text:
    McINTYRE v. TOWNSHIP OF GRANT.
    1. Municipal Corporations — Townships—Highways and Streets —Personal Injuries — Notice—Statutes.
    Section 8, Act No. 301, Pub. Acts 1915 (1 Comp. Laws 1915, § 4591), requiring tbe filing of a claim in writing within 60 days from the time of the happening of any injury caused by the defective condition of a highway, is limited in its provisions to “any city or incorporated village of this State where written notice of such injury and defect is now required hy law to he served upon such village or city before recovery can be had,” and does not apply to townships.

    2. Same — Contributory Negligence.
    In an action against a township for personal injuries caused by plaintiffs team going into a hole in the highway, where there was testimony that plaintiff and his sisters had safely passed by the defective spot earlier in the evening hy following the tracks, hut that when they returned a recent fall of snow had obliterated the tracks and covered the hole, and although he had the defect in mind, he misjudged the distance and the injury occurred, the question of plaintiff’s contributory negligence was properly submitted to the jury.
    3. Same.
    Where the location of the hole in the highway was in dispute, plaintiff testifying that it was in the traveled portion thereof, and defendant’s witnesses placing it by measurement at various distances therefrom, an instruction by the court in relation thereto that “In this connection you should take into consideration the date of observation when estimates are testified, and the time at which the measurements were made, and determine whether or not changes have been made in the location,” held, not prejudicial to defendant’s claims.
    4. New Trial — Weight oe Evidence — Excessive Verdict — Damages.
    Where there was abundant evidence to support the plaintiff’s claim as to how the accident happened, and also as to the extent, seriousness, and permanency of his injuries,
      held, that the verdict for ?5;000 damages was not against the weight of the evidence, and was not excessive.

      On excessiveness of verdict for personal injuries other than death, see comprehensive note in L. R. A. 1915F, 30.
    Error to Huron; Beach, J.
    Submitted April 11, 1919.
    (Docket No. 36.)
    Decided May 29, 1919.
    Case by Archibald D. McIntyre against the township of Grant for personal injuries caused by a defective highway. Judgment for plaintiff. Defendant brings error.
    Affirmed.

      X. A. Boomhower, for appellant.

      George M. Clark, for appellee.

      On notice of claim for .injury as essential to liability of town for injury by defects in highway, see note in 13 L. R. A. (N. S.) 1228.

   Kuhn, J.

Plaintiff and his two sisters, Mrs. Euphemia Hunter and Miss Mary McIntyre, had spent the evening of January 24, 1917, at the home of a neighbor, John Allison, on his farm in Grant township, Huron county, and about half-past twelve that night started to drive, with team and cutter, to their father’s farm in the same township, where they resided. It had been snowing and storming during the evening and continued to snow a little during their return trip. Their way led past a “four corners” known as. the “hogsback,” which they approached from the north. Prom the corner north for about 115 feet the- gravel had been dug out, forming a sort of basin with banks 12 feet high in places. On the west side of the north and south highway over which their course lay, and just north of the north boundary of the east and west cross road, was a hole about 12 feet long, north and south, 9 feet wide, and 3 feet deep. There is a dispute in the testimony as to its exact location with reference to the traveled portion of the highway, the plaintiff. claiming that it extended into the same about the width of the wagon tracks, that is, four or five feet, while the defendant claimed it was entirely outside the traveled portion of the road, some of the witnesses placing it as far as 12% feet away. It was admitted that this portion of the highway belonged to the defendant township. Plaintiff and his sisters knew of the existence of this hole, and had passed by it safely on their way over to Allison’s earlier in the evening, at which time both the plaintiff and Mrs. Hunter had been able to discern it, though not till they were nearly opposite it, because of the darkness and the covering of snow. Plaintiff was then able to avoid it by following the sleigh tracks, still visible, which formed a sharp jog or elbow as they turned around the hole, passing within a foot and a half or two feet of its edge. On the return trip the sleigh tracks in the road were entirely covered with the fresh snow, and as they approached the top of a hill near the cross roads, Mrs. Hunter urged plaintiff to be sure and watch for that hole. At that time the horses were going at quite a brisk trot. Near the top of the hill plaintiff began to slow the team down and continued to slow them until, just as he was about to make the turn around the hole as he estimated its location, the team went into it, taking the cutter with them. The occupants were thrown out, the horses broke loose from the cutter and dragged plaintiff by the lines a distance of about five rods. When he fell out of the cutter, his back and hip struck against the side of the hole, and when the horses stopped he was unable to get up for a while, but soon was able to go some 60 rods to a neighbor’s, who took them home in his sleigh. Plaintiff felt pain in his back and hip that night, and the next morning Dr. Morris, of Cass City, was called, who put some adhesive tape on plaintiff’s back and gave him some medicine. Plaintiff remained in bed till February 6th. Plaintiff saw Dr. Herrington in February, who took off the adhesive tape and put on some more. Plaintiff and his father were at the meeting of the township board of Grant township on March 19, 1917, and made a demand for $1,000. There is some dispute as to the account plaintiff then gave of the accident. Plaintiff and his father also met the township board at the hogsback on March 26,1917, and plaintiff showed the board the hole where he claims to have been injured. Upon election day, in April, plaintiff was at the town hall, and his claim was taken up there. The hall was full of people, and there is a dispute as to what plaintiff then said as to the manner of his injury. On April 4th plaintiff removed the adhesive tape and went to visit an uncle, who lived in Canada about 80 miles from Sarnia. On April 8th his uncle took him to Dr. Axford, of Alverson, who put adhesive tape on his back. On April 10th plaintiff and his uncle came to Detroit and consulted Dr. McAlpin. Three X-ray photographs were taken of his back and hip, and plaintiff was put into a plaster of paris cast and remained at Harper Hospital until April 21st. He then returned to his uncle in Canada and remained till the 16th or 17th of May, when he returned to Detroit and Dr. McAlpin put belts on him. He returned to Canada, remained till June 3d, when he again came to Detroit and had another X-ray taken. He seemed considerably improved. The doctor told him to wear the belts and follow the instructions of Dr. Morris, of Cass City. He felt better for a time, but in July Dr. Morris found it necessary to put adhesive tape on him, and in November he again went to Detroit, where another X-ray examination was had and plaintiff was again put in a plaster of paris cast at Harper Hospital. The cast was on until about the first of March, though he had returned home in the meantime. In March he returned to Detroit and a new cast was put on, which he was wearing at the time of the trial of this suit, which plaintiff had in the meantime brought against the township for his injuries.

At the close of plaintiff’s proofs, defendant moved for a directed verdict, but the motion was denied. After putting in its evidence, defendant renewed the motion, which was again denied, and the case was submitted to the jury, who returned a verdict of $5,000 in plaintiff’s favor. A motion for a new trial was also denied, and the case is now before us on writ of error.

Defendant’s motions for directed verdict were based upon two grounds:

First Because the plaintiff had failed to file a claim with the township board, or any of its officials, for his injuries.

Seeoúd. Because the accident was caused or produced by the contributory negligence of the plaintiff.

1. Under its first assignment of error, defendant contends that section 8 of Act No. 301, Pub. Acts 1915 (1 Comp. Laws 1915, § 4591), requires the filing of a claim in writing with the township board within sixty days from the time of the happening of any injury caused by the defective condition of a highway. The provision of the statute referred to is, however, by its terms limited to “any city or incorporated village of this State where written notice of such inquiry [injury] and defect is now required by law to be served upon such village or city before recovery can be had.” It does not apply to townships.

2. The assignments of error which are argued most fully in the briefs of counsel and which seem to raise the principal question in the case, are those relating to the question of plaintiff’s contributory negligence, it being the contention of defendant that the court should have directed a verdict in its' favor on the ground that, under the evidence, plaintiff was shown to be guilty of contributory negligence as a matter of law. In his brief defendant’s counsel states:

“In this case the plaintiff knew
“(1) The exact location of the hole;
“(2). He had the defect in mind;
“(3)' He knew the track was.within 1% to 2 feet from the hole when he went over five hours 'before;
“ (4) He knew there was a sharp* turn to be made when he came to the hole; '
. “(5) He knew upon his return that the track and everything was filled up with snow so there was nothing to guide him;
“(6) He knew there was a safe way around the hogsback;
“(7) He knew the exact distance he was from the hole when he arrived at the top of the last hill;
“(8) He knew the team would arrive at the hole first;
“(9) He knew he could not see the hole until he got ‘right up to it’;
“ (10) He knew the hole was dangerous.
“Knowing all these things, Mr. McIntyre continued to trot the team right down into the basin at the hogs-back and attempted in the dark to guess the exact spot where he was to pull his horses eastward to avoid destruction. * * * Under these circumstances, was not plaintiff guilty of contributory negligence precluding a recovery by trotting his team until they struck the hole? Can he excuse himself by saying, T misjudged my distance?’ ”

We think, however, that the action of the circuit judge in submitting the question of plaintiff’s contributory negligence to the jury was correct. The question has been before this court many times in cases involving similar situations, and we have held almost uniformly that the question is one for the jury. These decisions will be found collected in the opinion of Mr. Justice Bird, speaking for this court, in Sherman v. Power Co., 199 Mich. 543, at page 548. In the Sherman Case it was held that the question of contributory negligence was for the jury, notwithstanding the fact that the plaintiff there, in the day time, drove into a trench or depression in a city street, the existence of which was well known to him, and which he had in mind, his explanation being that his attention was momentarily diverted to his horses, one of which was frightened by some approaching automobiles. These facts would seem to present a stronger case of contributory negligence than those in the case before us. A state of facts resembling more closely those here involved will be found in Sias v. Village of Reed City, 103 Mich. 312 (cited in the Sherman Case), from which we quote the following:

“The plaintiff testified, in substance, that the injury occurred about 9 o’clock in the evening of the 9th of April, 1893. The night was dark and stormy. Plaintiff, with two other ladies, had been to make a call, and she received the injury on the return trip. She knew of the fact that there was a bad place in the walk, and had spoken about it to the young ladies with her on the way over. On their way back it was snowing somewhat, striking them in their faces. The plaintiff again called the attention of the ladies with her to the defective place in the walk, saying: ‘We will have to look out for that bad place in the walk.’ It snowed a little harder coming back than on the way over. The plaintiff was walking on the outside of the walk, and the other two girls on the inner side. They walked somewhat rapidly in that way, without changing positions, until the plaintiff stepped into the defective place and received the injury. The plaintiff testified:
“ ‘It was not so dark but wbat one could See tbe Gabel bouse If be was looking for it. I was paying attention to tbe defect in tbe sidewalk as I came back, watching for it; but I got to it sooner than I expected.’
“Defendant’s counsel strenuously insists that this evidence conclusively showed contributory negligence. But we think the case is ruled by the previous decisions of this court. * * *
“The case of Lowell v. Township of Watertown, 58 Mich. 568, is directly in point. Mr. Justice Champlin, speaking for the court, said:
“ ‘The defendant’s counsel claim that bis (plaintiff’s) knowledge of tbe defect, and bis having it in bis mind at tbe time, was conclusive evidence of his want of ordinary care in stepping into the very hole he had it in min'd to avoid; and that for this reason the case should have been taken from the jury. We cannot accede to this view. A person is not necessarily precluded from recovering for an injury caused by a defect in a highway simply for the reason that he was aware of such defect; but this fact, with all others, is proper to be taken into consideration by the jury in determining whether, under all of the facts and circumstances, he was guilty of such carelessness or negligence without which he would not have been injured.’ ”

The above case involved every essential feature of the case at bar — the darkness, the snow, a trip made safely past the danger spot earlier in the evening, a warning on the return trip to be on the lookout for the defect, the continuing at a rapid, gait right into the hole, a knowledge of the exact location of the spot, and a misjudging of the distance. The case of Harris v. Township of Clinton, 64 Mich. 447 (8 Am. St. Rep. 842), is, in some respects, also in point. There plaintiff’s bailee, in daylight, drove off the edge of an unguarded embankment close beside the submerged highway, into deep water, the road having become more deeply submerged by the rising water on his return trip than when he passed the spot earlier in the day. In the course of the opinion it was said:

“It should be remembered that the risk of driving off the embankment when obscured by the overflow of water was no greater than the risk of driving off on a dark night. In one case the visioh is obscured by water, and in the other by darkness; and it would hardly be claimed that it would be negligence per se to attempt to drive over this portion of the highway on a dark night. Whether it would be negligence in a particular instance would depend upon all the facts and circumstances, which should be submitted to the jury.”

In the instant case the covering was snow instead of water, and there was the added difficulty of the darkness. We are unable to distinguish this case from those above referred to. The question of contributory negligence was properly submitted to the jury.

3. The learned trial judge, in charging the jury with reference to the value to be placed on certain testimony, said:

“In determining the'location of the hole in question as testified to by the several witnesses, you are to take into consideration their opportunities for observation, their source of information and means of obtaining the same. And, other things being equal, the testimony of a witness as to location and distances based on actual measurements, should prevail over ,the testimony of a witness based on mere estimate or opinion. But in this connection you should take into consideration the date of observation when estimates are testified, and the time at which the measurements were made, and determine whether or not changes have been made in the location.”

It is now urged that the latter part of this charge beginning with the words, “But in-this connection,” was improper, because it is claimed that the plaintiff testified that during the months of March and April the road was in the same condition as in the fall before, except for the snow, and that in view of this testimony, the court improperly limited the charge as above set forth. We are not impressed that there is any merit to this contention for the reason that the claim of the plaintiff and his witnesses was that the hole in question was right in the traveled part of the road, that it was dug where the rigs were traveling, and after it had been dug there was a sharp elbow about the hole and that if a person drove straight down the road, he would drive right into the hole. The measurements of the defendant’s witnesses all relate to the distance that the hole was from the traveled portion of the highway. It can be thus readily seen that there was a sharp dispute as to the location of the hole. The plaintiff’s testimony, to which our attention is called in this regard, to the effect that the road was in the same condition in March and April as it was in the fall before, undoubtedly referred to his claim that the hole was still in the traveled portion of the highway, as he had before testified. We think, taking the judge’s charge upon this question as a whole, it was not prejudicial to the defendant’s claims.

Numerous other assignments of error relate to the charge. We have read it with some care and find, considering it in its entirety, that it clearly submitted the questions at issue with proper instructions.

5. In denying the motion for a new trial, the trial court said:

“In the opinion of the court, the verdict is not against the weight of the evidence and is not excessive, if the physicians’ testimony is entitled to any credit.”

. With this conclusion we are in accord, because, if the plaintiff’s witnesses are to be believed, there was abundant evidence to support the plaintiff’s claim as to how the accident occurred and also as to the extent, seriousness and permanency of his injuries.

Because of these conclusions, it follows that the judgment must be, and is, hereby affirmed.

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


source: Caselaw Access Project

author: Kuhn, J.

license: Public Domain

text:
    PEOPLE v. HAWKS.
    1. Criminal Law — Indorsement of Witness on Information at Trial.
    In a prosecution for larceny, the granting of. a motion indorsing upon the information the name of a witness on the day the trial started, 12 days’ notice of such motion having been served upon defendant, and there being no claim of surprise, or that more time was needed, and no motion made for a continuance, held, not prejudicial error.
    2. Same — Trial—Instructions—Absence of Counsel.
    Where, at the opening of the term, and before any cases were tried, the trial judge instructed the jury generally upon their duties as jurors,' and, upon the trial of defendant, the court referred to these instructions, an objection that there is no precedent for such procedure, and that a charge to the jury as to their duties, made In the absence of counsel for defendant, is prejudicial error, held, without merit, nothing specific in the general instructions being pointed out.
    3. Same — Accomplice, Letter from — Admissibility.
    While a letter from an accomplice to the judge, signifying his willingness to tell the truth about the stealing, was clearly incompetent, where witness otherwise testified to what was stated in the letter, its admission on cross-examination, held, not prejudicial error.
    4. Same — Trial—Instructions—Bequests to Charge.
    Where the court in his instructions safeguarded the constitutional rights of defendant, and clearly submitted the issues presented, with proper instructions, it was not prejudicial error to refuse specific requests.
    6. Same — Miscarriage of Justice.
    Where it is not affirmatively made to appear that the trial resulted in a miscarriage of justice, the conviction will be affirmed.
    Error to Cass; Des Voignes, J.
    Submitted April 18, 1919.
    (Docket No. 120.)
    Decided May 29, 1919.

      Lewis Hawks was convicted of larceny, and sentenced to imprisonment for not less than 2^ nor more than 5 years in the State prison at Jackson.
    Affirmed.

      Clarence M. Lyle and W. J. Barnard, for appellant.

      Carl D. Hosier, Prosecuting Attorney, and Asa K. Hayden, Assistant Prosecuting Attorney, for the people.
   Kuhn, J.

Respondent was tried and convicted of the charge of larceny of certain cattle. The case was brought here by writ of error. On the day that the trial started, before the jury was sworn, the prosecutor made a motion to indorse upon the information the name of one Raymond Stewart. It appears, furthermore, from the statement of the prosecuting attorney, which is not questioned, that notice of the intention to make this indorsement was served upon the attorney for the respondent 12 days before the motion was made. It is urged that it was error to allow the indorsement to be made under these circumstances. No claim was made by the counsel for the respondent that he was surprised or needed more time, nor was a motion made for a continuance. We are of the opinion that there was no prejudicial error in allowing the name to be indorsed upon the information under these circumstances. See People v. Bollman, 178 Mich. 159; 3 Comp. Laws 1915, § 15761.

At the opening of the term, and before any cases were tried, the trial judge instructed the jury generally upon their duties as jurors. It appears that upon the trial of the respondent the court referred to these instructions. It is urged that there is no precedent for such a procedure and that a charge to the jury as to their duties made in the absence of counsel for respondent is prejudicial error. Nothing is pointed out specifically to us in the general instructions which is claimed to be prejudicial. A careful reading of these general instructions is convincing that what the court said to the jury at the time was proper and was helpful to them in the duties which they were about to enter upon as jurors in the trial of the various cases which might be brought before them. Nothing having been brought to our attention which shows that the rights of the- respondent were in any way prejudiced, we conclude that there is no merit in this contention of respondent’s counsel.

The assignment of error which is urged most strongly relates to the introduction of a letter, known in the record as Exhibit B. While Raymond Stewart, who, it is alleged, was an accomplice of the respondent in the commission of the crime charged, and who had turned State’s evidence, was on the witness stand and was being cross-examined by counsel for the respondent, the following examination was had:

“Q. Had you any signal with Mr. Cooper as to what you should do when you would have stolen stuff to deliver to him?
“A. No, sir. I do not remember who I first told Lewis Hawks and I stole Mr. James’ cattle. I do not know who I first told I was guilty of this offense.
“Q. Now, whom did you first tell that you were guilty of this offense?
“A. I don’t know.
“Q. Haven’t you got any recollection? Is it so immaterial in your mind that you can’t tell whom you confessed the crime to?
“The Court: Witness, you may take that letter, if you want to, in response to the question (presenting letter to witness._)
“A. The 24th of November, I first told that I was guilty of stealing those cattle.
“Q. Did you do that by writing or did you do it verbally to somebody?
“A. It was written in this letter.
“Q. Who was the next one that you told?
“A. I don’t know as I have told any one since.
“Q. Have you got any objection to my looking at that letter?
“The Court: No, he may see that. That is a letter addressed to the judge by the prisoner. I had not written you — you sent that of your own accord to me, didn’t you?
“A. Yes, sir;'I did. * * *
“Th'e Court: Now, gentlemen, it appears on the record that that is a letter written to this court, and in justice to the court, you having brought it up as a matter of defense, I rule that it should be marked Exhibit B in this case.
“Mr. Barnard: Well, we object to it.
“The Court: Well, I can’t help it. You asked the witness the. question whether he had communicated with any one, and asked him how and in what manner, and the record is there. This court has a right, in view of the record that you have there, and the questions you have asked, to have the letter go in for what it may be worth. It shows that this court had no communication whatever with him.
“Mr. Barnard: We don’t claim it. I object to it on the ground it would be a self-serving declaration.
“The Court: Well, I am going to let it in. When the court receives a letter from parties that way, and you bring it in that way, the court has a right for his own self-protection .and the interests of justice, I think, to have that letter made a part of the record.
“Mr. Barnard: The record shows that the court handed this witness the letter before he was interrogated about it.
“The Court: No, you asked him, the record shows, if he had communicated with anybody, either orally or in writing; that question is there. And then I handed the witness, in justice to himself, the letter; he had a right to that if he wanted to use it. Now, you having done that, you have the benefit of it. It is only for the purpose — the court has the right, where a letter came to him in that way — the court was not seeking this witness or anything of the kind.
“Mr. Barnard: We take an exception to the introduction of it, as not being offered by the defense.
“Mr. Hayden: Well, it is going to be offered.
“The court has already admitted it.
“Mr. Barnard: We put it on the record that it is incompetent, irrelevant and immaterial and self-serving and prejudicial and preserve an exception to it.
“The Court: I permit it to go in in view of the cross-examination. There has -been a great many questions asked whether or not there had not been parties since that, or something of that kind, and the letter speaks for itself as to whether the court had ever written him or said a word to him about it. And that is why I think it should go in the record. It may go in and you may read it to the jury.”

Exhibit B read as follows:

“Jackson, Mich., 11-24, 1918.
“Mr. L. B. Des Voignes,
“Dear Sir: At the time of my arrest it was my desire to plead guilty of taking the James cattle, but if I did it would implicate'another, so I did not, but I have thought it over and would like to tell you the truth about it know if you would cair to know.
“Yours with respect,
“Raymond Stewart,
“11959 of George E. Bigge,
“Jackson, Mich.”

The letter, in itself, was clearly incompetent evidence. The criticism of the action of the court in suggesting to the witness in the midst of the cross-examination the'fact of the letter could easily,have been removed by the court by referring the letter to counsel instead of interrupting the cross-examination of the witness. The record, however, discloses that what was stated in the letter was otherwise testified to by the witness, so that we are not impressed that the action of the court in admitting the exhibit can be said to have been such error as to make it affirmatively appear that the rights of the respondent were thereby prejudiced.

We have examined the other assignments of error with reference to the admission and rejection of testimony and are of the opinion that none of them warrant a reversal of the case. Considerable complaint is made of the charge of the court and of the failure of the court to give certain requests to charge. We have examined the charge and are satisfied that the charge safeguarded the constitutional rights of the respondent and, when read in its entirety, clearly submitted the issue presented with proper instructions with reference thereto.

Not being satisfied that it was affirmatively made to appear that the trial resulted in a miscarriage of justice, we are constrained to affirm the conviction.

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


text:
    KEYZER v. PETERSON.
    1. Adverse Possession — Proof.
    Proof to sustain a claim of title by adverse possession must be clear and cogent.
    2. Same — Possession by Grantors — Presumption—Notice.
    Where grantors owned property adjoining that conveyed, their possession of a strip of land in dispute along the. boundary will be presumed to be in subordination to their own conveyance, in the absence of any change of circumstances or conditions which can be held to have given notice to the grantee or successors in title that any adverse claim to the land called for in their deed was being made..
    3. Same — Boundaries—Evidence—Sufficiency.
    Where the testimony of plaintiffs’ witnesses varied as to the different monuments upon which they relied to establish their line, there was no snch cogent and convincing proof of the occupancy of any particular strip of land as to warrant the court in saying that the title was acquired by adverse possession.

      Authorities discussing the question of essential elements in adverse possession are collated in a note in 15 L. R. A. (N. S.) 1178.

      Appeal from Kent; McDonald, J.
    Submitted May 1, 1919.
    (Docket No. 93.)
    Decided May 29, 1919.
    Bill by Peter Keyzer and another against Ed. Peterson and others to enjoin a trespass upon land. Defendants Lynch filed a cross-bill claiming title. From a decree for defendants, plaintiffs appeal.
    Affirmed.

      Dorr Kuizema, for plaintiffs.

      Bartel J. Jonkman (Willis B. Perkms, Jr., of coun- • sel), for defendants.
   Kuhn, J.

The bill of complaint prays for an in-, junction to restrain the defendants from entering upon a small strip of land on the division line between the property of the plaintiffs and of the defendants. The plaintiffs and defendants both claim title to the land in question through one Alonzo Chilson, who, prior to 1886, owned the southeast quarter of section 19, town 8 north, range 10 west, in the township of Cannon, Kent county, Michigan. He died in 1886, leaving a widow and three children. The names of the children were Ada Spauldiug, Rozella Young and Elmer Chilson, also spoken of in the briefs as Alonzo Chilson. It seems that some time after the death of Alonzo Chilson it became desirable to partition the land he had left, and in 1893 the widow and the two daughters deeded to Elmer Chilson the west 60 acres of the southeast quarter of section 19, and Elmer Chilson deeded to his two sisters the east 100 acres, reserving to the widow a life use thereof. The widow died in 1909. The plaintiffs’ grantors (the two daughters of Alonzo Chilson) were continuously in the possession of the east 100 acres until December 20, 1911, when they sold under a land contract to the present plaintiffs, and during the time' that they were in possession the land was worked by a number of persons, some of whom were tenants and some of whom were employees. The defendants and their predecessors in title have been continuously in possession of the west 60 acres since the division of 1893, and the land has passed through no less than a dozen hands before coming to the present defendants, who purchased the same on June 15, 1916. In 1916, one of the defendants, Michael Lynch, thinking that the plaintiffs were crowding in on his land, ordered a survey to be made by one of the official surveyors of Kent county. This line, being established by stakes driven by the surveyor, varied from 15 to 70 feet from the line claimed by the plaintiffs to be the true line. At the south end of the line the surveyor’s stake was 14 to 17 feet east of the' plaintiffs’ claimed line, and at a point known as the south end of the woods, which is approximately 50 rods from the north end of the line, it was 60 to 70 feet east of the plaintiffs’ claimed line, and at the north end of the line the surveyor ran the line 20 to 22 feet east of the plaintiffs’ claimed line. 'The surveyed line was run straight, while the line claimed by the plaintiffs is irregular and crooked. This bow-shaped piece of property, straight on its easterly line and encroaching in a curve on the defendants’ land, is the property in dispute. The defendants claim it by virtue of their deed and the plaintiffs claim it by adverse possession. The circuit judge, after a full hearing, refused to grant the relief prayed for.

The plaintiffs attempted to establish the line by certain landmarks, which are located by the different witnesses as marking the land which was actually occupied by the plaintiffs and their predecessors in title. The most prominent is a stone pile on the south line of the property, and which it is claimed marked thé beginning of the line at the southerly end thereof. One of the witnesses said that the line started with the stone pile on the south and ran to a rock halfway to the woods and thence to the timber. Another witness claimed that, starting with the stone pile, it ran through some berries and then to a stump and then to the woods.

In the consideration of the plaintiffs’ claim, a fundamental rule established in this State must be borne in mind, announced in the early case of Yelverton v. Steele, 40 Mich. 541, that is, that the proof to sustain a claim of title by adverse possession must be clear and cogent. See, also, Campau v. Campau, 45 Mich. 367; Marble v. Price, 54 Mich. 466; Paldi v. Paldi, 95 Mich. 410; Pendill v. Agricultural Society, 95 Mich. 491; Judson v. Duffy, 96 Mich. 255; Dummer v. Gypsum Co., 153 Mich. 622, 641; Donohue v. Vosper, 189 Mich. 78; Simons v. McCormick, 202 Mich. 485.

In Paldi v. Paldi, supra, it was said:

“Adverse possession, to give title, must be an actual, continued, visible, notorious, distinct, and hostile possession.”

We think it sufficient for the purposes of this decision to say that it is conclusive from this record that the plaintiffs’ possession has not been hostile during the statutory period. Their immediate predecessors, Ada Spaulding and Rozella Young, who in fact still own the legal title to said 100 acres, were the persons who granted to defendants’ predecessors the deed by which defendants now claim title to the land in dispute. Presumptively, at least, the plaintiffs had possession of the disputed strip, if at all, in subordination to their own conveyance. See Nugent v. Peterman, 137 Mich. 646. In the record before us we find no evidence of any change of circumstances or conditions which took place from the time of the original division of the property which can be held to have given notice to the defendants, or any of their predecessors in title, that, any adverse claim to the land called for by their deed was being made. See 2 Corpus Juris, p. 143.

Moreover, the brief is indefinite as to the exact line which plaintiffs rely upon, as the witnesses do not seem to agree upon any exact line, but their testimony varies as to the different monuments upon which they rely to establish this line. We think, therefore, there is also merit in the claim of defendants’ counsel that there is no such cogent and convincing proof of the occupancy of any particular strip of land as to warrant the court in saying that the title was acquired by adverse possession.

It follows, therefore, from these considerations that the trial judge properly denied the plaintiffs relief,. and the decree entered for the defendants will be, and is therefore, hereby affirmed, with costs to the defendants.

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


text:
      In re KLEIN’S ESTATE. APPEAL OF KLEIN.
    Executors and Administrators — Special Administrators — Comp pensation — Statutes.
    Section 14117, 3 Comp. Laws 1915, fixing the compensation of administrators, does not apply to special administrators whose compensation should be determined by the probate court, considering the services actually rendered; and the amount thereof must be left to the sound discretion of that court.
    Error to Wayne; Van Zile, J.
    Submitted April 10, 1919.
    (Docket No. 25.)
    Decided May 29, 1919.
    The Detroit Trust Company presented its final account as special administrator of the estate of Pauline Klein, deceased. The account was allowed in the probate court, and Adele L. Klein, executrix, appealed to the circuit court. Judgment for claimant. Contestant brings error.
    Reversed, and remanded.

      James H. Pound, for appellant.

      William Van Dyke, for appellee.
   Kuhn, J.

The Detroit Trust Company was appointed special administrator of the estate of Pauline Klein, deceased, and acted in such capacity for a period of approximately six months, during which time there was a contest pending with reference to the will of said Pauline Klein, deceased. During the time that it acted as such administrator, it had under its control $17,823.88 in mortgages, $2,259.84 in cash, collected $462.20 interest on mortgages, and collected rent from improved real estate amounting to $679.75. It disbursed $1,322.04, and at the time of filing its account had left a cash balance of $525.63. It asked to have allowed for its services the sum of $312.67, which was claimed as the statutory fee allowed to administrators. From this allowance the estate appealed to the circuit court, giving notice in its notice of appeal that dt objected to the allowance of the administrator’s fees. Upon the hearing in the circuit court, that court determined that the only question for determination was a question of law, and refused to impanel a jury. After a full hearing the account was allowed to stand as presented to the probate court, with the fees of the administrator as claimed.

The meritorious question which is presented by the. assignments of error, and which was argued upon the hearing of the case in this court, is whether or not a special administrator is entitled to the statutory commissions. It is claimed that the special administrator is so entitled. The only claimed authority in the statutes for such holding is found in section 14117, 3 Comp. Laws 1915, which reads as follows:

“When no compensation shall be provided by the will, or the executor shall renounce all claim thereto, he shall be allowed all necessary expenses in the care, management and settlement of the estate, and commissions upon the amount of personal estate collected and accounted for by him, and of the proceeds of real estate sold under an order of the court for the payment of debts, as follows: For thp first thousand dollars, at the rate of five per cent.; for all above that sum and not exceeding five thousand dollars, at the rate of two and one-half per cent.; and for all above five thousand dollars, at the rate of one per cent.; and the same commissions shall be allowed to administrators, or such executor or administrator shall be entitled to receive one dollar for,each day and fifty cents for each half day for the time necessarily employed by him in the care and management of the estate together with his actual and necessary disbursements therein.”

Nowhere in the statute is there any provision made for the compensation of special administrators, but it is contended that the word “administrators,” as used in the section above quoted, should be held to be comprehensive and to include special administrators as well as general administrators. Such we do not think was the intent of the legislature because it would lead to the necessary result that a special administrator, however much personal property he might get into his hands, and however short the period might be during which he held the property, would be entitled to the statutory fees as a matter of right, and the same charge would be then again made against the estate by the general administrator or executor, to whom the property would necessarily have to be turned over upon his having been appointed and qualified. It can be readily seen that this would result in a very unjust burden being placed upon the estates of deceased persons when the necessity for the appointment of a special administrator arises, and it is our opinion that the compensation provided for in the statute should not be held to apply to special administrators, whose term of office is of uncertain tenure and whose duties are simply to conserve the estate pending the appointment of a general administrator or executor. Upon proper petition being filed, the compensation of special administrators should be determined by the probate court, considering the services actually rendered, and the amount thereof must be left to the sound discretion of that court.

We, therefore, are of the opinion that both the probate court and the circuit court erred in fixing the compensation of the special administrator in accordance with the statute. This will necessitate the remanding of the case to the circuit court with direction to remand to the probate court to have the fees of the special administrator fixed and determined in accordance with this opinion. Costs will be allowed to the appellants against the Detroit Trust Company.

Bird, C. J., and Ostrander, Moore, Steere, Brooke, Fellows, and Stone, JJ., coricurred.


text:
    SAWTELLS v. EKENBERG CO.
    Master and Servant — Workmen’s Compensation Act — Independent Contractor.
    Where a woman was engaged in hauling milk from farmers, delivering the same to defendant, a manufacturer of milk products, she furnishing her. own team, harness, and wagon, paying her own bills and controlling her equipment, and receiving her pay from defendant who deducted it from the amounts due the farmers, she was an independent contractor and not an employee within the meaning of the workmen’s compensation act.
    Certiorari to Industrial Accident Board.
    Submitted April 15, 1919.
    (Docket No. 44.)
    Decided May 29, 1919.
    James Sawtells presented his claim for compensation against the Ekenberg Company for the accidental death of his wife in defendant’s employ. From an order awarding compensation, defendant and the ¿Etna Life Insurance Company, insurer, bring certiorari.
    Reversed.
    On the question as to who are employees within the meaning of workmen’s compensation acts, see note in L. R. A. 1916A, 115, 246.

      C. W. and W. S. Foster, for appellants.

      George G. Hunter, for appellee.
   Kuhn, J.

Applicant makes a claim for compensation as the dependent of Lulah Sawtells, who died on August 28, 1917, of injuries received on August 18, 1917, by being thrown beneath the wheels of the wagon which she was driving. The committee on arbitration denied compensation. The industrial accident board reversed the award of the committee of arbitration and entered an order allowing compensation. The Ekenberg Company is a manufacturer of milk products and operates plants at Ovid and Elsie in this State. On and prior to August 18, 1917, Mrs. Sawtells was engaged in hauling milk from farmers and delivering same at the Ovid plant. She furnished her own team, harness and wagon, lived at her own home three miles from Ovid, paid her own blacksmith and repair bills, and otherwise controlled her equipment. She was paid by the hundredweight according to the amount of milk actually delivered at the creamery, which at the time of the accident was fifteen cents per hundredweight. This amount was deducted from the milk checks made out to the farmers, the checks expressly stating that the deduction was made for hauling. The money for hauling was paid to her by the company, who had collected it from the farmers, and did not come out of the treasury of the company.

Counsel agree that the sole question for our consideration is whether or not she ivas at the time of the accident an employee of the Ekenberg Company within the meaning of the workmen’s compensation act, or was she an independent contractor? It appears from the testimony that these milk routes for the Ovid plant were frequently bought and sold for money. Mrs. Sawtells bought her route from Mr. Pierce for $60, ancl after her death her husband sold the route for $50. Mrs. Sawtells had no special arrangement with the company and was hauling under the same conditions as other haulers. These haulers did errands for neighbors and customers, sometimes for pay and sometimes without. So far as the company was concerned, it was immaterial in what way she moved the milk, and she could, at a profit to herself, solicit and acquire new customers in her own territory. The industrial accident board, after reviewing the case, stated:

“In the judgment of the board this is a difficult case.”

Counsel for the appellants contend that the case should be governed by the decision of this court in Gall v. Detroit Journal Co., 191 Mich. 405, which presents a case resembling in many of its aspects the facts which are now before us for consideration. In Holbrook v. Olympia Hotel Co., 200 Mich. 597, it was said:

“It is often helpful in seeking to determine whether, upon certain facts, the relation of master and servant exists, to consider whether the alleged master would be liable to third persons for misconduct of the alleged servant.”

The question of liability for the act of an alleged servant was before us in the Gall Case, supra, and the following excerpt from the opinion in that case is helpful in the consideration of the problem before us:

“Rebtoy was to deliver the papers to such persons, at such places, and on such time as the company should from day to day designate. Such delivery was the result to be obtained. And Rebtoy was to effect such delivery and obtain such result by any means and by any conveyance and in any way he saw fit. He could make the deliveries in person, or through others employed by him. It is’ shown by the evidence that those making deliveries for the company did occasionally employ others to do the work. He could use a horse, an automobile, or carry the papers on foot, provided he got them to the right persons, at the right places, and upon time. So far as the terms of the contract are concerned, Rebtoy was certainly an independent contractor and not a .servant. One whom the employer does not control, and- has no right to control, as to the method, or means, by which he produces the result contracted for, is an independent contractor” —citing numerous cases.

The test there stated that where it does not appear that the employer controls, or has a right to control, the method or means by which the result contracted for is produced, the relationship of an independent contractor is created, when applied to the facts in this case, seems to' us to clearly determine that it must be held that Mrs. Sawtells was an independent contractor. It appears conclusively that the company had nothing to do with the means or method by which she brought the milk to the plant. She was using her own equipment, and if she drove spirited horses, such conduct was beyond the control of the defendant. It was her milk route, and she received payment for the work from the farmers through the agency of the company. We think that the situation is clearly distinguishable from other cases on this subject in our reports, and attention might be called to the case of Carleton v. Machine Products Co., 199 Mich. 148, where the previous Michigan cases on this subject are carefully reviewed.

We are of the opinion that the committee on arbitration was correct in denying compensation and that the award of the industrial accident board should be, and is, therefore, hereby reversed.

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


author: Kuhn, J. BROOKE, J.

text:
    CROSBY v. THORP, HAWLEY & CO.
    Master and Servant — Workmen’s Compensation Act — ^Accidental Injury — Running to Catoh Train.
    Where plaintiff, a traveling salesman in the employ of defendant, suffered partial paralysis of the right side as the result of the breaking of a blood vessel in the brain, caused by overexertion and excitement while running to' catch a train, he was entitled to compensation under the workmen’s compensation act as for an accidental injury. Schroetke v. Jackson-Church Co., 193 Mich. 616. Ostrander, Steere, and Brooke, JJ., dissenting.
    As to what is an “accident” within the meaning of Workmen’s Compensation Act, see note in L. R. A. 1916A, pp. 29, 227.
    Certiorari to Industrial Accident Board.
    Submitted April 16, 1919.
    (Docket No. 62.)
    Decided May 29, 1919.
    Charles D. Crosby presented his claim for compensation against Thorp, Hawley & Company for injuries received in defendant’s employ. From an order awarding compensation, defendant and the General Accident, Fire & Life Assurance Corporation, insurer, bring certiorari.
    Affirmed.

      Kerr & Lacey, for appellants.

      Claude S. Carney, for appellee.
   Kuhn, J.

The claimant, on June 21, 1917-, had been in the employ of the defendant, wholesale candy merchants, for the period of 24 years. In the course of this employment, at the date aforesaid, it was necessary for him to take with him two sample, cases and a grip containing his personal effects, the total weight of the cases and the grip being shown to be about 80 pounds. On the said 21st day of June, while at Sturgis, Michigan, the claimant was delayed by a customer and as a result missed the conveyance which, it is his claim, he ordinarily used in going from the hotel to the railroad station. He thereupon hurried from the hotel toward the depot, carrying the three grips. Before he was very far from the hotel, he heard the train which he intended to take; to Howe, Indiana, claimed to have become excited, and ran the remainder of the way with his three grips. He arrived at the train before it started, but after he got on to the train it is his claim that a blackness passed over his face and his head felt bad and he felt dizzy. He left his train at Howe, Indiana, went to the hotel, and it is his claim that his hand became numb and that he could not control his right arm and felt a lack of control in his right leg, and was there attended by a physician. He returned to his home in Kalamazoo, and the next morning Dr. Rush McNair, his family physician, was called to attend him. He found that the claimant was suffering from paralysis, caused by the breaking of a blood vessel in his brain. The following is an excerpt from his testimony:

“Q. What condition did you find him in?
“A. I found Mr. Crosby suffering from nearly complete paralysis of his entire right side; he had very little power of grasp in his right hand. He could use his leg somewhat. His tongue also was affected and the side of his face; his voice was thick as if he had something in his mouth. He was also mentally depressed, he was confused and crying. He was unable at that moment to care for himself. He gave me a description of his experience on the day before and how he felt the evening before and during the night. I got enough out of him to get the history about as he has given it today.
“Q. You have heard his description of it here?
“A. Yes, sir.
“Q. What caused this paralysis?
“A. It was due to the rupture of a blood vessel in his brain.
“Q. Did you treat him from time to time?
“A. Yes, sir; from that time to the present time.
“Q. Of course, he was unable to work at that time?
“A. Absolutely.
“Q. Assuming that on the day before you saw him,, he was in ordinary good health, about his business as a traveling salesman, which ' involved traveling by train from one city to another, through Michigan and northern Indiana, and that while at Sturgis he was, because of being detained, made late for his train and missed the bus and on that account obliged to carry an unusual load of a third grip, which made it necessary for him to hold in one hand two grips, the left hand j on the way to the depot with this extra load occasioned by the third grip, he heard the train pull in about two blocks away, and he became excited and started to run for the train and, on account of the over-exertion and excitement when he got to the train, he felt dizzy and a black cloud crossed his face, as he put it, and this condition that found him in, and also he noticed immediately following that running to the train that he had lost partial control at least of the left side — that was the side that was paralyzed, was it not?
“A. The right side.
“Q. (Resuming.) The right side, the right arm, and noticed that his tongue was thick and he noticed during the day that he had lost partial control of his right leg, what would you say, assuming the conditions he has testified to be true, and the history of the case, what would be your judgment as to what caused this accident?
“A. There would be two factors in the case, first would be the unusual physical exertion.
“Q. This extra load he was carrying?
“A. The extra load and running for the train, secondly, and perhaps more important would be the excitement of running to catch the train. The mental perturbation that occurs when one is afraid they are going to miss a train, and run to catch it.
“Q. How would these matters cause a breaking of a blood vessel?
“A. For the simple reason that under mental exertion, the blood pressure rises in the blood vessels, and the heart has to pump harder to pump the blood into the muscles that are taut and contracted, consequently under excitement the blood pressure will also raise, so in this case there would be two factors, two active factors to cause the rise of blood pressure, and if there was a weak place anywhere in the circulatory system, that was unable to stand the strain, it would give away, and that is what happened in this case.
“Q. As I understand you then, the extra load, the unusual running to catch the train and the excitement combined, those three things caused the extra load on the blood vessels.
“A. Absolutely,
“Q. And caused this blood vessel to break?
“A. Yes, sir.
“Q. And that, in turn, caused the paralysis?
A. Yes, sir.”

Whether or not, under these circumstances, the claimant can be said to have met with an accident is the sole question presented upon this record. The industrial accident board found that the facts here presented make out a stronger case than the facts in-, volved in Schroetke v. Jackson-Church Co., 193 Mich. 616 (L. R. A. 1917D, 64), and relied upon that decision in awarding the claimant compensation. In my opinion, the conclusion of the industrial accident board with reference thereto was fully warranted, and I am unable to distinguish the situation here presented from the finding in the Schroetke Case, which case has not been overruled by this court, but, in fact, has been cited in the following decisions: Van Gorder v. Packard Motorcar Co., 195 Mich. 588 (L. R. A. 1917E, 522) ; Stombaugh v. Peerless Wire Fence Co., 198 Mich. 445; Johnson v. Mary Charlotte Mining Co., 199 Mich. 218; Roach v. Kelsey Wheel Co., 200 Mich. 299; Tackles v. Bryant & Detwiler Co., 200 Mich. 350; Guthrie v. Detroit Shipbuilding Co., 200 Mich. 355.

The finding of the industrial accident board should be affirmed and compensation awarded in accordance therewith.

Bird, C. J., and Moore, Fellows, and Stone, JJ., concurred with Kuhn, J.

BROOKE, J.

(dissenting). I am of opinion that the record contains no evidence of an accident.

, Ostrander and Steere, JJ., concurred with Brooke, J.


author: Ostrander, J.

text:
    YOUNG v. YOUNG.
    Divorce — Maintenance of Children — Modification of Decree.
    Where a husband worth from $100,000 to $150,000 was granted a divorce from his wife, and the custody of the four children awarded to her, with an allowance of $7.50 a week for the maintenance of each child, the decree will be modified; on appeal, fixing the amount, at $10 a week for each child, since she relieves him of something besides mere maintenance.
    Appeal from Berrien; White, J.
    Submitted April 30, 1919.
    (Docket No. 103.)
    Decided May 29, 1919.
    Bill by Dorothy C. Young against Charles L. Young for a divorce. Defendant filed a cross-bill asking for a divorce. From a decree for defendant, plaintiff appeals.
    Modified, and affirmed.

      Thomas J. Cavanaugh (Cady & Andrews, of counsel), for plaintiff.

      Gore & Harvey, for defendant.
   Ostrander, J.

The parties to this suit were married September 2, 1902, when plaintiff was 25 years old and defendant some 12 years her senior. They lived and cohabited as husband and wife until October, 1916, and four children, two boys and two girls, the fruit of the marriage, are living. The oldest child is now about 15 years of age, the youngest 10 years old. They lived in more than comfort, the defendant being manager and largely owner of a considerable department store in Benton Harbor and owning considerable other property. April 3, 1917, plaintiff filed her bill for a divorce, and May 15, 1917, her amended bill. She charged, and charges, defendant with extreme and repeated acts of cruelty, with being cold and without affection for her, unable to appreciate love and affection, with fault-finding, with refusing her a trained nurse at the time of her first confinement, with refusing to provide domestic help during various periods. She charges that upon an occasion in January, 1915, when she had gone to Chicago to meet her brother, he telephoned and wrote to her to remain there and not again to come home, that she immediately returned, was received with abuse and a charge that she had gone to Chicago with a certain physician and with being intimate with said physician, accused of being insane and “a snake,” and called obscene, profane and opprobrious names. Defendant, she charges, told various people that she was consorting with the said physician, and because of his insane and jealous disposition had her watched by an employee who, with defendant, spread scandalous reports and rumors about her. The 15th paragraph of the bill is here set out:

"15th. The plaintiff further says that now for a period of nearly six months as aforesaid she has been living in the same house with the defendant, but not as husband and wife, and that during the past ten weeks she has had a most miserable existence and life is almost unbearable because of the many wanton, cruel and inhuman acts of the defendant toward her as aforesaid.”

Setting up that defendant is reported to be worth from $100,000 to $150,000, she alleges fear that he will, as he has threatened to do, dispose of his property so as to prevent her from obtaining alimony therefrom. She prays for a divorce, alimony and custody of the children, and-incidentally for an order restraining him from disposing of his personal and real property.

Defendant answered the bill and filed a cross-bill. This in May, 1917. It appears that in July, 1917, an order was made authorizing defendant’s withdrawal of his answer and cross-bill, and on the same day another answer and cross-bill was filed.

A final decree was made July 21, 1917, in which it is recited that it appears to the court that the material facts charged in defendant’s cross-bill are true and that plaintiff has been guilty of the several acts of cruelty and neglect therein charged. By this decree the marriage is dissolved, custody of the three younger children given to defendant, custody of the oldest boy given to the mother. A provision appears for the support of the oldest boy. The decree concludes :

“The property rights of the parties having heretofore been fully settled and adjusted between them, in consideration of such settlement and fifty ($50) dollars paid by the defendant to the plaintiff, the receipt whereof is hereby acknowledged, it is ordered, adjudged and decreed that such payment and settlement hereby^ is decreed and declared to be in lieu of any dower interest or any statutory interest that the plaintiff now has in any property, real, personal or mixed, of the said defendant, or in any property that said defendant may hereafter acquire.
“The defendant shall pay to plaintiff’s attorneys the sum of three hundred ($300) dollars.”

This decree was made by Judge Bridgman. In November, 1917, a petition was filed by plaintiff to set aside and modify the decree. In December it was set aside. January 25, 1918, defendant filed his answér and cross-bill. Plaintiff answered the cross-bill February 28, 1918.” We are not advised in what particulars the answer and cross-bill of defendant last filed differs from the previous, pleadings. In the record now before us, defendant’s answer denies the causes for divorce charged in the bill, and his cross-bill sets up various grounds for divorce because of the misconduct of plaintiff, he expressly charging therein that plaintiff had become infatuated with one Dr. C. M. Ryno, of Benton Harbor, causing by her conduct public scandal, and specifically charging that on April 29, 1917, she and said Ryno occupied the same room at a hotel in Michigan City, Indiana, being registered there as “Mr. and Mrs. Emmet Crowe, Kazoo,” remaining in said room until the morning of April 80th. Generally, he charges that upon other occasions plaintiff and the doctor had illicit relations. Be prays for a divorce and for the custody of his children. The cross-bill was answered, and in her answer plaintiff denies the charges made against her in the cross-bill. The pleadings register the lack of affection these parties now have for each other and a hopeless domestic situation. They register, also, as some of the testimony does also, a sexual mismating and an incompatibility which it is deplorable they did not discover before marriage.

The cause came on for hearing in open court before Judge White in the Berrien circuit court. The settled case contains the substance of all evidence adduced at the hearing. The decree, entered August 12, 1918, divorces the parties, gives the children into the custody of plaintiff until each is 16 years of age, makes provision for their support by the defendant, but contains the finding that the charges in the bill are not true and the material facts charged in the cross-bill of defendant are true and that plaintiff has been guilty of the several acts of neglect, adultery and gross misconduct charged in the cross-bill.

It will profit no one to set out and analyze the testimony. The record has been read and considered with care and perhaps with some desire to find reason for exonerating this wife and mother, now past middle age, from the charges made against her. It ought to be stated that the testimony makes her out a good mother, so far as personal intercourse with' and care of her children are concerned. Their affection for her is undoubted. But we are compelled to say that the weight of evidence sustains the conclusions qf the court below which we feel constrained to approve, save only in respect to the sum to be paid by defendant for the maintenance of the children. The decree provides that he shall pay the plaintiff seven and a half dollars a week for each child, which is equal to about fifteen hundred dollars a year. This for “the support, maintenance and education” of the children. This sum may be sufficient to maintain them in a proper manner, but, while plaintiff professes herself to be willing and anxious to have her children, she nevertheless, under the decree, relieves defendant of something besides mere maintenance. We are impressed that the defendant should pay a greater sum, and, affirming the decree in every other respect, we modify, it only by fixing the amount to be paid by defendant as ten dollars a week for each child, instead of seven dollars and a half.

No costs of this appeal are awarded to either party.

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


author: Osteandee, J.

text:
    ANDERSON v. MANISTIQUE & LAKE SUPERIOR RAILWAY CO.
    Railroads — Negligence—Personal Injuries — Lookout—Issues— Trial — Instructions.
    In an action for personal injuries to a two-year-old boy who was injured when an engine was coupled onto a box car under which he was playing, failure of the trial judge to instruct the jury as to the measure of duty of defendant under the circumstances, and to submit to them any question of disputed fact, held, reversible error.
    Error to Schoolcraft; Collingwood, J., presiding.
    Submitted April 10, 1919.
    (Docket No. 29.)
    Decided May 29, 1919.
    Case by Leo Anderson, an infant, by his next friend, against the Manistique & Lake Superior Railway Company for personal injuries. Judgment for plaintiff. Defendant brings error.
    Reversed.

      C. W. Dunton, for appellant.

      McDonald & Kaltz, for appellee.
    A switch track of defendant bisects a square in Manistique, running through it north and south, the block, north and south, being, approximately, 575 feet, and bounded on the north by Beaver street, on the south by Otter street, on the east by Chippewa and on the west by Schoolcraft avenues. The houses face upon the avenues, and it is approximately 125 feet from the rear of the houses to the track. The right of way is not fenced. There are eight houses fronting Chippewa and eight Schoolcraft avenues. Going south from Beaver street, on Chippewa avenue, the houses are, in order, Desautel’s, Gardiner’s, Bowman’s, Anderson’s, Ranney’s. On August 27, 1917, there were four cars standing on the track irL this Square and a locomotive ran down from the north to take them out. It was in charge of the switching crew of five men, the conductor and two switchmen, the engineer and a fireman. The plaintiff, an infant, a little more than two years old, was under one of the standing cars, the second one from the north. When the coupling was made, the standing cars were moved, and a wheel or wheels ran over the plaintiff’s hand.

      On duty of railroad company to keep lookout for trespassers on track, see notes in 25 L. R. A. 289; 8 L. R. A. (N. S.) 1069; 41 L. R. A. (N. S.) 264.

      It does not seem to be claimed that however they may have been placed on the locomotive, or, if it was pushing a car, and there was a lookout on the car, defendant’s servants could have seen the child. There are a considerable number of children living in the square above described, and they sometimes crossed ■over the right of way. Defendant’s servants had upon various occasions warned school children found on or near the right of way.
    In the declaration it is alleged:
    “That the negligence of said defendant, its agents, servants and employees, consisted in pushing cars ahead of an engine on said spur or sidetrack in a populous part of Manistique, without a brakeman or other employee on the forward car and without a watchman or lookout of any kind at the head of the train as such cars were being driven over and across street crossings and through a thickly-settled portion of the city of Manistique, in said county; and in failing to ring the bell or blow the whistle or give any warning that said engine and cars were so moving on said track were to cross said streets and come into collision with the box cars or flat cars standing thereon, under which plaintiff lawfully was; and in failing to properly and safely protect and guard said sidetrack and railway right-of-way by fencing or otherwise so as to prevent children of immature age from going thereon; and in failing to inspect said standing cars before moving the same, to avoid injury to minor children attracted thereby; and in carelessly, heedlessly, negligently, recklessly,, wantonly and wilfully running said engine and cars into the standing flat cars or box cars under which plaintiff lawfully was when notified of the danger to the plaintiff; and in carelessly, negligently, heedlessly, wilfully, wantonly and recklessly neglecting and refusing to bring said moving cars and engine to a stop before coming into collision with the standing flat cars or box cars under and beneath which plaintiff lawfully was when notified of the danger to plaintiff; and in carelessly, negligently, heedlessly, wantonly and wilfully neglecting and refusing to stop said engine and cars before collision with the flat cars or box cars standing on said railway under and beneath which plaintiff lawfully was when notified that there was danger in moving said engine and cars; and in carelessly, negligently, heedlessly, wantonly, wilfully and recklessly failing to stop and inquire the reason for the alarm raised by persons and individuals along said railway right-of-way hastening toward the said moving engine and cars under such circumstances and conditions which ought to apprise said defendant, its agents, servants and employees that there was immediate and pressing necessity for bringing said engine and cars to a stop; and in carelessly, heedlessly and negligently refusing to bring said moving engine and cars to a stop before coming into collision with the standing cars on said sidetrack when notified so to do, and in moving said engine and cars in violation of the rules of said defendant.”
    Any claim of negligence for not fencing the right of way was withdrawn.
    A special question submitted to the jury by defendant, answered by them in the affirmative, was:
    “Was a car attached ahead of the engine as the engine moved south on the track to couple on to the standing flat cars, under one of which the plaintiff was injured?”
    Otherwise, the testimony for plaintiff tended to prove that the engine bell was not rung nor the whistle blown as the approach to the standing cars was made, that the standing car farthest north was about west .from the Anderson home, and that the head of the locomotive, when the coupling was made and the train was at rest, was in the rear of the Anderson lot, near the northwest corner thereof, that the train men could have seen the rear of all the houses on the east side of the square, that Mrs. Josephine Ranney, who lived next south of the Andersons, saw the plaintiff under a standing car nearly directly back of her porch and after she saw him there saw the engine coming south on the track just across Beaver street, that she ran to the north and towards the track, waved her hand or hands and cried out to the train crew that there was a baby on the track, that she could see some of the train crew and observed that once the conductor turned and looked towards her, that she ran to near the north line of the Anderson lot, that the locomotive was pushing a gondola car and there was no one observed by her on that car, that before the standing cars were reached by the locomotive the conductor left the engine and spoke with her, asking her what was the matter and she told him that “Anderson’s baby was under the car,” that no signal that she saw was given to stop the engine and that it did not stop until the coupling was made. As Mrs. Ranney was, perhaps, the principal witness for plaintiff, some of her cross-examination is set out here:
    “The little child that I saw under the standing car was about west of where I stood on the porch. I think it would be due west of me. The child was behind the north truck of this car; he was standing up south of the north wheel.- He had hold of those rods under the car. He was pretty close up to the wheel. I think that he was within a few feet of the north truck. I saw the engine coming; it was pushing a car as it came in there. The engine was running forward. The engine stopped about midway with the Anderson lot — directly west of the Anderson lot. It would be the center of the lot and about west of the Anderson house.. The front part of the engine would be about west of the Anderson house. When I run out there, I do not know whether the train crew saw "me or not.

      “Q. The engine had come to a stop before the train crew saw you?

      “A. No, sir.

      “Q. When did any member of the train crew see you that you first know about?

      “A. When Mr. Musgrove stepped off the engine.

      “Q. Where were you at that time?

      “‘A. Right close to the right-of-way and the railroad.

      “Q. That is the first knowledge you had that any of the train crew had seen you?

      “A. Yes, sir.

      “Q. And you think now that is where it was when they first saw you?

      “A. I don’t know; as far as I know, it was the first place. So far as I know, that is where it was when they first saw me. When Mr. Musgrove stepped off, he asked me what was the matter. I told him.

      “Q. As soon as that happened, he flashed a signal?

      “A. I didn’t see him.

      “Q. The engine came to a stop?.

      “A. No, sir.

      “Q. How far did the engine move?

      “A. I don’t know.

      “Q. A foot — Well, you wouldn’t say that the engine moved any distance of any consequence after that?

      “A.- It was moving all the time; it didn’t stop. I would not say that it moved any distance. I would not say that it moved 20 feet or 10 feet; I would ■not say it moved 5 feet. All the time that engine was moving in there, it was coming very slow. I do not know whether it would be as fast as a man would walk. The engineer and fireman were in the cab, and I think there was 3 men on the running board.

      “Q. There is the footboard — which board was it, the one in front or the one behind that they were on?

      “A. The one at the back. During this time, I suppose I was excited seeing that little child there. It frightened me, of course, and I was certainly frightened when I saw the situation. I became dazed. Just as I saw the little boy fall down after they made the connection, is the last that I remember. And when I came to, I found myself over to the first house north of the Anderson house. I have no distinct recollection as to how I got there. I am telling you what I saw there, as near as I can, from the frightened condition in which I was at that time. I knew what I was doing all that time. My recollection is clear, anyway. When it was all over, my nerves gave away, and I was excited after that. When I first saw the engine, coming in there and knew the little child was under the car, I told my little girl to go to the track and get the baby. The first thing' I did after observing the position, was to tell my little girl to go to the track.and get the baby. The little girl started — she got about due south of the Anderson privy. I then passed her arid told her to go back and tell Mrs. Anderson. I presume I went within 2 or 3 feet of her and called out to her to run for Mrs. Anderson. As far as I know she did so. I went out across about midway of the Anderson lot. As I .went out there, the center of the Anderson lot towards the track, it would be about the center of the lot between the north and south. I passed over the line between our lot and the Anderson lot right back from the Anderson outhouse. I went back towards the track in about the middle of trie Anderson lot, and came out near the right of way at that place, and that is where I had the talk with Mr. Musgrove, right close to the right of way.

      “Q. You didn’t hear any whistle, or didn’t hear any bell rung?

      “A. No, sir.

      “Q. Trains frequently pass there on that track?

      “A. Yes, sir.

      “Q. Fifteen or twenty times a day?

      “A. I don’t know exactly.

      “Q. You could see them — you don’t pay very much attention to the switch engine?

      “A. No, sir.

      “Q. Nothing about the blowing of the whistle, or the ringing of the bell that would impress you, hearing it so frequently?

      “A. Well, that day I would have heard it if it blew, because I was right there.

      “Q. But you say that you didn’t pay very much attention to the blowing of the whistle or ringing of the bell?

      “A. If I am not out there watching, I didn’t pay much attention, but that day if it would blow, I would hear it.

      “Q. Do you recollect where the engine was when you first saw it?

      “A. Yes, sir.

      “Q. Where do you say that it was?

      “A. I said it was just across Beaver street and coming toward the Anderson lot.

      “Q. You are acquainted with directions there, are you not, east and west and north and south?

      “A. I suppose so.

      “Q. Are you sure, Mrs. Ranney, that that engine was pushing a car in front of it?

      “A. Certainly.

      “Q. Are you absolutely certain about that?

      “A. If I wasn’t, I wouldn’t say so.

      “Q. Are you as certain about that as you are about all the rest of your testimony?

      “A. Yes, sir.

      “Q. Did you hear the coupling made between the train that was moving in there and the standing car?

      “A. No, sir.

      “Q. Do you remember the moving train coming in contact with the car standing on the track?

      “A. Yes, sir.

      “Q. Do you know whether it was a severe blow or a light blow as they came together?

      “‘A. It was a light blow.

      “Q. The engine was moving very, slowly, was it not?

      “A. Yes, sir.” .
    On redirect-examination she testified:

      “Q- State whether or not, from the time you left the rear of your house and as you first saw the engine and car and started to holler, as to whether they were in plain view during all the time that you were going to the point where you finally stopped?

      “A. The car ahead of the engine was.

      “Q. Could you see them plainly?

      “A. .1 saw them moving forward.

      “Q. And as you got over there, out from your house, and crossing the Anderson lot, could you see the engine and car plainly?

      “A. Yes, sir.

      “Q. All the time until you got to the point where, they finally stopped?

      “A. Yes, sir.

      “Q. On your direct examination, you said something' about one of the men on this engine turning his head, what was there about that?

      “A. I said he turned his head over his shoulder, and he looked back towards me.

      “Q. What were you doing then?

      “A. I was standing then.

      “Q. Were you crying out?

      “A. Of course.

      “Q. And waving your hand at that time?

      “A. Yes, sir.

      “Q. About where was the engine and car then?

      “A. The engine was just about — it was just across the line from Desautel’s place onto Mr. Anderson’s.

      “Q. Well, Mr. Desautel’s place is near Beaver street?

      “A. Yes, sir.

      “Q. Do you know the house next to his?

      “A. Mr., Gardiner’s.

      “Q. Then comes Mr. Brown’s?

      “A. Mr. Bowman’s.

      “Q. And then Anderson’s?

      “A. Then Anderson’s.

      “Q. SoThat when this man looked over his shoulder towards you—

      “A. Gardiner’s lot, next to Desautel’s.

      “Q. It was about opposite Gardiner’s lot, is that what you mean?

      “A. Yes, sir.

      “Q. You spoke of the conductor getting off the engine and talking to you?

      “A. Yes, sir.

      “Q. Where was the engine when he got off?

      “A. Right close there when he looked over his shoulder and saw me.

      “Q. Did he come towards where you were?

      “A. He stepped off and ran towards me.”
    In some respects, the testimony of this witness was corroborated by another. A witness for plaintiff, Desautel, who was in or near his own house and also saw the child under the car, testified:

      “My attention was first called by the scream of this woman; I instantly looked over and saw this child, and at the same time I saw the car moving. The impact of this engine must have moved that car. I say there was one car ahead of the engine.

      “Q. Do you still say, that when .you heard this woman scream that the engine was back 175 feet from those cars?

      “A. Yes, sir.

      “Q. Explain to the jury how that could be.

      “A. Well, when that woman was hollering, I noticed the train. I should judge, about that time about 175 feet, and she was hollering to those trainmen and- all this time the train was going ahead, and was'crawling closer to those cars.

      “Q. You have told this jury that when you first heard her call out, you ran towards that car, you saw the child under the car, and you instantly saw the car move?

      “A. Yes, sir.

      “Q. And is that right?
    “A.-Yes, sir.”
    It is assigned as error that the court refused defendant’s second, seventh, ninth and tenth requests to charge, did not more specifically point out in the general charge the degree of care required of the switching crew, and did not restrict the alleged negligence of defendant to,certain alleged acts which contributed to the injury. The requests 'to charge referred to are:
    “2. You are instructed that the plaintiff has failed to show any actionable negligence on the part of the defendant, and you will render your verdict of no cause of action.
    “7. There is no testimony in the case that the switching crew or any member of the switching crew understood or comprehended the shouts, cries and motions which the witness, Mrs. Ranney, testifies she gave them until it was too late to stop the engine and avert the injury to the-child; therefore, you can render no verdict against the defendant for its alleged negligence in this respect.

      “9. It was the duty of the defendant and its crew at the time it moved its engine upon the track.to make a coupling with the standing cars in question, to be watchful and attentive and guard with reasonable care against possible accidents of all kinds, without special reference to any particular persons or things, to observe environments, watch where they were going and maintain such a lookout at all times as is reasonably required by the circumstances.
    “If you are satisfied from the evidence, that such reasonable care was exercised by the defendant’s train crew at the time in question, then you are instructed that it becomes your duty to return a verdict ‘no cause of action’ or ‘not guilty.’
    “10. Jfi&ch of the allegations of negligence claimed by the plaintiff to have been committed by the defendant stands by itself. Each must be passed upon separately. Upon each of said allegations of negligence, the burden of proof is upon the plaintiff, and you can find the defendant guilty of no one of the negligent acts claimed unless the testimony upon that point satisfies you by a preponderance of the evidence that the alleged act was committed.”
    Error is assigned upon those portions of the charge which, with the context, read:
    “Preponderance of the evidence does not mean number of witnesses. It means that evidence which convinces you by its reasonableness of its truth, and, in order to find defendant guilty of negligence, you must find that, as the engine came down the track to couple with the standing cars, the employees of the defendant did not exercise such reasonable care and diligence and prudence as an ordinarily prudent man should exercise.
    “It is conceded that there were five men on that engine, one, the engineer, and one, the fireman, in their proper and appropriate places. It is conceded that there' were three other men somewhere on the engine. Now, it becomes your duty to determine whether these men, all of them, or any of them, because you don’t have to find that all of them did exercise that care, but if any of them exercised the care which should have been exercised in a case of this kind, then defendant is not negligent. It is not my province to comment upon the testimony. I will merely say that if Mrs. Ranney signaled to'these men in time so that, if they had been observing her, if they had been looking out for danger of any kind, they could have seen her and could have stopped the train, then they would have been negligent. But you have to take into consideration in these matters the time when Mrs. Ranney signaled to them.”
    Particular emphasis is laid upon so much of the instruction quoted as begins with, the words, “It is not my province.”
    The court advised the jury there was no testimony showing that any of the switching crew saw the child under the car before he was injured, and that it was not the duty of the defendant to inspect the standing cars before moving its engine on the track and making the coupling. They were advised, also, that in order to sustain the theory of the plaintiff they must find that the servants of defendant were negligent “in the manner of attaching the engine to those standing cars.” They were further advised that it was immaterial whether the bell was rung as the engine moved in to make the coupling or whether the whistle was sounded before reaching Beaver street., The court did not otherwise than is here stated eliminate, or withdraw from the attention of the jury, the negligence of defendant alleged in the declaration and to which testimony had been directed. In stating the theory of the parties, it was said:
    “And it is the theory of the plaintiff that, while the defendant was connecting those flat cars with an engine, they were so negligent in their conduct of that engine that they failed, because of that negligence, to know that a child was under one of the cars, and the, child was injured thereby.”
    The theory of defendant was stated in these words:
    “It is the theory of the defendant railroad company that they came down across Beaver street, ringing the bell and giving the usual signals, that the men in charge of the engine were careful and prudent men, trained railroad men, and that they exercised due diligence and care.”
    'Exceptions were taken also to the rulings which permitted plaintiff, after defendant had rested, to call two witnesses, not before sworn, to prove, among other things, that there was a car in front of the engine— being pushed by it. The objection was that it was not proper rebuttal. Upon these exceptions, error is assigned.
   Osteandee, J.

(after stating the facts). It is said in the brief for plaintiff — appellee—that—

“In view of the testimony and the law applicable, the case, when finally submitted to the jury, presented a clearcut issue of fact which may be stated as follows:
“Was the crew of the engine negligent while proceeding from the Beaver street crossing to the standing cars, in failing to heed or observe the warnings of danger given to stop the engine before hitting the standing cars, which resulted in the injury to plaintiff?
“On this issue of fact the jury found the defendant negligent. The court properly charged them on the law, calling attention to the main and decisive issue in language not at all unfavorable to defendant.”

It is also said:

“The material issues in the case and to which the testimony was directed, were the operation of the engine, and the care, or lack of care, of its crew, from the Beaver street crossing up to the time of the coupling to the standing cars. The negligence claimed was the absence of a lookout on the gondola car, the failure to observe and heed the warning cries and gestures of Mrs. Ranney, and to bring the engine to a stop before attaching it to the standing cars, and which caused an injury to plaintiff, there being ample time to do so and avoid the accident, if the defendant was not negligent and careless in respect to the operation of its engine under the circumstances.”

An examination and analysis of the pleadings and of all the testimony makes it apparent that when the taking of testimony was concluded plaintiff’s case rested upon the proposition that actionable negligence was made out because some of the switching crew did not sooner observe and understand the actions and calls, or exclamations, of the witness Ranney, assuming that the jury believed her testimony to be true, and stop the movement of the engine' before it reached the standing cars. The court might very properly have eliminated and removed from the consideration of the jury every other charge of negligence, because it does not appear that any other alleged negligent act contributed to the injury of plaintiff.

Regarding the testimony most favorable to the plaintiff, it appears that the theater of action was small, and possible action was measured by seconds of time. Called upon to determine so narrow an issue, the jury was told that—

“If Mrs. Ranney signaled to these men in time so that, if they had been observing her, if they .had been looking out for danger of any kind, they could have seen her and could have stopped the train, then they would have been negligent.”

This i$ the only application which was made by the court of the law.to the facts, the only specification of what would be negligent conduct on the part of defendant's servants. See, generally, Linstrand v. Lumber Co., 65 Mich. 254; Schindler v. Railway Co., 77 Mich. 136; Anderson v. Boom Co., 57 Mich. 216; Heller v. Railway Co., 109 Mich. 53 (63 Am. St. Rep. 541); Huggett v. Erb, 182 Mich. 524 (Ann. Cas. 1916B, 352).

This instruction does not state the measure of the duty of defendant in the circumstances. It does not leave to the jury any question of disputed fact. That Mrs. Ranney could have been seen and in time to have stopped the engine is not a disputed fact. Whether she stood upon the porch of her house or ran towards the engine, she was within the range of the vision of defendant’s servants. If the jury believed her, she signaled, — cried out, waved her hands, advanced towards the engine and its crew, — at a time when, if she was observed and understood, the engine could have been stopped. Obviously, the duty of the switching crew was to observe the cars they were approaching, and any knowledge they may have possessed that children were sometimes on the right of way would naturally cause observation to be directed towards the standing cars.

Beyond this, we think the measure of their duty, stated abstractly, was to heed notices and warnings of danger and peril observed and understood by them, and, reference being had to the work they were doing, they should have observed in this connection those things, which the ordinarily prudent person about the same work would have observed. Manifestly, in order to fix defendant’s liability, the duty must have arisen and have been disregarded at a time when, by prudent conduct, injury could have been avoided. Applied to the circumstances disclosed in this case, the rule does not-require that defendant’s servants search, with their eyes, the porches of the houses in view for signals of danger, nor that they should apprehend peril, because some one was, or appeared to be, waving to them. If Mrs. Ranney’s. actions were observed and their meaning understood; the engine should have been stopped as soqn as it was reasonably possible to stop it. If Mrs. Ranney’s. actions were so plainly in view, her person so near to the right of way, her purpose so evident, that a member of the switching crew, exercising ordinary care in performing his duty, would have observed and understood her, the engine should have been stopped.

The case is so close a one upon the. facts, — there being so much convincing testimony supporting the conclusion that defendant’s servants were guilty of no negligence — that the charge of the court complained about may be supposed to have largely influenced the jury in arriving at a verdict. And as the instruction cannot, for reasons stated, be approved, the judgment must be set aside and a new trial granted. The court might well have given defendant’s ninth preferred instruction, or its equivalent. It was not error to refuse the other preferred requests above set out.

We do not consider other assigned errors, it appearing that they raise questions, none of which need arise, or are likely to arise, upon a new trial. With costs to appellant.

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