.

“ The claims of the respective parties may be stated as follows:

‘ ‘ Complainant contends that all of the proceedings on the part of the defendants with reference to the construction of the improvement in question and the levying of a special assessment therefor are of no validity—

“1. Because the proceedings inaugurated by the adoption of the resolution of August 20, 1906, were terminated and came to an end on September 17, 1906, and the subsequent actions of the municipal authorities were not and could not be based thereon. * * *

“J5. Because the published notice of the meeting of the council on November 5, 1906, to hear and consider objections to the proposed improvement was not sufficient to confer upon the council jurisdiction and authority to take further proceedings with rf ference to such improvement and assessment. * * *

‘c Besides denying and attempting to refute each and all of these claims of the complainant the defendants contend that the complainant cannot prevail j * * * because, in any event, this suit has been instituted prematurely.”

Was this suit commenced prematurely ?

“The argument in support of this contention is in substance that having appeared before the board of review and there presented objections to the improvement and its resulting assessment, complainant must await the decision of that tribunal before invoking the aid of another.”

There would .be much force in this argument if such board of review had any rightful authority to grant complainant relief. It derives its authority from section 8, title XI, of the charter of the city of Muskegon, the same being Act No. 344 of the Local Acts of 1901. That section reads:

■ “At the time so appointed, the council and board of assessors shall meet, and then or at some adjourned meeting review the assessment roll and consider any objections made thereto; the council shall correct the same, if necessary, and confirm it as reported or as corrected; or it may refer it back to the board of assessors for revision or annul it, and direct a new assessment, in which case the same proceedings shall be had, as in respect to the previous assessment. ”

The authority given to the board of review by this section is to correct errors in the assessment. It does not give that board authority to adjudge illegal the proceedings whereby the sewer was established-. Complainant does not seek relief from errors committed during the assessment. It seeks relief upon the ground that the proceedings to establish the sewer were illegal. When complainant applied to the board of review for relief, it therefore applied to • a tribunal which had no jurisdiction to grant relief — and this was the opinion of the city attorney who represented defendant then and now — and there is no just ground for claiming that complainant should continue to prosecute its case before such a tribunal. It had therefore a right — indeed, it was its duty — to abandon that proceeding and to institute a suit before a tribunal having jurisdiction to determine the controversy.

Defendants also contend that complainant should have delayed until defendants had taken other steps, viz., made an actual levy of the tax. We think otherwise. Complainant was bound to act with diligence. Had it delayed until the improvements had been made it might have lost its right to resort to a court of equity for relief. Byram v. City of Detroit, 50 Mich. 56; W. F. Stewart Co. v. City of Flint, 147 Mich. 697, and authorities there cited.

Earlier proceedings.

The resolution of the council, adopted August 20, 1906, the notice of hearing of objections based thereon, the meeting of the council to hear objections pursuant to such notice, and the adjournment of such hearing from September 10th to September 17th, were all regular and according to the requirements of the city charter. It is urged that the subsequent proceedings were merely supplemental to such former action, and, even though some of the later steps were irregular and defective, the jurisdiction once acquired by such improvement continued and has not been lost. The fatal weakness of this contention appears in the fact that on September 17th, when all parties interested were, in contemplation of law, before it, the council, instead of further adjourning or continuing the proceedings then begun and in progress, adopted a resolution, which, in substance and effect, declared that the proceedings then pending were terminated and that new and original action would be taken. Every person present at or having knowledge of the adoption of that resolution must have understood that new and different plans and diagrams were to be prepared, that a new and different sewer district was to be created and that, when the proper legal steps had been taken to accomplish this, a time would be fixed and notice thereof duly given when all persons interested could have their day in court and have an opportunity to be heard if they so desired. * * * Beach v. Mayor, etc., of Jersey City, 71 N. J. Law, 87; Angus v. City of Hartford, 74 Conn. 27.

“ The record of the proceedings of the council with reference to this improvement, when considered in its entirety, conclusively establishes the fact that the council did not intend to and did not base its action of October 8, 1906, and subsequent dates, upon anything which had occurred and been done prior to September 17th of that year. The resolution of March 17, 1907, ordering the making of the assessment in question and appointing a board of assessors for that purpose, recites that it is based upon the resolution of October 8, 1906. Besides, the lands described therein as constituting the special assessment district and to be assessed are materially different from those described in the resolution of August 20, 1906. A careful study' and examination of these two resolutions shows that upwards of 250 lots or parcels of land are included in the district created by the earlier resolution which are omitted from the district ordered to be assessed by the later one, while about 100 lots which are included in the later resolution are not contained in the former one. It thus appears from the resolutions themselves, and from the plats and diagrams filed therewith, that the length of the sewers and their cost were increased while the territory to be taxed therefor was decreased, and that the proportionate amounts of the assessment against the lands of the complainant and those of every other person in the district as finally fixed were correspondingly increased. This variance would of itself be fatal to the validity of the assessment if such assessment depended upon the earlier action of the council.”

Notice.

“ In the absence of statutory mandate, the council is not required to give any notice to property owners of its intention to construct a public improvement and to levy a special assessment to defray the expense thereof. Parsons v. City of Grand Rapids, 141 Mich. 467.

“But the charter of the city of Muskegon (section 4, title SI) provides:

“ ‘Before ordering any public improvement, any part of the expense of which is to be defrayed by special assessment, * * * the council shall give notice thereof, and of the proposed improvement, and of the district to be assessed therefor by publication in the official newspaper of the city for at least two successive weeks, and of the time when the council will meet and consider any objections thereto.’

“The notice of the council meeting of November 5, 1906, to hear objections to this improvement, which is hereinbefore set out in full, does not comply with the charter requirements above quoted, and is fatally defective in that it fails to set forth either the proposed improvement or the district to be assessed therefor. Where notice is required to be given, it is imperative that such notice, when brought to the attention of any person interested, shall apprise him at least of the approximate location of the proposed improvement and of the property to he assessed therefor. This notice contained no such information. From reading it no person could ascertain in what part of the city the proposed sewers were to be built, and much less whether or not his property was liable to be assessed therefor. As was said in Auditor General v. Calkins, 136 Mich. 1, 5:

“ ‘ It was obligatory upon the common council to give the notice required as a condition precedent to further action. The notice is in the nature of a summons to bring a defendant into court. Its object is to summon the interested taxpayers before the council, and give them a hearing. The notice must give the time required by the law [the proposed improvement and the district to be assessed therefor], or else the council obtain no jurisdiction, any more than a court would obtain jurisdiction by a void service of process. The council in the inception obtained no jurisdiction on account of a void notice.’ ”

Defendants’ counsel cite several Michigan cases which they contend are opposed to the foregoing reasoning. We may dismiss all those cases save one by saying that they are not only clearly but obviously distinguishable. The one case which deserves special attention is Townsend v. City of Manistee, 88 Mich. 408. There, proceeding under a charter containing a provision like that above quoted, the common council of Manistee published a notice which did not describe the district to be assessed, but which did “ set out that it was the intention of the city to construct a lateral sewer, giving its direction, and the streets along which it would be laid.” In a suit to' set aside assessments instituted by the property owners after the sewer was constructed, the court overruled their objections to this notice. It will be observed that in that case, unlike the case at bar, the notice stated “the direction of the sewer and the streets along which it would he laid.” It might well he said that this would challenge the attention of one owning property in the ''proximity of the sewer. Moreover, the complainants in that case having delayed the institution of their suit until the sewer was constructed could not obtain relief under the authority of Byram v. City of Detroit, 50 Mich. 56, and W. F. Stewart Co. v. City of Flint, 147 Mich. 697. This case is not therefore ruled by Townsend v. City of Manistee, supra.

“ In accordance with the views herein expressed a decree will be made in favor of the complainant and against the defendants, setting aside and holding for naught all of the proceedings heretofore taken and restraining any further proceedings to levy the special assessment in question upon and against the lands of complainant.”

The decree is affirmed. The complainant will recover costs of both courts.

Grant, 0. J., and Montgomery, Ostrander, and Hooker, JJ., concurred.


author: Grant, C. J.

text:
    TUCKER v. BURT.
    1. Landlord and Tenant — Existence of Relation — Occupation by Servant.
    The janitor of an apartment building, receiving as compensation for his services a salary and the use of certain rooms in the building for the use of himself and wife, is not the tenant of his- employer, and has no right to bring into his employer’s house to live with him any one without his employer’s assent.
    2. Torts — What Constitute — Violation of Moral Obligation.
    Plaintiff was taken ill with an infectious disease while visiting the janitor in defendant’s apartment house, and on learning of the character of the disease defendant ordered her from the flat, accompanying his order with a threat that if it were not executed he would come with an officer and put her out. Unable to hire an ambulance, plaintiff made use of the street cars and by walking reached her own home where she was immediately taken worse. Held, that defendant violated no legal duty to plaintiff, it being as much, his duty to look out for his tenants as to look out for her, and there being nothing from which defendant might infer that an aggravation of plaintiff’s illness would follow her removal.
    Error to Wayne; Mandell, J.
    Submitted January 23, 1908.
    (Docket No. 135.)
    Decided March 31, 1908.
    Case by Jennie Tucker against McKinstry Burt for personal injuries. There was judgment for defendant on a verdict directed by the court, and plaintiff brings error.
    Affirmed.

      Abbott & Abbott and Lehman & Biggs, for appellant.

      James H. McDonald and Lloyd L. Axford, for appellee.
    Defendant was the owner of a six-family apartment building known as the Pontiac Apartments. It was occupied by six families. The janitor, plaintiff’s son-in-law, Mr. Barber, received as compensation for his services $20 per month and the use of certain rooms in the basement for the use of himself and wife. Plaintiff was a widow whose youngest son — about 12 years old — lived with her. She was poor and went out to service. She was in the habit of leaving her son during the day with her daughter and her husband, calling for him at night when she returned to her own home, about 12 blocks from the Pontiac Apartments.
    One day during .the latter part of April, 1905, the boy was ta,ken ill with inflammatory rheumatism at his sister’s home. It was arranged that the boy should remain there; that plaintiff should take care of him at night, and that . the daughter and her husband would take care of him during the day. . They had but one bed room which was given up to the plaintiff and her son, while the daughter and her husband slept in a bed upon the floor in the sitting room. One day, but the precise time does not appear, plaintiff was taken ill with erysipelas. It was not regarded by the physician as a very serious case. She remained there until May 15th. Meanwhile plaintiff’s physician had told the tenant's in the building that the disease was infecti¿us and warned them to be careful. He testified that one of the tenants called him up and berated him a little for having her there. On Sunday, the 14th, the defendant, having learned of plaintiff’s illness and the infectious character of it, notified the janitor, Mr. Barber, that he must take plaintiff out of the flat. Mr. Barber said he would try and see what he could do about having her removed before Monday afternoon. On the following forenoon defendant called Mr. Barber by telephone and informed him that he must get plaintiff out by noon or he would bring an officer and put them all out. Mr. Barber communicated this message to the plaintiff. He told her that she had better stay. He testified :
    “ She [plaintiff] got up on her ear, and said she was going. She got very excited, and said she did not want to cause me any trouble, and she would rather go than cause me trouble.”
    She described the circumstances of her leaving as follows :
    “On the 15th day of May, 1905, it was brought to my knowledge, that Mr. Burt desired me to leave and insisted on my leaving. My son-in-law came in and said that Mr. Burt telephoned that I should leave the place, and if 1 didn’t leave in an hour or two hours, if I was not out in that length of time he would come up and put the whole shooting match out of the house. That frightened me because I did not want to cause my son-in-law any trouble, and he said, don’t be frightened, and I said I am, because I don’t want to cause you trouble, and he said you are not able to go, and I said I will go anyway and put on my things, and took the street car. My daughter accompanied me. Up to that time I had not left the house during my illness at the Pontiac Flat; I had not left the room. I can’t tell the time of day. We telephoned for an ambulance, but I could not pay the amount of charges, and I took a street car. I had to walk nearly two blocks. I went down Beaubien and transferred on a Crosstown, and when I got to Third avenue I walked from the cars.”
    She also testified that she was taken worse immediately thereafter. She left the apartments for her home about 2 o’clock p. m. Her daughter accompanied her. It took about half an hour to get home. She had forgotten the key to her house, and sat upon the stoop while her daughter climbed into a window and opened the door. There was no fire in the house, but the daughter immediately built one.
    She brought this suit charging that—
    “She, in common with all the inhabitants of this republic, was entitled to be protected in the enjoyment of her health, her life, and her limbs, her property and all other rights commonly known- as the absolute rights of persons, and in her then condition was entitled to be protected against being exposed to the weather, or to such physical or mental effort and fatigue as would have a tendency to bring about a relapse in her condition and an aggravation of her said affliction.
    ‘ ‘And the plaintiff further avers that by reason of the premises, it became and was the duty of the said defendánt to permit her to enjoy her said absolute rights, and to wholly desist and refrain from requiring, ordering, directing or compelling her to leave her place at said Pontiac Flats, and undergoing the fatigue, physical exertion and mental anxiety incident to leaving her said place at said flat, in her then condition, and going to her said home at 853 Third avenue, in said city. And it was the other and further duty of the said defendant to refrain from any and all acts which would have a tendency to and would bring upon the said plaintiff a relapse, and to permit the plaintiff to remain at her room in said flat until restored to such health that she could return to her own room without danger of a relapse.
    “Yet the said defendant, not regarding his said duty or duties, or any or either of them, for the sole reason that some of the tenants in said flat thought that plaintiff’s affliction was contagious, the said defendant wrongfully, heartlessly, unlawfully, and in utter disregard of the plaintiff’s rights and condition of her health, required, ordered and directed and insisted upon the removal of the said plaintiff from said flats, although it must have been perfectly apparent to any one that such action would greatly endanger the life and health of the said plaintiff, and the said defendant unlawfully, wrongfully, negligently and recklessly and heartlessly required and ordered the said James Barber to put the said plaintiff out of said flat, and instructed the said Barber that unless he did as directed ^the said defendant would come there with policemen and officers and remove the said plaintiff from said flat.”
    Plaintiff introduced evidence tending to show that she " was worse after leaving the defendant’s premises.
    When the plaintiff rested her case the court directed a verdict for the defendant, on the ground (1) that the defendant had violated no duty which he owed to plaintiff, and (2) that there was no evidence that her physical condition after she left was traceable to the alleged wrongdoing on the part of defendant.
   Grant, C. J.

(after stating the facts). The question here involved is one of legal, not of moral, obligation. The law imposes no duty upon the individual citizen to care for the sick or the unfortunate who are poor. The public in this country assume that obligation, and each citizen has performed all that the law requires of him when he has paid his share of the expense imposed upon him by taxation for that purpose.

The Priest and Levite violated no rule of law when they passed by on the other side of the wounded man. The Good Samaritan was not acting in obedience to a legal duty when he took compassion upon him, took care of him and removed him to the inn. What legal duty, if any, did defendant owe plaintiff? Unless the law imposed the duty upon the defendant to shelter her and her son in his house, it is clear that he cannot be held liable-The janitor, Mr. Barber, was- defendant’s employe, not his tenant. He possessed none of the rights of a tenant. School District No. 11 of Alpine Township v. Batsche, 106 Mich. 330 (29 L. R. A. 576). He had no right to bring into his employer’s house to live with him any one, whether well or ill, without his employer’s assent. Defendant had not invited plaintiff to his house, neither had he authorized his employé to do so.

The disease was infectious and dangerous to the tenants in the house, especially, perhaps, to one woman, who shortly before had given birth to a child. The doctor had notified the tenants of the danger. Defendant was undór no obligation to keep the .plaintiff in his house if she could be removed without danger of serious injury. He might lawfully request those who were responsible for her being there to cause her removal. He might not, neither did he, turn her into the street. He first requested his employé to cause her removal. When that employé failed,' he insisted and threatened to take prompt legal steps with an officer to accomplish it. She was not confined to her bed. There was testimony to show that defendant knew that plaintiff had a house of her own, but none to show that he knew where it was located. Her physician testified that defendant talked with him two or three times, and that he told him that she would-be much better if she was in her own house, but did not think it advisable to move her in her present condition: How long this was before she left is not shown. There is no evidence to show that she might not with comparative safety have been taken to her home in a cab or hack without danger. But even if there was some danger incident to her going, there was also danger to the other occupants of the house incident upon her remaining, and it was as much the legal duty of the defendant to look out for them as to look out for her. .She was able to walk and walked to the street car, made a change from one car to another, and walked two blocks- to her own home. It does not appear whether she" was able to hire a cab or hack, for which a very inconsiderable sum would have sufficed, or whether defendant had any information or knowledge as to her ability in this regard.

Counsel for plaintiff cite and rely upon Depue v. Flatau, 100 Minn. 299 (8 L. R. A. [N. S.] 485). The facts in that case are in no respect similar to those in this case. In that case the plaintiff was invited into the defendants' house, and while there he was taken suddenly ill and fell to the floor. He requested permission to remain over night but defendants refused. The defendants assisted him from their house to the cutter. Plaintiff could not hold the reins to guide his team, and one of the defendants threw the reins over his shoulders and started the team upon the road. The plaintiff was in the house of the defendants by invitation. He was temporarily their guest. While the court in that case could not find an “all-four ” precedent, they based their decision upon “the comprehensive principle that whenever a person is placed in such a position with regard to another that it is obvious that, if he does not use due care in his own conduct, he will cause injury to that person, the duty at once arises to exercise care commensurate with the situation in which he thus finds himself.”

That decision is founded upon just and sound principles. The defendants in that case violated a legal duty towards their guest and did an active wrong when they turned him out of their house in a winter night so helpless that he could not guide his horses, and left him to his fate. The record in this case contains nothing to bring it within that.

In Union Pacific R. Co. v. Cappier, 66 Kan. 649 (69 L. R. A. 513), it is said:

“With the humane side of the question courts are not concerned. It is the omission or negligent discharge of legal duties only which come within the sphere of judicial cognizance. For withholding relief from the suffering, for failure to respond to the calls of worthy charity, or for faltering in the bestowment of brotherly love on the unfortunate, penalties are found not in the laws of men, but in that higher law, the violation of which is condemned by the voice of conscience, whose sentence of punishment for the recreant act is swift and sure.”

Whatever aggravation of illness was caused in consequence of plaintiff’s removal, the physicians agreed that it was due more to excitement than to any other cause. There is no evidence from which the defendant might have inferred that such a result would follow, or that he had any intimation that the removal would excite the plaintiff, or that the excitement would aggravate her illness.

The defendant was guilty of no legal wrong, and the judgment is affirmed.

Montgomery, Ostrander, Hooker, and Carpenter, JJ., concurred.


text:
    RITZEMA v. VALLEY CITY BRICK CO.
    Master and Servant — Injuries to Servant — Dangerous Plage to Work — Obvious Danger — Assumption of Risk.
    Workmen in a clay pit .assume the risk of lumps of clay rolling down the sides of the pit when undermined, and the employer is not liable for an injury to an employé from such a source.
    Error to Kent; Wolcott, J.
    Submitted January 23, 19Q8.
    (Docket No. 143.)
    Decided March 31, 1908.
    Case by Gertrude Ritzema, administratrix of the estate of John Ritzema, deceased, against the Valley City Brick Company for the negligent killing of plaintiff’s intestate. There was judgment for defendant on a verdict directed by the court, and plamtiff brings error.
    Affirmed.

      Walter I. Lillie, for appellant.

      Bundy, Travis & Merrick, for appellee.
    Defendant manufactures clay brick. It obtains its clay from a bank about 200 feet long and quite high, but how high is not shown. The clay is broken down from this bank into a pit. At the proper distance in the pit from the foot of the bank is a railroad track. The clay is shoveled into the cars placed upon this track and conveyed to the brick machine. The track is from time to time moved nearer the base of the bank. The clay often comes down in quite large chunks. The clay, after being broken, is from 5 to 8 feet high. The large pieces must be broken up in order to be shoveled into the cars. Four men, called pickers, use picks to break up these pieces. After the pieces are properly broken the shovelers, of whom the deceased was one, shovel the clay into the cars. In this way they pass from one end of the pit to the other, the pickers being followed by the shovelers.
    Plaintiff’s decedent was a shoveler and had been engaged in the work for about two years. It was about time to cease work for the day. The deceased had set his shovel against the side of the car towards the bank. He had been throwing pieces of clay into the car with his hands. He started to get his shovel when a large piece of clay was dislodged without any action on the part of any one, rolled down from a height of about 5 feet, struck his shovel driving the handle against him and injuring him so that he died. The piece of clay was estimated to weigh about 200 pounds, and is charged in the declaration to have been 1£ feet thick, 3 feet long, and 3 feet high. It was daylight; the work was being done in the usual way. Chunks of clay were liable to roll down, and this deceased knew. It was the general understanding among the. employés that they must look out for each other and themselves. The situation at the time of the accident was the same as it had been every day. The pickers were subject to' the call of the shovelers at any time they considered a piece dangerous or desired to have it picked to pieces for shoveling. At the close of the plaintiff’s case the court directed a verdict for the defendant.
   Grant, C. J.

(after stating the facts). The instruction was clearly correct. The dangers were obvious. The workmen were perfectly familiar with the fact that these chunks would roll down the bank when undermined, and they needed no superintendent or foreman to inform them of that fact, or to warn them against a danger which they knew as well as, and perhaps better than, any one. It was not the duty of the defendant to employ a man to watch and inform its workmen when there was danger. The case is ruled by Welch v. Brainard, 108 Mich. 38; Livingstone v. Glass Co., 146 Mich. 236.

Judgment affirmed.

Montgomery, Ostrander, Hooker, and Carpenter, JJ., concurred.


author: Grant, O. J.

text:
    ROLLO v. CITY ELECTRIC RAILWAY CO.
    1. Street Railroads — Children Near Tracks — Personal Injuries — Liability of Railroad Company.,
    In an action against a street-railroad company for injuries to a child of tender years caused by the motorman’s failure to stop his car when the child attempted to cross the track ahead of his car, instructions to the effect that there was no duty or obligation on the part of the company to slack or stop its cars every time a young child, unattended by older persons, appeared on the street at some distance ahead of or near the car, and that if, from a place that was apparently safe, the child suddenly rushed upon the track when it was too late for the motormán to stop his. car, he having already taken all the precautions dictated by prudence, the accident was unavoidable and there could be no recovery by plaintiff, are sufficiently favorable to defendant.

      2. Appeal and Error — Reversal —Unimportant Error —Responsibility op Party Complaining.
    Judgment in an action by an infant for personal injuries will not be reversed for failure of the court to limit the damages recoverable to the probable diminution of plaintiff’s earnings after maturity, where the question was not raised until the briefs were filed in this court and the plaintiff’s father immediately filed a release of his claim for such services against the defendant.
    Error to St. Clair; Tappan, J.
    Submitted January 24, 1908.
    (Docket No. 130.)
    Decided March 31, 1908.
    Case by Harry Rollo, by next friend, against the City Electric Railway Company for personal injuries. There was judgment for plaintiff, and defendant brings error.
    Affirmed.

      Phillips & Jenks (James Q. Tucker, of counsel), for appellant.

      Frank T. Wolcott and John B. Mcllwain, for appellee.
    Plaintiff, a child about two and a half years old, while crossing defendant’s tracks on the outskirts of the city of Port Huron, about 4 o’clock in the afternoon, was struck by one of defendant’s cars- and seriously injured. For this injury he recovered a verdict and judgment of $10,000. The attorneys for each party made a statement of the claim-which was read by the court to the jury. The issue involved will, perhaps, appear more clearly and briefly from those claims than from either statement of facts made in the briefs of counsel, or by one that might be made by the court. They are as follows:
    It is the claim of the plaintiff that the street was unobstructed at the time; that the presence of the child and his companion in the street in close proximity to the tracks could have been seen for a distance of upwards of 700 feet | that the car was running at a speed of 12 miles an hour; and as the plaintiff and companions were crossing said street in front of said approaching car, the motorman in charge of said car made no attempt to slacken down the speed of the car to get it under control until within a short distance of the plaintiff and too late to avoid striking him; and that the act of the motorman in charge of the car in so running the car as to strike the plaintiff was reckless and negligent; and this-action is brought to recover damages for the injuries sustained. These are the claims set forth by the plaintiff’s statement.
    The claim of the defendant in this case is that the plaintiff, a child of two and one-half years of age, in company with another child of tender years, was on the day in question and about three o’clock in the afternoon, playing on Military street at a point opposite the residence of W. L. Wilson, and near the east curb line of the street. The two tracks of the defendant company occupy a space of 14 feet 6 inches in the center of the paved portion of the street, the pavement being 40 feet in width; and the two children were at some point between the east rail of the east track and the east curb line of the street; that the position which they occupied was not one of danger in so far as cars operated on the west track are concerned; that the defendant’s car, and the one which afterwards struck the plaintiff, was at the time the children were so located, proceeding south on the west track at a lawful rate of speed; and that the motorman saw the children and had them in sight from the time when the car hacLarrived within a distance of about 600 feet of where the children were playing; that no claim is made that the position of the children at this time was one of danger, and that the claim of the defendant to this extent is undisputed. The defendant also claims that when the car had arrived within a distance of 400 feet of the point where the children were, the motorman began to sound his gong and continued to sound it until the time the plaintiff left the position where he had been and started to cross the tracks to the west; that when the car had reached a point about 200 feet from the point where the accident occurred, the current was shut off and was not turned on again until after the accident ; that when the car reached a point about the middle or near the south line on Tenth street intersection or about 50 feet or thereabouts north of the line where the child was struck, the plaintiff suddenly left the position in which he was playing and ran quickly to the west in the direction of the west track and in front of the moving car; that the motorman was standing in the front of the car with his hand on the brake; and that immediately on the plaintiff starting, he, the motorman, applied the brake and made every possible effort to stop the car and prevent striking the child, but was unable to do so by reason of the fact that the quick movements of the plaintiff and his sudden crossing of the track did not leave sufficient time for any person to have stopped the car in time to avoid striking the child; that by reason thereof, every step that was possible to take was taken and that no duty was avoided and no negligence committed by the motorman; and that no matter how serious the consequences may be to the child, there is no liability on the part of the company.
    Each party gave evidence in support of his claim.
    In reply to a special question the jury found that the plaintiff did not start across the street in front of the approaching car after the car had reached the north line of Tenth street. That line was 50 feet from the place of the accident and when the car was at that point it is the claim of the defendant that the child started across the street in front of the approaching car.
    It seems to be admitted that the motorman saw the child at a distance of 600 feet; that he shut off his current when 200 feet, and that he did not attempt to stop his car until within 50 feet. The special finding of the jury seems to have established the fact that the child started across when he was some 125 feet from the car.

       As to duty to avoid injuring children on street-railway track, see note to Wallace v. City & Suburban R. Co. (Or.), 25 L. R. A. 663.

   Grant, O. J.

( after stating the facts). The two principal errors relied upon for reversal are the refusal of the court to give the following requests to charge:

“ It was not the duty of the motorman to make any attempt to stop tbp car until the time' when the plaintiff’s movements indicated an intention on his. part to move in the direction of the tracks. And if you find that he made every reasonable effort to stop his car as soon as the child started moving toward the tracks, he performed his whole duty, and the defendant is entitled to a verdict.

“While it was the duty of the'motorman to exercise reasonable care under the circumstances shown by the proofs in this case, he was not required to anticipate that the children would attempt to cross in front of the moving car, nor was he required, to check his car in anticipation of such a movement.”

An examination of the oral charge of the court shows that the substance of these. requests was given. After stating that both the plaintiff and the defendant had a lawful right to be upon the street, the court instructed the jury: '

“You are instructed that the degree of care required by a motorman in running his car, is-such care as a careful and prudent man would use under the circumstances of each case that requires care to avoid an accident. The question invariably is: What should we expect a careful and prudent man to do under the circumstances of the cáse before us ? And in applying this rule in this case, you are to consider the age and location of the plaintiff at the time-of the accident and immediately prior thereto.

“In the case of an adult occupying the position of the plaintiff he could not recover in this action from the fact that his age and his discretion would operate to warn him of danger. This rule, however, does not apply in the case of this child who was only two years and a half of age at the time of the accident. Such a child has not reached the age and discretion to protect himself. This fact makes it incumbent upon the motorman having charge of the car, to take greater precaution to protect such child and the plaintiff in this case than would be required in the case of an adult similarly situated. For this reason, it is important in this case that you take into consideration the situation of the parties, of the child, its age, its position or movements on the pavement and all of the surrounding circumstances, in order to determine whether the defendant, through its motorman, performed its full duty in protecting the child and in preventing this accident.

“Now, gentlemen, in this connection, coming to the question of the defendant’s duties in running its car on the day in question, you are further instructed that there is no duty or obligation on the part of the defendant company, to slack or stop its cars at every time a young child, unattended by older persons, appears on the street at some distance ahead of or near a car. Such a rule applied, would, in many localities, make it practically impossible for the company to render reasonably efficient service to the public. And in this case, if you find that the motorman had taken all the precautions that a reasonably cautious and prudent man should take under the circumstances, and if, from a place that was apparently safe to a reasonably prudent man, the child suddenly rushed upon the track when it was too late for the motorman to stop the car, then the accident was unavoidable and there could be no recovery by the plaintiff.”

Other language might be quoted from the charge to the similar effect. We think that the instructions were correct and carefully stated the legal rights and obligations of the parties to this unfortunate accident. See Thompson, on Negligence (1st Ed.), pp. 398, 1129; Beach on Contributory Negligence (1st Ed.), p. 395; Barnes v. Railroad Co., 49 Am. St. Rep. 400 (47 La. Ann. 1218).

Error is assigned upon the failure of the court in his ■oral charge to instruct the jury that they must limit plaintiff to such loss of earning capacity as would ensue after he had reached his majority. No argument is required to show that an instruction to that effect would have correctly stated the law. It is stated in defendant’s brief that the father has an action now pending to recover for the loss of his son’s services before his majority. For some reason the question was not raised upon the trial. We assume that the amount of damages was argued to the jury. If so, the argument must have been based upon the theory that the plaintiff was entitled to recover for loss of services during his minority. A suggestion to the court by counsel for either side would have avoided the error. There would be considerable_force in holding that the question, not having been raised upon the trial, cannot now be raised. Tunnicliffe v. Railway Co., 107 Mich. 261; Carter v. Bedortha, 124 Mich. 548; Hewitt v. Lumber Co., 136 Mich. 110.

The damage's which the plaintiff recovered during that period could not materially vary from that which the father would be entitled to recover. In either event the expense of his clothing, living, and maintenance would be deducted from the amount he would probably earn. After the point was raised by counsel for the defendant in their brief in this court, the father filed a release of all claim for such services against the defendants This action certainly released defendant from any further liability to the father. It is as good a release to the defendant as though the father had released his claim before suit was brought, or had emancipated his son. Under these circumstances we think the defendant is not entitled to a reversal of the case for an error for which it at least is partly responsible.

Judgment affirmed.

Montgomery, Ostrander, Hooker, and Carpenter, JJ., concurred.


text:
    JOHNSON v. DESMOND CHEMICAL CO.

      1. Appeal and Error — Review — Decision on Demurrer — Grounds.
    Where, after decision on demurrer was announced, plaintiff requested the court to state the reasons for sustaining the demurrer, which he did, but it does not appear from the record that notice of the request for special reasons was served upon the defendant, the court will treat the case as though the judgment were a general one sustaining the demurrer for the reasons stated therein.
    3. Same — Assignments oe Error — Sustaining Demurrer —SUFFICIENCY.
    An assignment of error that the court erred in sustaining the demurrer to plaintiff’s declaration is sufficiently specific.
    3. Master and Servant — Injuries to Servant —Action — Declaration— Sufficiency.
    In an action by a servant for personal injuries, a declaration alleging that plaintiff was ordered into a place of danger outside the scope of his employment, without acquainting him of the dangers and the proper method of doing the work, sufficiently charges defendant with negligence.

      4. Same — Averments—Methods of Work.
    It is not essential to set out the various proper ways in which work of the character described may be done, if, ás a matter of fact, defendant is charged with and shown to have employed an improper method in the particular case.
    5. Same — Assumption of Risk — Scope of Employment.
    An employé, by his contract of employment, assumes those risks of injury which are properly incident to. his employment and about which he may inform himself by observation; but when, by direction of his master, he is engaged in work outside the scope of his regular employment, the most that can be said is that he may be negligent in undertaking work which is obviously dangerous to one of his experience and intelligence.

      Error to Grand Traverse; Davis, J., presiding.
    Submitted January 23, 1908.
    (Docket No. 138.)
    Decided March 31, 1908.
    Case by Frank W. Johnson against the Desmond Chemical Company for personal injuries. There was an order sustaining a demurrer to the declaration, and plaintiff brings error.
    Reversed.

      George C. Brown (Golin P. Campbell and Pratt & Davis, of counsel), for appellant.
    ■ Parm G. Gilbert ( John W. Patchen, of counsel), for appellee.

       As to duty to warn or instruct servant as to dangers of work, see note to James v. Rapides Lumber Co. (La.), 44 L. R. A. 83.

       As to assumption of risk or contributory negligence in obeying a direct command, see note to Dallemand v. Saalfeldt (Ill.), 48 L. R. A. 753.

   Montgomery, J.

The plaintiff- brought an action for negligent injury, and the case was determined adversely to him on a demurrer to the declaration. From the judgment entered upon the demurrer, he brings error. The demurrer stated among other things:

“ Said declaration does not allege nor set forth negligence on behalf of defendant, and does not show plaintiff to have been ih the exercise of due care.

“Said declaration shows that plaintiff was guilty of contributory negligence.

“Said declaration is framed on the theory that plaintiff was placed in a new occupation and- subjected to hidden dangers and thereby injured, but the declaration does not specify nor name any hidden dangers.

“Said declaration shows that the place of plaintiff’s employment, the tramway, the track, the car and the tools there in use by plaintiff were all in plain view, and the conditions and surroundings were readily discernible by plaintiff and that the plaintiff by the exercise of ordinary care and prudence could have avoided the accident. * * *

“Said declaration shows that all the danger alleged therein was obvious and assumed by plaintiff when he undertook to replace the car on track.”

To state briefly the averments of the declaration: It is averred that the defendant owned and operated a plant in Benzie county for the manufacture of wood alcohol, charcoal, and kindred products; that this plant was equipped among other things with tram cars and tramways usual and necessary for the operation of such a plant; that leading from the defendant’s coolers was an inclined tramway having thereon a track upon which tram cars loaded with charcoal from the coolers were run for the purpose of loading the charcoal into cars placed on the railroad track beneath; that at its highest point it reached an elevation of 20 feet; and that the cars used weighed about 2,000 pounds and consisted of an iron body or box and two single trucks, one placed at each end of the car.

The plaintiff was engaged by the defendant in operating and managing the retorts for the manufacturing of wood alcohol. These duties in that behalf consisted in running tram cars loaded with wood from the tracks into the retorts and running them out to the coolers when the wood alcohol had been extracted and the wood converted into charcoal. It is averred that on the 29th of March, 1904, while at his usual employment, he was directed by the defendant to withdraw from his usual employment, to wit, operating and managing said retorts, and enter into a new and dangerous employment, to wit, replacing a derailed tram car on the track at a point about 20 feet above the ground on said inclined tramway; that while engaged in the placing of said tram car on the track, and while in the exercise of all due care, diligence, and caution, and without negligence on his part, while prying said car back on the track with a crowbar, he was knocked down from said inclined tramway by reason of said car slipping from the face of the jack upon which it had been raised, and said plaintiff was precipitated onto the railroad track 20 feet below.

The declaration avers that the work of replacing said tram car on the track was dangerous work; that the dangers thereof consisted in the liability of said tram car to sway or slip while being replaced with a jack and crowbar; that the dangers thereof were hidden and not apparent to a person inexperienced in that employment, and that plaintiff, being inexperienced, did not appreciate or understand the dangers of such employment, and that the work of replacing said tram car on the track was new and different from plaintiff’s usual employment for said defendant, to wit, operating and managing the said retorts ; that plaintiff had no knowledge of operating, handling or replacing such cars on the track, and no knowledge of the dangers to be risked in replacing such cars on the track, and no knowledge of the proper method employed to replace such cars on the track.

Plaintiff avers that it was well known to the defendant that plaintiff had no such knowledge of tram cars and replacing them on the track, and no knowledge of the proper method to be employed in replacing such, cars on the track, and no knowledge of the dangers to be risked in replacing such cars on the track. '

He further avers that while he was employed by the defendant, he received no directions or instructions from the said defendant as to the proper method to be employed in replacing such cars on the track, and no warning of the dangers to be risked in such work.

The'declaration further avers the defendant’s duty to provide a safe place and to give proper instructions, etc., and to avoid sending the plaintiff to a new and different and dangerous employment without explaining fully the proper method to be employed in performing the duties of such new employment. It avers the disregard of duty in that regard in detail and the injury.

The case was heard before Judge Davis, of the eighth judicial circuit, and after the decision was announced, he was asked and stated the reasons for sustaining the demurrer, and stated them as follows:

“There must be enough in this declaration so that the court can give an opinion whether there has been negligence. The plaintiff has alleged in his declaration that there were safer methods of doing this work, but he has failed to point out what he considers safer methods. I believe that under the rules of pleading this should be alleged in the declaration. It is said that there are safer methods but not what such safer methods are.

“Again, it is alleged in the declaration that plaintiff was injured by the car slipping from the face of the jack upon which it had been raised. I believe the declaration should point out specifically the negligence complained of and the facts should be stated with such detail that the court could say that there had been negligence on the part of the defendant and not contributory negligence on the part of the plaintiff. I believe the defendant is entitled to be confronted with what plaintiff believes a safer method and that he is entitled to be confronted with a more specific allegation as to the manner of the injury as set forth above. The declaration says, to quote from it, that while plaintiff was replacing the tram car ‘while prying said tram car back on the track with a crowbar he was knocked down from said incline tramway by reason of said tram car slipping from the face of the jack upon which it had been raised,’ etc. It does not appear to me from this allegation that the plaintiff was not guilty of contributory negligence. For these reasons the demurrer was sustained.”

It is contended by the plaintiff that the reasons stated are not reasons assigned in the demurrer filed, and that as the demurrer was sustained upon these grounds, there is really nothing before the court for its consideration.

On the other hand, it is said that these reasons stated are no part of the record, and that if the declaration is subject to the objections stated in the demurrer, the judgment sustaining the demurrer should be affirmed.

In view of the fact that no notice of the request for special reasons was served upon the defendant, so far as the record discloses, we are disposed to treat the case as though judgment had been a general one sustaining the demurrer for the reasons stated therein.

It is stated that the assignment of error that the court erred in sustaining the demurrer to the plaintiff’s declaration is not sufficiently specific and definite. We do not understand how it could well be more so. The plaintiff has been turned out of court upon the record made by defendant, and this is what he complains of. If upon the record there was no justification for the entry of that judgment, he has a right to complain, and about the only complaint that he can well make is that he has been thus defeated in his action.

We think if it can be said that the plaintiff has shown himself to be free of negligence by his declaration, the negligence of the defendant is sufficiently set out in the averments that the plaintiff was ordered into a place of danger outside of the scope of his' employment without acquainting him of the dangers and the proper method of performing the work. We think, moreover, that it is not essential to set out the various proper ways in which work of this .character may be done,- if as a matter of fact defendant is charged with and shown to have employed an improper method in a particular case. The real meritorious question presented by the record is, in our judgment, whether plaintiff should be held to have assumed the risk and whether he was guilty of negligence contributing to the injury. These questions, while distinct, are closely allied, and it is to be noted that the case is not the ordinary case presenting the question of assumption of the risks of an employment by an employé, but in this case it is averred that the plaintiff was directed out of the line of his employment and that he did not in fact know of the danger of the car sluing around and exposing him to injury. If these averments be accepted as true, as they must be from this record, then it would follow that if that danger was not obvious to a man of the plaintiff’s intelligence and experience, he could not be held to have assumed the risk or to have been in the wrong in following the direction of the employer. A clear distinction is to ~be noted between a case in which an employé receives an injury while in the line of his regular employment and one in which such injury occurs while he is engaged in work for which he was not employed. In the former case he is held to have assumed the risk by his contract of employment, and it is held that such assumption of risk involves some duty of observation with a view to informing himself of the dangers to which he may be subjected. In the latter case, the most that can be said is that the employe may be guilty of negligence in undertaking work to which he is directed out of the line of his employment when such 'work is obviously dangerous to one of his experience and intelligence.

As was said in Chicago, etc., R. Co. v. Bayfield, 37 Mich. 205, 211:

“ The risks the'servant actually assumes are only those which are properly incident to the employment; and he may always require the master to respond for injuries resulting from his personal negligence.- Cases of .this sort occur where the master exposes the servant to unsafe machinery or sends him into places where there are risks of which he is ignorant. * * * This principle may be applicable even when the risks are apparent and fully open to observation, provided the servant from his youth, inexperience or other cause is incapable of fully understanding and appreciating them'. * * * Now in this case the servant was inexperienced; and though it would perhaps be apparent to him that the service on which he was sent was more hazardous than that he had engaged for, yet this must have been still better understood by Smith, and we think in this particular, as well as in respect to sending hipa upon the service at all, the risk was not fairly upon the servant’s shoulders.”

See, also, Walker v. Railway Co., 104 Mich. 606; Gill v. Homrighausen, 79 Wis. 634; and McClure v. Railroad Co., 146 Mich. 457.

The latter case is quite similar to the present. In that case decedent had been ordered by an incompetent foreman underneath a car, which was resting upon jacks only, to perform work, and upon the question whether the risk was so obvious that plaintiff should have been held to have assumed the risk, it was said:

“The case is near the border line, but we think the fact, if it be the fact, that the deceased was ordered under the car by one in authority who was incompetent, is to be taken into account in determining whether deceased was negligent in not informing himself of the danger.”

This question, involving as it does the question of the plaintiff’s intelligence and experience, and it being averred that he was in the exercise of due care, and that-the danger was unknown to him, it cannot, on this record, be determined as against these admitted averments that the facts were otherwise. The testimony, when adduced, may present a very different case, and may show conclusively the plaintiff’s contributory negligence. But on this record that does not appear, as a matter of law, and for this reason we think the dernurrer was not sustainable on this ground. It follows that the judgment should be reversed, and a new trial ordered, the plaintiff to recover costs of this court and of the hearing on demurrer in the court helow.

Grant, C. J., and Ostrander, Hooker, and Carpenter, JJ., concurred.


author: Hooker, J.

text:
    DETROIT RIVER TRANSIT CO. v. UNION TRUST CO.
    1. Certiorari — Allowance—Discretion.
    The writ of certiorari is a discretionary writ and not a writ of . right, it being a well known common-law writ of established character, and always dependent upon allowance.
    2. Same — Statutory Provisions — Character, of Remedy.
    There is nothing in Act No. 310, Pub. Acts 1905, indicating an intention on the part of the legislature to modify the writ of certiorari, or the practice regarding it, from that already established, or to make it a writ of right for the purpose of reviewing orders on jurisdictional questions.
    3. Same — Order Overruling Demurrer — Discretion as to Grant of Writ.
    Upon application for a writ of certiorari under Act No. 310, Pub. Acts 1905, to review an order overruling a demurrer to a declaration upon the ground of misjoinder of causes of action, the court, in the exercise of its discretion, denied the .writ.
    Certiorari to Wayne; Rohnert, J.
    Submitted January 31, 1908.
    (Calendar No. 22,725£.)
    Decided March 31, 1908.
    Assumpsit by the Detroit River Transit Company against the Union Trust Company, administrator of the estate of Joseph H. Berry, deceased, for breach of warranty. There was an order overruling a demurrer to the declaration, and defendant brings certiorari.
    Dismissed.

      Angelí, Boynton, McMillan & Bodman, for appellant.

      George W. Radford, for appellee.
   Hooker, J.

The plaintiff commenced an action by filing a declaration consisting of the common counts in assumpsit and a special count for breach of warranty in a contract for the sale of chattels. Defendant demurred to the declaration upon the ground that it joins two inconsistent causes of action, and, said demurrer having been overruled, has filed an affidavit in support of an application for a writ of certiorari to review the order overruling the demurrer under Act No. 310, Pub. Acts 1905, asking an order staying proceedings in the circuit court during the pendency of said motion. This was an ex parte application for an allowance of the writ, which has been the usual practice where a writ of certiorari has been desired.

The question involved in the demurrer is whether an action of assumpsit for breach of warranty (see Tatro v. Brower, 118 Mich. 615; Murphy v. McGraw, 74 Mich. 318) is necessarily inconsistent with an action upon the common counts, it not appearing in the record that it was intended that the common counts and special count should relate to the same transaction.

The court asked briefs on the question: ‘' Whether the statute made the writ of certiorari a writ of right in this class of cases ? ” We have held in many cases that the writ of certiorari is a discretionary writ and not a writ of right, it being a well known common-law writ of established character, and always dependent upon allowance. Specht v. City of Detroit, 20 Mich. 171; In re Lantis, 9 Mich. 325; Tucker v. Parker, 50 Mich. 6; Farrell v. Taylor, 12 Mich. 114.

Counsel apparently understood that, to obtain this writ, he must ask an allowance by the court, a superfluous proceeding and one of mere form, if entitled to it as a matter of right. We so held in People v. Chamblin, 149 Mich. 653, 655.

If it be conceded that the interests of justice require the review of orders on jurisdictional questions in some cases, a certiorari as a writ of right, in all cases, would offer the temptation of frivolous demurrers and motions wherever an advantage could be gained by delay.

The statute provides that certain questions may be reviewed' by certiorari. We find nothing indicating an intention on the part of the legislature to modify the writ or the practice regarding it from that already established. In the exercise of our discretion we feel constrained to deny the writ.

Grant, C. J., and Montgomery, Moore, Carpenter, and McAlvay, JJ., concurred. Blair and Ostrander, JJ., concurred in the result.