author: BROOKE, J. Bird, J.

text:
    VAN AUKEN v. MICHIGAN CENTRAL RAILROAD CO.
    1. Carriers — Passengers—Railroads—Licensee.
    Where an employee of a lumber company rode to and from his work on a logging train of the defendant railroad company, without charge for transportation, and it appeared that the defendant carried few passengers over this por-- • tion of its road, which was a logging branch, and that those who did ride were required to sign a release of liability, with a provision that the passenger assumed all risks, also that the defendant had filed and published its schedules of rates pursuant to Act No. 300, Pub. Acts 1909 (3 How. Stat. [2d Ed.] § 6524 et seq.), and in accordance with the provisions of section 5 of the statute was prohibited from carrying passengers free, excepting certain classes of persons (which did not include decedent), he was a mere licensee, and whether he innocently or wilfully violated the law, he was entitled to no greater rights than one who procured the pass by consenting to assume'all risks of transportation.*

    2. 1/xAsxer and Servant — Fellow-Servants—Death.
    A member of a loading crew who was killed because a carload of timber was insufficiently or improperly wired by other members of the gang, was not entitled to recover for the neglect of his coemployees, in the absence of testimony to prove that the car was not properly inspected, or that due inspection would have disclosed a defect in the wiring or loading.
    3. Railroads — Logging Road.
    A railroad corporation has the right to impose such restrictions upon liability to passengers riding on a branch line on its logging trains as it may see fit; general rules in use for the operation and maintenance of trains on the main line being impracticable.

      4. Same — Agency.
    A conductor has no authority to bind his employer by permitting or inviting the servant of another corporation to ride upon its train free of charge in contravention of the established rates and schedules.

    Kuhn, Ostrander, and Bird, JJ., dissenting.
    Error to Otsego; Sharpe, J,
    Submitted November 21, 1913.
    (Docket No. 69.)
    Decided October 2, 1914.
    Rehearing denied January 29, 1915.
    Case by Abram A. Van Auken, administrator of the estate of Anson Maurer, deceased, against the Michigan Central Railroad Company for the unlawful killing of decedent. Judgment for plaintiff. Defendant brings error.
    Reversed.

      Watts S. Humphrey and George L. Alexander {Humphrey, Grant & Humphrey, of counsel), for appellant.

      Hall, De Foe & Hall, for appellee.
    In July, 1910, defendant maintained in connection with its Mackinaw Division what is called in the record its “Haakwood Branch.” This was a logging branch about 22 miles long, connecting with the main line at Wolverine. The Wylie-Buell Lumber Company were conducting a lumbering operation upon this branch. At this time (July, 1910) they were getting out sawlogs and timber for use in piling, the latter 30 feet long and 8 or 10 inches in diameter at the top and 14 to 16 inches in diameter at the butt. To facilitate the loading of these logs, the lumber company used a steam loader. This loader was mounted upon a flat car which, together with a boarding car used by the loading crew, was moved from place to place by defendant as occasion required.

      It seems to have been customary for the loading crew or some part of it to go in to Wolverine each Saturday night and there spend Sunday. Sometimes the boarding car would be run back and forth, at others the loaders would ride in the ordinary caboose attach-' ed to the train. No fare was demanded or collected from the loaders in either event. On Saturday, July 29th, a train of 10 cars had been loaded with logs— the last 3 cars being loaded with the 30-foot piling above described. This piling was loaded upon flat cars, upon the sides of which were placed stakes reaching about one foot above the level of the car floor. The logs were piled in the form of a pyramid, and were secured by No. 9 wires, passed through the pockets at the side and over the logs near each end. The wires were tightened by twisting them with an inch bar, at a point near the top of the load. Behind the cars thus loaded was placed the caboose.
    Maurer, plaintiff’s decedent, was a member of the loading gang employed by the lumber company. He was the operator of the steam loader. On the night in question, as the train was about to start to Wolverine, he boarded the caboose and took a position in the cupola of that car. After the train had gone about 10 miles, and when it was running at about 10 or 12 miles per hour, the forward end of one of the logs upon the car immediately in front of the caboose settled down between the two upon which it rested. This resulted in crowding the log nearest the side of the car outward and into a position where it, for a short time, hung in the wire. The wire soon broke, and the front end of the log dropped to the ground; the rear end still being held in place by the wire upon that end. As soon as the end of the log struck the ground, it caught and, as the train moved forward, the other end was driven through the end of the caboose instantly killing Maurer.
    The loading was done by -an experienced crew of loaders, employed by the lumber company. They testified that it was done in the ordinary manner, and as safely as possible, according to their experience. After the loading was completed the cars were in- ' spected by the conductor of the train, who determined that they were properly and safely loaded, and’ accepted them and caused them to be placed in the train. The train crew, including the conductor, were men of large experience in the handling of forest products. The car in question was loaded in pyramid form, and wired in accordance with the rules and practice of the defendant company, which has handled about 100,000,000 feet of timber per annum during the past 15 years.
    It appears that, the Haakwood logging branch was. built in 1905 under a contract with the Wylie-Buell Lumber Company which in part provided:
    “That it [the lumber company] will load and unload all cars; will not load the same beyond their marked capacity; and will comply with the rules of said railroad company as to the manner in which .cars shall be loaded and the loads secured thereon.
    * * * * * *
    “It is agreed that if any of the covenants on the part of the railroad company herein contained shall, at any time, be adjudged by the interstate commerce commission, or by the commissioner of railroads of the State of Michigan, or by any court of competent jurisdiction, to be in violation of the law, said railroad company shall not be required to perform said covenant or covenants, but this agreement shall nevertheless in all other respects continue ip. force according to its terms.”
    The agreement contains no covenant on the part of defendant to transport free of charge, the steam loader, the boarding car, or the men engaged in loading, yet there seems to have grown up a practice to do all these things. The loaders were carried free while all other woodsmen in the employ of the lumber company were charged fares when going to and from their work. Very few passengers were carried, and when any presented themselves for carriage they were required, under the rules of the company, upon payment of fare, to sign the following release:
    “Good only when officially executed by conductor as indicated by punch marks in amount column. This permit is accepted by the holder with a full understanding that this company is not a common carrier of passengers by its freight trains; that such trains are not safe as passenger trains, and do not stop at station platforms, and the holder of this permit assumes all risk of injury from accidents while riding on or getting to and from the train. If used as half fare the parent or guardian must sign the release. Only hand baggage will be carried. No baggage will be checked on this permit.
    “I agree to the above contract.
    “[Signature of Purchaser.]”
    The schedule of rates governing the Haakwood Branch, published and filed according to law, was as follows:
    “One way train fares for- use of conductors in collecting cash fares on logging branches of Mackinaw Division between stations where no tickets are used. Passengers will be carried on freight trains between stations on logging branches Mackinaw Division, Michigan Central Railroad, at the fares named below,' and subject to the following conditions. Conductors will issue to each passenger a cash fare permit, form L. T. D., requiring each passenger to sign the release on the back thereof, facsimile of which is shown below. Cash fare permit will not be valid for passage unless signed by the passenger.”
    Act No. 300 of the Public Acts of 1909 (3 How. Stat. [2d Ed.] § 6524), is regulatory of common carriers. Section 5 thereof prohibits railroads from carrying passengers free, except employees and certain other enumerated persons, of whom plaintiff’s decedent was not one. The same section makes a violation of this provision a misdemeanor, punishable by a fine of from $100 to $500. The passenger accepting free transportation is subjected to the same penalty as the carrier who furnishes it.
    Section 10, subd. (a) compels the publication and filing of schedules. It is undisputed that this portion of the act was complied with by defendant, and that no other rates or concessions were in effect, except as shown by the schedules on file, at the time Maurer received his injury.
    The fourth count of plaintiff’s declaration sets out the various duties of defendant and the several breaches thereof. It is further charged:
    “That upon, to wit, the day aforesaid, plaintiff’s intestate was employed by, to wit, one Frank Buell as engineer of a certain steam log loader then in use at and about certain logging, banking, and loading grounds upon said Haakwood Branch of defendant’s said railroad at and near what is commonly known and referred to as Doane’s switch, in the township of Waverly, Cheboygan county, and that under and in pursuance of a certain practice, understanding, and agreement between said defendant and intestate’s said employer, said defendant undertook, consented, and agreed to carry and transport plaintiff’s intestate and others similarly employed upon and about said log loader from the point where so employed over and along said Haakwood Branch and to the main line of said railroad and elsewhere upon-its freight and logging trains operated upon such branch, and for a long time prior thereto had made it a practice to carry and transport such persons upon said trains and within the way car thereof and otherwise.
    “That upon, to wit, the date aforesaid, the plaintiff’s intestate boarded a certain log and freight train at, to wit, said Doane’s switch, and entered the way car thereof for transportation thereon in accordance with the usual practice in that regard, and at the invitation and with the knowledge and consent of said defendant, and said defendant, in pursuance of said practice and under such certain understanding and agreement, undertook and consented to carry and transport said plaintiff’s intestate upon said train and in the way car thereof from, to wit, said Doane’s switch to, to wit, Wolverine, to wit, Vanderbilt, upon the main line of said railroad.
    “And plaintiff alleges that, defendant having so undertaken and agreed to carry and transport plaintiff’s intestate as aforesaid under the said practice, understanding, and agreement, it then and there became and was the several duty of defendant.”
    The court, after refusing to direct a verdict in favor of defendant, submitted the case to the jury under the fourth count.
    Upon the question of defendant’s negligence the court charged:
    “Under the evidence in this case the only duty which defendant owed to plaintiff’s decedent was to properly inspect the loaded car from which the log which killed decedent fell. This duty does not make defendant an insurer that the log would not fall from the car. And if you believe from the evidence in this case that the employees of the defendant were competent men for that duty and made a reasonably careful inspection of said car, your verdict must be for the defendant — and determined that the car was safe, I would add to that.”
    And further:
    “There is, however, a preliminary question which I think you should first settle or first consider before you go into this question of negligence. That is as to whether or not the plaintiff is entitled to recover at all. It is the claim of defendant that Mr. Maurer was a trespasser on this train. In other words, that he •had not any right to be there or to ride there without paying his fare. Attention has been called, and I think the statute has been read in your presence— if not I state it to you — that it is the law of this State that no one has any right to ride upon a passenger train or any train carrying passengers, in any way, without paying fare. The law makes it a criminal offense for any one to so ride and it makes it a criminal offense for the conductor to permit any one to ride upon the train without paying his fare. Now the claim of the defendant is that this was the way in which this man rode, and I say to you as a matter of law that if he was so riding and knew he was so riding in violation of this law, he cannot recover in this case. But it is the claim of the plaintiff that he was not so riding. That while he did not personally pay his fare, that he had reason to believe, and they claim that he did believe, that he had a right to be carried under some arrangement or agreement made by his employer, Mr. Buell, and the railroad company, whereby these loaders were to be carried. Now, if you find that to be true, if you find that this man believed — and you must take the evidence of the conductor as to what he believed, and also the evidence of the other loaders who have been sworn — if you find that this man who was killed, Mr. Maurer, believed that he had a right to ride on this train, and that he was not violating any law in doing it; that his carriage was in some way arranged for by his employer — then I say to you that he was lawfully on the train, and if he was lawfully there the defendant owed him a duty. Now, if you find that he was lawfully on the train, we next come to the question as to what duty the defendant company owed him and the claimed act of negligence on which the plaintiff relies.”
    Plaintiff having recovered a judgment for $5,500, defendant reviews the case in this court by writ of error.

       On the question of the degree of care owed to free passenger in absence of stipulation upon the subject, see notes in 5 L. R. A. (N. S.) 721 and 46 L. R. A. (N. S.) 142.

      For the liability of the proprietor of a logging railroad for injuries sustained by person other than employee, while being carried thereon, see notes in 12 L. R. A. (N. S.) 131 and 22 L. R. A. (N. S.) 190.

       As to the liability of a railroad company for injury to person wrongfully on freight train by collusion with a train employee, see notes in 5 L. R. A. (N. S.) 1025 and 37 L. R. A. (N. S.) 421.

   BROOKE, J.

(after stating the facts). The evidence introduced on behalf of plaintiff conclusively shows, that the load in question was loaded by experienced men in accordance with the rules of the defendant company and a practice which had prevailed for many years. We think it also sufficiently appears that the method followed had proven reasonably’ safe and efficient. There is no testimony in the record tending to show that the conductor, or any member of the crew of the train, was either inexperienced or incompetent. The inspection made by the conductor was the usual one, and he testified that he believed the car to be safely loaded; otherwise he would have refused to receive it in his train. Nor is there any evidence that a proper inspection would have disclosed a defect in the wiring. The loading and wiring were done by fellow-servants of Maurer and every log in the load was placed in position by himself, operating the steam loader, under the direction of the top loader. If the car was improperly loaded or wired, it would seem that the negligence involved would be that of a fellow-servant. Powers v. Lumber Co., 92 Mich. 533 (52 N. W. 937).

But be this as it may, there is, in our opinion, another and an insurmountable obstacle to plaintiff’s recovery. The statute (Act No. 300, Pub. Acts 1909) absolutely prohibits defendant from furnishing, and all persons from accepting, transportation except in compliance with the provisions of the law. Had plaintiff’s decedent complied with the lawful requirements for transportation over this logging branch, the terms of his contract would have prevented recovery. Can it be said that because he (either innocently or wilfully) violated the law, he is thereby placed in a better position than he would have occupied had he complied therewith? We think not. Maurer was not a “passenger” in the ordinary acceptation of that term, upon a passenger train. He wasr at most a bare licensee, to whom defendant owed no duty except to refrain from injuring him wantonly or wilfully. 3 Elliott on Railroads, § 1255, and cases-cited.

The cases cited and relied upon by plaintiff have been examined. They are cases based on the carriage of passengers upon passenger trains, and are therefore not applicable to the case at bar, where the train was not a passenger train, and where the conductor thereof was held out to the public as one having a definite and limited authority as to the terms upon which passengers should be carried. Defendant had the right to impose such restrictions touching its liability as it saw fit with reference to the carriage of passengers upon its logging trains. Arnold v. Railroad Co., 83 Ill. 273 (25 Am. Rep. 386). We have recently held that the general rules in use for the operation and maintenance of trains on the main line are impracticable and inapplicable to logging roads. Ingersoll v. Railway Co., 168 Mich. 380 (134 N. W. 441).

The learned circuit judge predicated plaintiff’s right to recover upon Maurer’s belief “that he had a right to ride on this train, and that he was not violat-' ing any law in doing it.” That is to say, that the consequences of an illegal act may not be visited upon one who ignorantly violates the law. Aside from the fact that the record is barren of evidence as to what Maurer believed when he took passage upon the train, it is clear that his ignorance of the law, if it existed, cannot affect his legal rights. 1 Elliott on Evidence, §96. 1 Jones on Evidence (1st Ed.), §20.

The conductor had no authority to bind defendant by inviting or permitting Maurer to ride upon a logging train in contravention of its published schedule and the statute. See Moore v. Railroad Co., 115 Mich. 103 (72 N. W. 1112).

We conclude that a verdict should have been directed in favor of defendant.

The judgment is reversed, and there will be no new trial.

McAlvay, C. J., and Stone, Moore, and Steere, JJ., concurred with Brooke, J.

Bird, J.

(dissenting). Being unable to agree with Mr. Justice Brooke in the conclusions he has reached in this case, I herewith submit my own views.

The declaration counts upon the fact that the car was improperly loaded and also upon the want of a proper inspection. Experienced loaders gave evidence on the trial that the car was improperly loaded. The testimony on both of these questions was ample in my judgment to carry them to the jury. But it is said that the deceased was a fellow-servant of the loaders, and therefore plaintiff cannot recover. Notwithstanding this fact, if the defendant was negligent in its inspection of the car béfüreplacing it in the train, the fact that the deceased was a fellow-servant of the loaders would furnish no protection to defendant against its own negligence. McDonald v. Railroad Co., 108 Mich. 7 (65 N. W. 597); Noble v. Steamship Co., 127 Mich. 103 (86 N. W. 520, 54 L. R. A. 456, 89 Am. St. Rep. 461); Welch v. Traction Co., 154 Mich. 399 (117 N. W. 898).

The right to recover is finally denied plaintiff on the ground that in boarding the train to ride from his work to his home in Wolverine the deceased violated Act No. 300 of the Public Acts of 1909 (3 How. Stat. [2d Ed.] § 6524), prohibiting free transportation. From the testimony it clearly appears that the deceased understood that he had a right to ride by reason of some arrangement between his employer and defendant. The conductor recognized this right and permitted him to ride, and, from the testimony, it further appears that in 1907 some agreement was made whereby the loaders were to be carried to and from their work. If the transportation of the loaders was being taken care of by the agreement, the deceased was not violating the act prohibiting free transportation.

But whatever the facts are concerning the agreement, it was conclusively shown that both the deceased and the conductor understood that plaintiff’s intestate was to be carried to and from his work. This being so, the deceased thereby became a passenger and was entitled to the same protection against negligent injuries that other passengers were entitled to on the logging train. It is said his belief that he had a right to ride and his ignorance of the law cannot avail him. If the deceased, in good faith, believed he had the right to ride, as the jury found by their verdict, he jiould not be guilty of wilfully violating the law. But suppose he did know the law and was in doubt about his right to ride, but was accepted and recognized as a passenger by the conductor, how does that absolve the defendant from answering to him or his estate for negligent acts for which it would be obliged to answer to any other passenger? If it is to be held that the company is absolved because the deceased was riding in violation of law, what becomes of the case of Van Auken v. Railway Co., 96 Mich. 307 (55 N. W. 971, 22 L. R. A. 33), wherein it is held:

“That a'party traveling upon the highway upon a Sabbath, either from necessity or for pleasure or business, who is injured by a collision with a railway train at a crossing, is not barred from recovery against the [railroad] company for its negligence from the fact that the injury occurred on Sunday.”

The only difference between that case and this is that in the case cited the plaintiff alone was violating the law, whereas in this case it is said both plaintiff and defendant were violating it. The rule governing such cases is very clearly laid down by Hutchinson on Carriers (2d Ed.), (section 566).

“The carrier is liable to persons whom it accepts for transportation over its line, and from whom it demands no fare, to the same extent that it is liable to passengers who pay fare. A person riding on a free'pass is as much a passenger as if he were paying full fare, and if the pass is given for a valuable consideration, he is a passenger for hire. The fact that the carrier is prohibited by law from issuing free passes does not render a person a trespasser who travels upon such a pass unlawfully HssuecTTo him. If the pass is unlawful, the conductor should demand the regular fare, and his failure to do so will not make the traveler a trespasser, nor destroy his rights as a passenger.” [5 Am. & Eng. Enc. Law (2d Ed.), pp. 507, 508.]

This rule has been followed by many State courts and by the Federal Supreme Court. Buffalo, etc., R. Co. v. O’Hara, 3 Penny. (Pa.) 190; McNeill v. Railroad Co., 135 N. C. 682 (47 S. E. 765, 67 L. R. A. 227); John v. Railway Co., 42 Mont. 18 (111 Pac. 632, 32 L. R. A. [N. S.] 85); Bradburn v. Light Co., 45 Wash. 582 (88 Pac. 1020, 14 L. R. A. [N. S.] 526); Gabbert v. Hackett, 135 Wis. 86 (115 N. W. 345, 14 L. R. A. [N. S.] 1070; Schuyler v. Southern Pacific Co., 37 Utah, 581 (109 Pac. 458); Id., 37 Utah, 612 (109 Pac. 1025); Southern Pacific Co. v. Schuyler, 227 U. S. 601 (33 Sup. Ct. 277, 43 L. R. A. [N. S.] 901).

The last case cited deals with the penalty clause of the Hepburn act (Act June 29, 1906, chap. 3591, 34 Stat. 584, § 1 [U. S. Comp. Stat. Supp. 1911, p. 1284]) which makes both the giver and receiver of free transportation equally guilty of a violation of the act. It is said:

“But, finally, it is argued (b) That it was beyond the power of the State court to ‘read into the Hepburn act an exception in favor of gratuitous passengers,’ thereby (as is said) enlarging the class to whom Congress limited the right of free interstate transportation. This is ingenious, but, as we think, unsound. As applied to-the concrete case, it is equiva- • lent to saying that the operation of the Hepburn act is such as to deprive one who, in good faith and without fraud, and with the consent of the carrier, but in actual though unintentional violation of the prohibition of the act, accepts a free passage in interstate transportation, of the benefit of a rule of local law that renders the carrier in such circumstances responsible for exercising care for the passenger’s safety because the carrier has voluntarily undertaken the burden of such care. But the act itself declares what penalty shall be imposed for a violation of its prohibition:
“ ‘Any common carrier violating this provision shall be deemed guilty of a misdemeanor and for each offense, on conviction, shall pay to the United States a penalty of not less than one hundred dollars nor more than two thousand dollars, and any person, other than the persons excepted in this provision, who uses any such interstate free ticket, free pass or free transportation, shall be subject to a like penalty.’
“This penalty is not to be enlarged by construction. Neither the letter nor the spirit of the act makes an outlaw of him who violates its prohibition by either giving or accepting gratuitous interstate carriage. The deceased no more forfeited his life, limb, or safety, and no more forfeited his right to the protection accorded by the local law to a passenger in his situation, than the carrier forfeited its right of property in the mail car upon which the deceased rode. His right to safe carriage was not derived, according to the law of Utah, from the contract made between him and the carrier, and therefore was not deduced from the supposed violation of the Hepburn act. It arose from the fact that he was a human being, of whose safety the plaintiff in error had undertaken the_ charge. With its consent he had placed his life in its keeping, and the local law thereupon imposed a duty upon the carrier, irrespective of the contract of carriage. The Hepburn act does not deprive one who accepts gratuitous carriage, under such circumstances, of the benefit and protection of the law of the State in this regard.”

In my opinion the judgment of the trial court should be affirmed.

Kuhn and Ostrander, JJ., concurred with Bird, J.


source: Caselaw Access Project

author: Moore, j.

license: Public Domain

text:
    McGARY v. BUICK MOTOR CO.
    1. Evidence — Master and Servant — Personal Injuries — Negligence — Elevators.
    It was not erroneous, in a personal injury action, instituted by an employee against his employer for injuries received when the freight elevator that carried him tipped up and caused the materials upon it to fall against him, to receive evidence of subsequent action of the elevator under operation, where, during the course of the trial, experiments were made in the presence of the jury to show the action of the machinery.

    2. New Trial — Motions—Personal Injuries.
    Although the trial judge expressed his views, in denying a motion for a new trial, that he would have determined the case in a different manner than the jury decided it, and that he did not believe that any negligence was made out, the Supreme Court will not reverse his ruling denying defendant’s motion for a new trial, unless the verdict is against the overwhelming weight of the evidence.
    3. Master and Servant — Negligence—Defective Machinery.
    Evidence tending to show that defendant’s elevator had a broken shoe or guide which permitted the platform to tilt , and throw the freight against plaintiff, held, to present a question for the jury as to alleged negligence of the employer.
    Error to Genesee; Wisner, J.
    Submitted April 14, 1914.
    (Docket No. 33.)
    Decided October 2, 1914.
    Case by Edward McGary against the Buick Motor Company for personal injuries. Judgment for plaintiff. Defendant brings error.
    Affirmed.

      Austin J. Spaulding and Carton, Bray & Stewart, for appellant.

      Farley & Selby, for appellee.

       Upon the question of evidence as to conditions before and after accident, see note in 32 L. R. A. (N. S.) 1093 and 1103.

   Moore, j.

In March, 1912, the plaintiff was employed by the defendant to operate a freight elevator in one of its factory buildings. He received injuries, for which he brought this suit. From a judgment in his favor, the case is brought here by writ of error.

The errors assigned are grouped by counsel as follows:

(1) It was error to permit testimony as to the behavior of the elevator after the accident.

(2) The court erred in refusing to grant a new trial.

(3) The court erred in refusing to direct a verdict in favor of the defendant.

The elevator was constructed in the usual manner of freight elevators. It is the claim of plaintiff that he had worked upon the elevator something more than a year without having any trouble; that, about a week before he was injured, the elevator was carrying a truck load of heavy boxes, and, when an attempt was made to run the truck out on the third floor, the elevator tilted, throwing off the boxes, and plaintiff narrowly escaped injury.

It is claimed the millwright found that a metal shoe which acted as a guide was split from top and bottom, and was held in place only by one bolt.

Plaintiff claims, after the boxes were thrown off, he notified the superintendent, who promised to have the trouble remedied at once, and that plaintiff, supposing this had been done, continued to operate the elevator for about a week, when a truck loaded with dashes, making a heavy load, was run up to the third floor, when, in attempting to run the truck off' the elevator, it again tilted, throwing the dashes over plaintiff, and injuring him.

The action was defended on the principal ground that the guide shoe in question, whether broken or not, and whether on or off, did have and could have no influence or bearing upon the action of the elevator. It appears that, when the truck was to be run out of the elevator upon the factory floor, two maple boards, five or six inches wide and several feet long, were put under the front wheels of the truck, extending from there out upon the floor of the factory, and it is claimed by the defendant that the breaking of one of these boards was the cause of the accident.

An attempt was made to show by the witness, who ran the elevator after plaintiff was injured, how it acted, and the testimony was excluded.

On the part of the defense, a witness was being examined as to the elevator, when the following occurred :

“Q. Now, since you testified before and gave your opinion, have you made any experiment which gave you additional knowledge which you did not have at that time?
“A. Yes, sir; I have.
“Mr. Selby: I object to that as incompetent.
“Mr. Farley: Do you want to go into the testimony as to the new shoe? If that proposition is taken up, we want an opportunity to go into it, too. (Question and answer repeated.)
“The Court: That is competent.
“Mr. Farley: The proposition, your honor, is, if they propose to show the effect of the putting on of this new shoe, I suppose that will open up the proposition so that we can go into that also, if it is competent for them.
“The Court: If they introduce anything now, you have got a right to controvert it; there is not any question about that; but it is certainly competent for him to show whether he has made any experiment which has changed his mind in respect to it in any way.
“Mr. Selby: The objection relates to any condition that may exist to the elevator since.
“The Court: What say?
_ “Mr. Selby: The objection relates to any conditions which he may have observed in the elevator since that time. You will remember when the question was put to Mr. Eberhardt as to how it acted immediately after the new casting was put on, as compared with its actions before, Mr. Bray objected to the question, and it was ruled out as relating to something that occurred after the accident, and my objection only relates to anything that he may have discovered.
“The Court: If that elevator is in the same condition it was before the accident, they can show any experiment that had been made with it to test it; not only that, if they want to, I will send the jury over there to see it. I think they can get a better idea by looking at that elevator than they can by volumes of testimony in regard to how it is constructed, and all about it.
“Mr. Bray: I would be very glad to shorten this up and let the jury look at it.
“The Court: If you request it — you have given some testimony now tending to show no change has been made in this plank you speak of.
“Mr. Selby: Under that condition, will your honor say the testimony of Mr. Eberhardt, as to just the way the elevator acted immediately before, as compared with its condition immediately after, the new casting was put on, would be competent?
“The Court: It would be a question for the jury whether it did or not.
“Mr. Bray: I did not intend to go into any question of how the elevator itself acted after the new shoe was put on. I only had in mind an experiment that was made for the purpose of testing whether that shoe on or off made any difference with the action of the elevator; that is all.
“Mr. Farley: Of course the evidence of Mr. Willis was that there was no plank on there; he did not see any; and he helped take off the casting; that there was no plank on there; that is Mr. Willis’ testimony. Of course we don’t know that the conditions are the same.
“The Court: The witness swears they are — swears every one of those 16 elevators are built the same way with that plank in, just the same way. Now, that is sufficiently broad to show at least a scintilla of evidence that there has not been any change.
“The Witness: In the whole 16 there are 2 that have not any plank on.
“The Court: Two out of the 16.
“The Witness: The Morris-Williams type, they don’t have any plank.
“The Court: That is a different kind of elevator?
“The Witness: A different kind of elevator.
“The Court: All we want to get at is justice; that is all. We don’t want any technicalities or confusion of witnesses.
“Mr. Farley: I would suggest that if we could also have a truck loaded with 256 dashes, and run it on there into the center of the elevator, and run it off, and see whether it is safe.
“The Court: The proper way to do is to go over there and let the jury inspect the elevator, then put a truck on with this kind of a load on it and with this steel shoe in place, run it up to the floor, and see how much the tilt is when that load is run off, then take it down and take off the steel shoe, and run it up to the same place with the same load on, and see. whether there is any difference in the tilt or not. That is a proper experiment to make, in my judgment.
“Mr. Farley: That would be a very good experiment.
“The Court: Using the running board the same as was used on that occasion.
“Mr. Bray: It may take some little time.
“The Court: We want to get at the justice of this thing.
“Mr. Bray: It may take some little time to prepare this load.
“Mr. Farley: We would rather not have it prepared.
“The Court: It is not necessary to put on a load of dashes. Put on a load of the same weight ; put on some castings that will weigh the same amount.
“Mr. Bray : We will be very glad to do it. That is the identical experiment I was going to ask him about. It would please us very much. That is the identical experiment I was going to ask him about.
“The Court: That is certainly a fair proposition.
“Mr. Farley: I think that is very fair.
“The Court: That is what we will do.”

Later, at the request of defendant, plaintiff consenting thereto, the jury were taken to the plant and the experiments were made. Upon the record as made, we think the testimony was competent.

Groups 2 and 3 may be considered together.

It was the claim of defendant that the metal shoe was bolted to a plank just below it, and that the ends of the plank would fit the guide posts so snugly that the elevator would not tip, even though the metal shoe was broken. The plaintiff claimed that the metal shoe was bolted to an I-beam and not to a plank, and that the tilting occurred because of the broken shoe.

We have already stated the jury were taken to the elevator and saw it operated. At the close of the testimony the following occurred:

“Mr. Bray: I would like at this time to renew my motion and ask for instruction, your honor.
“The Court: Well, I think I will have to submit it to the jury whether or not the broken casting caused this accident or not.
“Mr. Bray: All right. We understand that is practically the only question in the case.
“The Court: That is the only question I see now. They have attributed a broken casting as the cause of the injury. Unless the jury can find the broken casting did it, in my judgment the plaintiff has no case, but I am going to submit that to the jury.”

The court, after stating the claims of the respective parties, and that, unless the broken shoe caused the injury, there could be no recovery, charged the jury in part as follows:

“I charge you that if you find that the shoe or casting under the floor of the elevator was so broken as to cause the elevator floor- to sway, tilt, and sag in an unusual manner and to a dangerous extent, at the point where the loaded truck was being removed, and if you find that such broken casting was the efficient and proximate cause of the loaded truck and dashes being overturned, and that such loaded truck and dashes would not have overturned except for such defective casting, you would then be warranted in finding such defective casting or shoe was the proximate cause of the injury, even though you may find that one of the running boards placed across the opening between the floor of the elevator and the factory floor may have broken. * * * You will observe, in this case, that the negligence counted upon by the plaintiff, which the plaintiff claims entitled him to recover, is the broken condition of a casting under the elevator floor, the guide, and his contention is that that contributed to the tipping over of the truck. Now, upon that subject, of course, you will consider all the evidence in the case, the evidence here that below or above that shoe was a wooden plank with a notch in it of practically the same size that is in the casting below. You will consider the testimony given here in respect to that, and will consider the conclusion you may have reached from a personal examination of the elevator yesterday. I stated to all of you (there in the hearing of all of you) that you should make a special examination to determine in substance whether or not that plank bore any evidence of having been recently placed there, or, rather, you should determine whether it was there as long ago as the time that this accident occurred, and if you should find from the evidence, or not be able to say that such was not the- fact, that that plank was in position at the time of this accident, and that it would not permit any more swaying of that elevator than would exist under ordinary circumstances, and with a perfect casting there, then, of course, there could be no negligence in respect to that casting that would entitle the plaintiff to recover, because certainly if that shoe (if that wooden shoe) was in existence at the time of the accident, and permitted no more swaying with the casting actually taken off, it would certainly be as serious a defect as to have a broken casting there to have none at all, so, if you should conclude that existed at that time, the plaintiff could not recover,' and, in order to recover, you must find that the evidence preponderates in favor of the proposition that that wooden shoe was not there, or, if it was there, that it did permit a swaying. * * *
“Not only that, gentlemen of the jury. There is another proposition. Having considered all of the evidence pro and con in respect to this issue, and the tilting of the elevator, and all that sort of thing, you then naturally consider the question of this running board that was used as a skid to reach from the elevator to the floor, and, if you should conclude that the breaking of that skid was the proximate cause of that car tipping over and inflicting such injuries as plaintiff has suffered, then the plaintiff cannot recover.”

In overruling the motion for a new trial, the court made reference to the fact that the case had been twice tried, and to the expense to the county of the litigation, and said in part:

“Well, the first jury disagreed. It was submitted to a second jury and, .1 think, fairly submitted. I do not believe the court committed any error, unless it was an error of submitting it to the jury at all. The charge was clearly in favor of the defendant, if the jury paid any attention to it, but they found a verdict. And while the court cannot bring itself to agree with the jury in that respect, for my verdict would have been different under the proofs, yet there is no use of having a jury, if you do not let them judge of the facts. I disagree with them on two grounds: First, I do not believe that the Buick Motor Company was guilty of any negligence; and, second, I have grave doubts whether the condition of Mr. McGary was at all attributable to the accident he had on that occasion. I am not a medical man, but I have some slight idea of mechanics, and it does not look to be a mechanical proposition that such an injury as he complains of could be attributed to the accident he received there. But I am not the judge of that. There was medical testimony that it might be attributable to such an accident, and the jury found that it was.”

In his order overruling the motion for a new trial, the court gave his reasons for doing so in part:

“(5) Because the verdict of the jury is supported by the evidence received on the trial of said cause.
“(6) Because the verdict of the jury is not against the weight of evidence offered and received in the trial of said cause. * * *
“(10) Because the broken shoe or casting, as alleged in plaintiff’s declaration, and under the proof offered in respect thereby by the plaintiff upon the trial of said cause, was the proximate cause of the accident which resulted in the injury to the plaintiff.”

Counsel for appellant lay much stress upon what the trial court said about his own belief of the negligence of defendant, and insist a new trial should have been granted, citing Nelson v. Dutton, 51 Mich. 416 (16 N. W. 791), and Krouse v. Railway, 166 Mich. 147 (131 N. W. 548), and other cases cited in brief of counsel. A reference to them will show they are not controlling upon the record made.

The language of Justice Stone is pertinent upon the question whether a verdict should have been directed as well as upon the question of a new trial. We quote from Gardiner v. Courtright, 165 Mich. 54 (130 N. W. 322):

“So we are brought back to the question whether or not the verdict was against the weight of evidence. Upon this subject counsel for appellant lays great stress upon the number of witnesses, as to the claimed admissions of the plaintiff. This court has spoken so often upon the subject of preponderance of evidence, and the convincing weight of evidence being generally a question for the jury, that we do not need to do more than refer to some of the cases. Strand v. Railway Co., 67 Mich. 380 (34 N. W. 712); McIntosh v. McIntosh, 79 Mich. 198 (44 N. W. 592); Hoffman v. Loud, 111 Mich. 156 (69 N. W. 231); Dupuis v. Traction Co., 146 Mich. 151 (109 N. W. 413).
“The rule is well settled that this court will only reverse a case upon the question of the weight of the evidence when the verdict is against the overwhelming weight of the evidence. The verdict must be clearly against the great weight of the evidence, to require this court to overrule the decision of the circuit judge refusing a new trial. This rule has been repeatedly stated by us. Wheeler v. Jenison, 120 Mich. 422 (79 N. W. 643); Brennan v. O’Brien, 121 Mich. 491 (80 N. W. 249), Stevens v. Soap Works, 134 Mich. 350 (96 N. W. 435); Hintz v. Railroad Co., 132 Mich. 305 (93 N. W. 634); Saginau Milling Co. v. Mower, 154 Mich. 620 (118 N. W. 622); Malinowski v. Railway, 154 Mich. 104 (117 N. W. 565); Muir v. Corset Co., 155 Mich. 624 (119 N. W. 1079); Jackson v. Railway Co., 161 Mich. 163 (125 N. W. 763); Matla v. Vehicle Co., 160 Mich. 639 (125 N. W. 708); In re Parr’s Estate, 161 Mich. 244 (126 N. W. 197); Spray v. Ayotte, 161 Mich. 593 (126 N. W. 630); In re Hoyles’ Estate, 162 Mich. 275 (127 N. W. 284).”

See, also, Fike v. Railroad Co., 174 Mich. 208 (140 N. W. 572); Druck v. Lime Co., 177 Mich. 364 (143 N. W. 59).

In the instant case there was a sharp conflict in the testimony as to some of the material issues. At the request of the defendant, the jury were taken to the plant and saw the elevator in operation. The judge in his charge, as already appears, suggested:

“I stated to all of you (there in the hearing of all of you) that you should make a special examination to determine in substance whether or not that plank bore any evidence of having been recently placed there, or, rather, you should determine whether it was there as long ago as the time that this accident occurred, and if you should find from the evidence, or not be able to say that such was not the fact, that that plank was in position at the time of this accident, and that it would not permit any more swaying of that elevator than would exist under ordinary circumstances, and with a perfect casting there, then of course there could be no negligence in respect to that casting that would entitle the plaintiff to recover.”

We think it cannot be said upon this record there .was no case for a jury.

Judgment is affirmed.

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


author: Moore, J.

text:
    STETSON v. MACKINAC TRANSPORTATION CO.
    1. Master and Servant — Negligence—Evidence.
    Evidence that plaintiff, who claimed to be in defendant’s employ in the engine room of a ferry boat, was ordered to make the boat fast to the dock, and in doing so he was caught by the cable, and, as defendant contended, because of the ordinary tightening of the same, he was struck and injured, plaintiff testifying that the accident was caused by the starting of the engines before he had time to get out of the way, held, to present issues of fact for the jury as to the existence of the relation of master and servant and the claim of negligence.
    2. Witnesses — Evidence—Matters Equally Within Knowledge oe Deceased Agent — Corporations.
    Before evidence concerning instructions which were given plaintiff by a deceased officer of defendant corporation could be excluded from the record as eaually within the knowledge of deceased, it must be made to appear that the testimony and facts were not within the knowledge of any surviving officer or agent, within the express conditions of section- 10212, 3 Comp. Laws (5 How. Stat. [2d Ed.] § 12856).
    3. Damages — Excessive Verdict — New Trial.

      Held, also, that $5,000 was not an excessive verdict for the paralysis and substantial loss of use of plaintiff’s leg, accompanied by severe pain; his earnings having amounted to $45 per month and board, plaintiff being about 34 years of age.
    Error to Cheboygan; Sharpe, J.
    Submitted April 16, 1914.
    (Docket No. 48.)
    Decided October 2, 1914.
    Rehearing denied December 19, 1914.
    Case by Don C. Stetson against the Mackinac Transportation Company for personal injuries. Judgment for plaintiff. Defendant brings error.
    Affirmed.

      James H. Campbell, for appellant.

      C. S. Beilley, for appellee.
   Moore, J.

This is a personal injury case. From a judgment of $5,000 in favor of the plaintiff, the case is brought here by writ of error.

The plaintiff was employed in the engine room of a steam ferry boat 400 feet long and 90 feet beam, used to transfer loaded railroad cars and engines across the straits of Mackinac. The plaintiff was coming from his home to the dock to go to work upon the boat, at 12 o’clock noon. When he got to the dock, which projects into the waters of the straits several hundred feet, the boat was coming across the straits. The boat came to the dock headed north, with its side to the east end of the dock. It was desired to shift her position so that the side would be on the south side of the dock with her stern toward the land. To accomplish this a steel cable 1% inches in diameter, with a loop in the end of 5 to 8 feet, was passed through a chock hole in the side of the boat about 10 or 12 feet above the water. Attached to the loop was a heaving line 50 feet or more in length. The other end of the cable was wound around a capstan in the boat operated by a steam engine.

It is the claim of the plaintiff that the heaving line was thrown to him by those in authority over him on the boat, they at the same time calling out to him to throw the loop over a large cleat in the dock; that he did so, ánd before he could get out of the way the engines of the boat were started, the cable was drawn taut, and he was struck by it and was severely hurt.

It was the claim of the defendant that there was no force applied to the cable except to start the capstan in motion.

The other claims will be considered in connection with the discussion of the errors assigned.

The first assignment discussed is stated by counsel as follows:

“The defendant contends that the evidence does not sustain the charge of negligence of the defendant; that the evidence is conclusive to the contrary; and that a verdict should have been directed for the defendant.
“The plaintiff is not entitled to recover, except upon the ground that after the cable had been placed upon the cleat the boat was, by the action of the employees of the defendant in charge of it and by the application to the boat of her steam power, by the operation of her engines, propelled ahead with great speed and headway causing the cable to tighten and spring up so as to strike the plaintiff.”

The argument of appellant is based upon the theory that the only pull made upon the steel cable was by revolving the capstan. It is true this was the claim of defendant and its witnesses, but, as before stated, plaintiff claims, and thére is testimony to support the claim, that the engines of the boat were started and there was no opportunity for the plaintiff to get out of danger. This raised an issue of fact which was properly submitted to the jury. See Butterfield v. Arnold, 131 Mich. 583 (92 N. W. 97); King v. Railroad Co., 137 Mich. 487 (100 N. W. 783).

The second assignment of error is stated by counsel as follows:

“The plaintiff himself was guilty of negligence in going on the dock and between the warehouse and the dock while the operation of moving the large steel boat to the side of the dock by means of the cable was in progress. He had nothing to do there. His duties were on the boat, and did not begin until 12 o’clock, an hour or two later than the time of the accident. An effort was made to claim that he was in the employ of the defendant while on the dock idling there with a number of others, because when the line attached to the cable was thrown onto the dock the mate from the deck asked him to haul it up, and he did so. He did nothing else, and was- not asked to do anything else. He did not put the line onto the cleat _or_ assist in doing it, and testified that he was not within 50 feet of the cleat at any time. He should not have remained between the warehouse and the dock and in a place of danger, and was clearly negligent in so doing.”

An elaborate argument is made under this head in the printed brief by counsel for appellant.

On the part of the plaintiff it is said:

“There is no question of contributory negligence in the case, as it appears that the' defendant had not elected to come within the provisions of Act No. 10, Public Acts of Michigan, Extra Session 1912, known as the compensation act, and said defendant, not having elected to come within the provisions of said act, lost its right to defend on the ground of contributory negligence.”

Upon the oral argument in this court counsel for appellant stated that, if the plaintiff was in the employ of the defendant when the accident occurred, his argument under this head had no force. That question was left to the jury, who found, and there-was testimony to support the finding, that plaintiff was in the employ of defendant when the accident occurred. This makes it unnecessary to discuss this phase of the case further.

We again quote from brief of counsel:

“Error was committed in the refusal to exclude plaintiff’s testimony as to instructions as to his duties given him by Walsh, defendant’s engineer, deceased at the time of the trial. * * * The statute (3 Comp. Laws, § 10212, as amended 1903, Act No. 30, p. 36), contains the provision that ‘when any suit or proceeding is prosecuted or defended by any corporation, the opposite party, if examined as a witness in his own behalf, shall not be admitted to testify at all in relation to matter which, if true, must have been equally within the knowledge of a deceased officer or agent of the corporation, and not within the knowledge of any surviving officer or agent of the corporation.’ ”

Counsel for appellee meet this objection by saying:

First, that when the testimony was admitted it was not shown by the record that Mr. Walsh was dead; second, that he was not such an officer or agent as to bring the case within the statute; and, third, that the record does not disclose that the matter about which testimony was given was not within the knowledge of any surviving officer or agent of the corporation.

As we think the last point is well taken, we think it unnecessary to express any opinion upon the other two.

We again quote from the brief of counsel for appellant :

“The questions on cross-examination by plaintiff’s counsel to Capt. Robertson, who was in charge of the boat at the time of the accident, as to accidents on former occasions caused by boats of which he had charge, were improper and prejudicial.
“These questions appear in the cross-examination of Capt. Robertson, called as a witness by defendant. He was asked whether, while he was on the Ann Arbor transfer boat (in 1901 or 1902), a man by the name of King was killed, also whether in June, 1902, when his boat was in the channel, he ran her into a skiff, and a man in the skiff was crushed and killed, and further questioned as to the circumstances and as to what the jury found. The impropriety and prejudicial effect of such questions as those in the presence of a jury is manifest, and the judgment should be reversed because of them, if for no other reason.”

. An examination of the record shows that defendant examined Capt. Robertson at great length as to length of his service and experience, presumably to show his capability as a vessel captain.

The questions to which exceptions are taken came out upon the cross-examination without interruption or objection from counsel, when the following occurred :

“Q. Well, the claim was made, wasn’t it?
“A. I guess it was made; yes.
“Q. And the jury—
“Mr. Sprague (interrupting): .1 object to that as incompetent, irrelevant, and immaterial. Improper cross-examination.
“The Court: I am inclined to think it is prejudicial,, Mr. Reilley. I sustain the objection.
“Mr. Reilley: Give me an exception.”

It will be observed that the objection made by counsel for appellant was sustained and that the exception was taken by counsel for appellee. The situation does not call for discussion.

But one other group of assignments of error require discussion, though all the other assignments of error have been examined. We again quote from the brief of counsel:

“There was error in overruling the second ground of the motion for new trial that the verdict was excessive. The amount of the verdict was $5,000, and there is nothing in the evidence which warrants any such award.”

The plaintiff was but 34 years old. He was earning $45 a month and upwards, and his board. There was testimony tending to show an injury that caused great pain and suffering and that at the time of the trial plaintiff had practically lost the use of one of his legs, and was compelled to use either a cane or a crutch, constantly:

One of the doctors testified in part:

“All the muscles in the left leg seem affected. It amounts to partial paralysis. You can’t swing the leg around for the different motions that he has in the other leg. It is my determination that he has partial paralysis of the left leg.”
“There seems to be a loss of nerve conductivity in the leg. It fails to respond to electric stimuli, except pressure on the leg. If he presses anything he can feel that, but you put the battery on that and the muscles or nerves don’t react, nor does he feel it, while on the other leg he does.”

The trial judge hád the great advantagé of seeing the physical condition of the plaintiff, and we are not inclined to reverse his action in overruling the motion for a new trial, based upon the claim of an excessive verdict.

Judgment is affirmed.

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


text:
    WOLVERINE SPICE CO. v. FALLAS.
    1. Amendments — Pleading—Trial.
    Under the statute of amendments, it was not error to permit plaintiff, in an action for breach of warranty, to amend his declaration on the day of trial by making the averments more specific. 3 Comp. Laws, §10268 (5 How. Stat. [2d Ed.] § 12969).
    •2. Appeal and Error — Exceptions—Saving Questions.
    Objections and exceptions are essential to review, on appeal, the admissibility of ‘evidence received at the trial of an action at law.
    3. Sales — Breach oe Warranty — Express Warranty — Excluding Implied — Fitness- oe Merchandise.
    An express warranty as to quality and method of packing preserved fruit did not exclude an implied warranty of fitness for use and consumption.

    4. Same — Actions—Delay.
    Delay in commencing an action for breach of the implied warranty of fitness might be excused by testimony tbat tbe defect claimed to exist was not obvious and it required time to discover tbe existence of sucb unfitness.
    Error to Kent; Brown, J.
    Submitted April 22, 1914.
    (Docket No. 108.)
    Decided October 2, 1914.
    Assumpsit by the Wolverine Spice Company against Edwin Fallas for breach of warranty. Defendant brings error.
    Affirmed.

      R. M. Shiv el, for appellant.

      Taggart & Taggart, for appellee.

       On the question of the implied warranty of the fitness of articles of food, etc., bought for special purpose, see notes in 22 L. R. A. 195 and 15 L. R. A. (N. S.) 884.

   Moore, J.

Plaintiff is a manufacturer and jobber of baking supplies. Defendant operates a canning factory at Lowell, Michigan. This is an action to recover money paid by plaintiff to the defendant for 165 cases of canned apples manufactured by the defendant and sold to the plaintiff by him. From a judgment in favor of the- plaintiff the case is brought here by writ of error.

It is the claim of the plaintiff that prior to November, 1911, it bought fruit of defendant and had trouble with it because of a bad process of canning; that it had decided not to buy any more fruit from Mr. Fallas until after a talk with him, in which he said he had discovered the trouble and had remedied it; that, relying upon this statement, the following paper was signed:

“Edwin Fallas Canning and Canmaking Factory, “Capacity 8,000 Gallons Per Day.
“Lowell, Mich., Nov. 29, 1910.
“Edwin Fallas of Lowell, Michigan, has sold to Wolverine Spice Company of Grand Rapids, Michigan, 400 doz. No. 10 apples in sanitary cans, nice, bright stock, winter fruit and solid pack, at $2.70 per doz. f. o. b. Lowell, Michigan.
“To be shipped locally as wanted or $2.65 per doz. if at once in car lot.
“Terms: — 60 day note or 1% per cent, off in 10 days from above date.
“Swells guaranteed for 6 months from above date.
[Signed] “Edwin Fallas.
[Signed] “Wolverine Spice Company.
“A. D. Plumb, Pres’t.”

It is the further claim of the plaintiff that after receiving some of these goods, several of the cans taken at random were inspected and seemed to be all right. Before the fruit was all delivered, defendant expressed the need of money and plaintiff paid him for the goods; that later, it is the claim, the taste of gasoline and rubber permeated the fruit so that the customers of plaintiff made complaint, which complaints were transmitted to defendant, and that he urged plaintiff to have its customers instructed to boil the fruit uncovered, when the bad taste would disappear; one of the defendant’s letters, dated June 30, 1911, having the following language in it:

“I think if you would instruct your bakers to boil the apples in open kettles (no cover) that disagreeable odor, if any, would evaporate and disappear in the steam.
“Yours truly,
“Edwin Fallas.”

It is the further claim that the customers of plaintiff insisted they were entitled to good fruit without the bad odor, and that plaintiff tried to settle with defendant and have him take back the fruit, or settle for it. These efforts proving abortive, this litigation followed, with the result already stated.

The defendant tried his case in the court below without counsel. After verdict and judgment in favor of the plaintiff, a lawyer was hired, who at once moved for a new trial. This motion was overruled, the trial judge filing reasons for doing so.

The first assignments of error relate to the allowance of an amendment to the declaration on the day of the trial. By the amendment, somewhat general averments in the declaration were made more specific. No new or different cause of action was stated. Defendant did not suggest that he desired the case postponed because of this amendment, and the case was tried upon the merits. The course taken is justified by section 10268, 3 Comp. Laws (5 How. Stat. [2d Ed.] § 12969), and the many cases cited in the note.

A considerable portion of the brief of counsel is taken up with arguments of alleged errors in the admission of testimony. As nearly all this testimony was admitted without objection, and all of it without exceptions being taken, we decline to review its admissibility. Conger v. Hall, 158 Mich. 447 (122 N. W. 1073).

Two questions are presented by the record which require consideration. The first of these is so concisely stated by counsel in the brief that we quote from it:

“The testimony conclusively shows that there was a written contract of sale containing express warranties in this case. The plaintiff’s case was based entirely on the theory that there was an implied warranty of fitness over and above the express warranty, and that there was a breach thereof. There was no breach of this express warranty. There were no swells. The fruit put up in the cans was good fruit, and it was solid pack. This written contract of sale containing the express warranty excludes any implied warranty. There being no breach of the express warranties, we maintain that the defendant was entitled to a directed verdict at the close of the plaintiff’s case. Hall v. Car Co., 168 Mich. 640 [135 N. W. 118]; Monroe v. Hickox, Mull & Hill Co., 144 Mich. 30 [107 N. W. 719]. * * *
“In Cook v. Darling, 160 Mich. 475, at page 481 (125 N. W. 411), many of the goods sold were articles of food that were intended for family consumption. This court, speaking through Stone, J., said:
“ ‘It seems to be a well-settled doctrine in tbis State that where property is bought for a particular purpose, * * * and where articles are bought for consumption, * * * where there is not an express warranty, there is an implied warranty, that the goods are fit for the purpose for which they were bought, and that articles of food are fit for consumption.’ ”

We think the logic of the argument is faulty. To illustrate: Would it be contended that if one made a contract for beef to be packed from the meat of steers four years old, if putrid meat was furnished there would be no defense to a suit for such meat, because the meat was from four-year old steers ? To state such a claim is to answer it. We think counsel has misunderstood the decision in Cook v. Darling, supra, as will appear from the following language in the opinion:

“It is the claim of the defendant that these goods were sold with the express warranty that they were manufactured in compliance with the requirements of the food and drugs act of Congress (Act June 30,1906, chap. 3915, 34 U. S. Stat., p. 768 [U. S. Comp. Stat. Supp. 1909, p; 1187]), and that they were produced with skill and care for the building up and holding of trade, and that there was a breach of this contract on the part of the plaintiff. Whether there was here an express warranty or not, the fact appears that many of the goods were articles of food, and all were intended for family consumption. It seems to be a well-settled doctrine in this State that where property is bought for a particular purpose, and only because of its supposed fitness for that, and where articles are bought for consumption, and the vendor sells them for that express purpose, the consequences of unsoundness are so dangerous to health and life and the failure of consideration is so complete that, where there is not an express warranty, there is an implied warranty that the goods are' fit for the purpose for which they were bought, and that articles of food are fit for consumption. In such cases the vendor is held to a strict accountability. Hoover v. Peters, 18 Mich. 51; Sinclair v. Hathaway, 57 Mich. 60 (23 N. W. 459, 58 Am. Rep. 327); Copas v. Provision Co., 73 Mich. 541 (41 N. W. 690); Blodget v. Safe Co., 76 Mich. 538 (43 N. W. 451); McCray Refrigerator, etc., Co. v. Woods & Zent, 99 Mich. 269 (58 N. W. 320, 41 Am. St. Rep. 599); Little v. G. E. Van Syckle & Co., 115 Mich. 480 (73 N. W. 554); West Michigan Furniture Co. v. Glue Co., 127 Mich. 651 (87 N. W. 92).”

This language is germane in the case, and is decisive against the claim of appellant.

The other question demanding consideration is the claim that plaintiff delayed too long after knowledge came to him of the defect in the apples and is now estopped from claiming damages. We think this contention is met by the evidence that it took time to develop the defect, and that after it was called to the attention of the defendant, he urged plaintiff to have his customers remedy the defect by boiling the fruit in the open. This and all other testimony was submitted to the jury under proper instructions.

We find no reversible error.

Judgment is affirmed.

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


text:
    DE GRAW v. SUPREME COURT, I. O. F.
    Insurance — Mutual Benefit Policy — Fraternal Associations— Contracts- — Conflict of Laws.
    Plaintiff was wife of a member of defendant fraternal insurance association, who, during his lifetime, received a certificate of membership wherein he agreed that amendments might be made from time to time in relation to the constitution and laws of the order fixing the premiums and rate of assessments, and should become a part of the contract. The defendant association was organized under the laws of the- Dominion of Canada. Fifteen years after the issuance of this certificate the defendant accepted a new charter from the parliament of Canada, changing the name of the association and authorizing it to make a charge or assessment against policies issued prior to 1899 and affecting the policy of decedent. The assessment was proportional to a valuation deficiency existing as to this class of policies, which were paying less than the cost of insurance. Held, that the charge or assessment was not against public policy, or contrary to the vested rights of insured.
    Error to St. Clair; Tappan, J.
    Submitted April 28, 1914.
    (Docket No. 149.)
    Decided October 2, 1914.
    Assumpsit by Emma De Graw against the supreme court of the Independent Order of Foresters upon a benefit certificate for a balance claimed to be due. Judgment for defendant. Plaintiff brings error.
    Affirmed.

      P. H. Phillips, for appellant.

      Stevenson, Carpenter, Butzel & Backus (Elliott G. Stevenson and Thomas G. Long, of counsel), for appellee.
   Moore, J.

Suit was brought to recover a balance claimed to be due upon a certificate of insurance. The plaintiff was the wife of William J. De Graw, who died on the 7th day of October, 1913, and who was a member of the defendant. The certificate sued upon was executed September 23, 1898, in Toronto, Canada, following the receipt there of an application executed by the decedent, and was delivered to the decedent on September 23, 1898, in the State of Michigan. In the certificate of insurance appears the following:

“In consideration of the application for membership and of the agreements and statements therein contained; * * * and in consideration also of the provisions of the constitutions and laws enacted by the supreme court of the Independent Order of Foresters, and of any and all amendments thereto adopted from time to time by the said the supreme court, and in consideration also of the declarations and promises contained in the obligation taken by initiates in subordinate courts, * * * and upon the faith and credit of all and each of which agreements, statements, promises, representations, provisions and declarations, and in consideration of the payment by the applicant at the times required, of any and of all the assessments, dues, fees, capitation tax and fines, required by the said constitutions and laws to be paid on account hereof, this benefit certificate is issued, * * * the supreme court of the Independent Order of Foresters agrees to pay and doth by these presents agree to pay.”

At the time of the delivery of said certificate, and as a part thereof, decedent signed an agreement on the back thereof as follows:

“I agree that the constitution and laws enacted by the supreme court, Independent Order of Foresters, as well as any and all amendments thereto which may be adopted from time to time by the said supreme court, shall be a part of this contract — special reference being made by the parties hereto to the following sections of the constitution and laws, namely: Sections * * * 237, 238, 239. * * * ”

The sections, the numbers of which are given, are the sections, of the constitution and laws which prescribe the rates of assessments to be paid by members.

The trial court made the following findings, which are based on the record:

“Fourteenth. At the time the decedent became a member of the society, it was provided by the constitution and laws that the same might be amended, altered, or repealed as.provided in the act of Parliament under which the society was then organized and existing, and also at a regularly convened session of the supreme court of the society, upon the affirmative vote of two-thirds of the votes cast in favor of any proposition submitted in due form.
“Fifteenth. The Parliament of Canada, on May 16, 1913, passed and adopted an act, entitled ‘An act to consolidate and amend the act relating to the supreme court, Independent Order of Foresters, and to change its name to the “Independent Order of Foresters,” ’ copy of which is hereto attached as Exhibit D. Sections 3, 4 and 5 of chapter 100 of the Statutes of 1901, which are referred to in section 11 of said act of Parliament of May 16, 1913, are not material to a determination of the issues raised in this action.
“Sixteenth. The supreme court of the society was, in pursuance of section 12 of the act of Parliament last mentioned, duly and regularly convened in regular session within six months from the date of the passing of the said act, and at such session the following resolution was adopted by the supreme court on August 26, 1913: ‘Moved by the supreme counsellor, seconded by all the members of the joint committee, and resolved, that the Independent Order of Foresters’ Consolidated Act (being 2 & 3 Geo. V. [Canada] chapter 113) be and the same is hereby accepted by the supreme court of the Independent Order of Foresters.’ Which after discussion was put to a yea and nay vote of the members of the supreme court and each and every member of said supreme court voted thereon and said resolution was adopted and said act accepted by the vote of 176 in favor of the same to 28 against the same, of which 28, 23 thereafter changed their votes and voted in favor of the same.
$ $ ‡ $
“Eighteenth. In pursuance of section 3 of the schedule of said act of Parliament, the assets of the society were determined, and it was found that the same, other than the present value of future premiums and dues and accumulated and future liens under the 1908 readjustment, that is, the value of all the property, real and personal, including securities belonging to the society, was $20,559,911. Of this $14,314,250 resulted from the assessments paid by members who joined the society on and after , January 1, 1899, and $6,245,661 resulted from assessments paid by the members who joined the society prior to January 1, 1899.
$ ‡ ‡ ‡
“A valuation deficiency existed as to the members who joined the society prior to January 1, 1899, and such deficiency was found to be $25,555,448; that is, there existed a deficiency of such amount in the assets as compared with the society’s liabilities on account of the benefits to be provided for on behalf of the members who joined prior to January 1, 1899. Or, in other words, there should have been, and if such members had always paid proper and adequate rates there would have been, in hand to the credit of the members who joined prior to January 1, 1899, $31,-801,109, instead of $6,245,661. Such deficiency resulted solely from the inadequate rates theretofore paid by the members who joined the society prior to January 1, 1899.
•}» «j» H* H»
“Twenty-third. In pursuance of section 4 of the schedule of the said act of Parliament, said supreme court at said regular session in 1913 levied or made a charge as an assessment against the mortuary benefit certificate of each member who joined prior to January 1, 1899, of a sum not exceeding its proportion of the valuation deficiency determined as aforesaid.
* * *
“Twenty-fourth. The charge made by said resolution against the certificate of the decedent whose age at his nearest birthday at the time of joining the society was '31 years was $184. The same was not paid by decedent at the time it became due, and upon his death was, together with interest, deducted from the amount otherwise payable to his beneficiary. The decedent had paid all other assessments, dues, and charges and was in good standing at the time of his death.
“Twenty-fifth. A fraternal fund was established by the supreme court in pursuance of section 6 of the schedule of said act of Parliament. Out of this fund there was paid to the plaintiff, as beneficiary of the decedent under said certificate sued upon, the sum of $50.
% ‡ ❖ ❖
“Twenty-seventh. The amount paid by the society to the plaintiff as beneficiary under the certificate of decedent was $865.86. The total deduction made from the face of said certificate was $134.14.”

The court found the deduction was a proper one, and rendered judgment in favor of defendant. The case is brought here by writ of error.

Counsel for appellant claiming, we quote from the brief:

“The questions raised are:
“First. Is the contract made with the plaintiff a Michigan or a Canadian contract?
“Second. Is the action taken by the defendant order in making the assessment against the certificate in question under the act of the Canadian Parliament binding upon members resident within this State?”

Counsel answers the first of these questions that it is a Michigan contract, and the second of them in the negative, and insists a judgment should have been rendered in favor of the plaintiff for the full amount withheld by defendant company, citing as conclusive in favor of the plaintiff the case of Pokrefky v. Firemen’s Fund Ass’n, 121 Mich. 456 (80 N. W. 240); Dolan v. Supreme Council, C. M. B. A., 152 Mich. 266 (116 N. W. 383, 16 L. R. A. [N. S.] 555, 15 Am. & Eng. Ann. Cas. 232), and many other authorities found in the brief. We do not think an answer to the questions above stated is necessarily decisive of the case, nor do we think the cases cited, especially the Michigan cases, are controlling in favor of the plaintiff, for an examination of them will show them to be distinguishable from the instant case.

In Pokrefky v. Firemen’s Fund Ass’n, supra, it was held the trustees attempted to exercise a power not conferred upon them. The case was here again (131 Mich. 38 [90 N. W. 689, 96 N. W. 1057]), when it was held that whether or not the member of the association had assented to the change was a question for the jury.

In Dolan v. Supreme Council, C. M. B. A., supra, it was held that the contract before the court was not against public policy, and it was also held that the new by-law did not apply to the existing contract.

In none of these cases is it held that a member might not agree in advance- that the charter might be amended or by-laws be passed, that would have the effect of diminishing the amount of insurance. Though the case is not on all fours, there is an interesting discussion of the principles involved in Bissell v. Heath, 98 Mich. 472 (57 N. W. 585).

The language used by Justice Ostrander in Wineland v. Maccabees of the World, 148 Mich. 608 (112 N. W. 696), is pertinent here:

“In so far as arguments have been addressed to the point that the parties to a mutual benefit certificate may expressly agree to be bound by after-enacted by-laws, they are answered in favor of the validity of such contracts by a previous decision of this court (Borgards v. Insurance Co., 79 Mich. 440 [44 N. W. 856]), and, we think, by the weight of authority (Ross v. Modern Brotherhood of America, 120 Iowa, 692 [95 N. W. 207]; Supreme Commandery K. of G. R. v. Ainsworth, 71 Ala. 436 [46 Am. Rep. 332]; Beach v. Supreme Tent K. of M., 177 N. Y. 100, 105 [69 N. E. 281]; 1 Bacon on Benefit Societies and Life Insurance [3d Ed.], §§ 185-188). See collection of cases in note to Supreme Council Am. L. of H. v. Champe [127 Fed. 541], 63 C. C. A. 282. Such an agreement being found — and there can be no doubt that it was made in the present case — the effect of the particular by-law upon the particular, member depends upon whether it was one which the association might lawfully make, whether it should be applied retroactively, whether it disturbs vested rights, whether it is reasonable. * * *
“Whether the changes with respect to assessments made in 1904, against which he protested, are within these powers remains to be considered. We have no doubt that it was lawful, and no violation of contract rights, for defendant to increase the number of assessments to meet the demands arising from the death of members. There seems to be no good reason why fewer assessments, at a greater rate, should not be levied, so long as the increase in rates is proportional; young and old members, alike, contributing. .Whether such action be a mere detail in management aimed at procuring for distribution the same sum of money in a different way, or intended to actually increase the contributions over present necessities for distribution and to accumulate a fund, it may be, so long as it is proportional and reasonable, supported, as against a protesting member, by his agreement in his application to conform to and be governed by laws to be from time to time made by the representative governing body of the association. While courts are not agreed upon this proposition, we are inclined to the views expressed in Fullenwider v. Supreme Council R. L., 180 Ill. 621 (54 N. E. 485, 72 Am. St. Rep. 239); Messer v. Grand Lodge A. O. U. W., 180 Mass. 321 (62 N. E. 252); Reynolds v. Supreme Council R. A., 192 Mass. 150 (78 N. E. 129, 7 L. R. A. [N. S.] 1154, 7 Am. & Eng. Ann. Cas. 776); Conner v. Supreme Commandery Golden Cross [117 Tenn. 549], 97 S. W. 306. We agree with the court below that the increased assessments are not, in view of the conditions disclosed, unreasonable. Whether they evidence a departure from the statute purpose and plan of existence of such association is a question not presented.”

It is clear that no one could tell to a certainty what the assessments in the future should be to make it possible for the defendant to pay the beneficiaries of its members definite sums of money. It is equally clear if it was selling insurance for less than it cost it would be only a question of time when it must go out of business. The record shows that it did insure those members joining prior to 1899, at a rate less than the cost of insurance. We do not think it was against public policy or an infringement upon vested rights for the insured to agree that such changes might be made in the laws of the association during his membership, as would enable it to carry out its insurance agreements.

The following cases are instructive and in point: Fry v. Insurance Co. (C. C.), 31 Fed. 197; Canada Southern R. Co. v. Gebhard, 109 U. S. 527 (3 Sup. Ct. 363).

Judgment is affirmed. . o

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


author: Steere, J.

text:
    WAIDELICH v. ANDROS.
    1. Negligence — Landlord and Tenant.
    Idl an action for negligent use of water and permitting the apparatus in a toilet room to overflow, injuring the goods of a tenant occupying the lower part of the same building with defendant, who leased the second floor, evidence tending to show improper use and carelessness in depositing foreign material in the closet, held, to raise an issue for the jury, and held, that the court erred in failing to consider the duty of defendant to employ care in the use of the apparatus which had overflowed at other times within his knowledge.
    2. Same — Water Supply.
    While defendant was not an insurer, a high degree of care rested upon the tenants having control of the water supply in the upper part of a store building to employ active and constant precaution against the danger of an overflow.
    3. Same — Evidence—Tenant’s Duty as to Water Supply.
    To make a prima facie case of defendant’s negligence, it was incumbent upon plaintiff to prove an injury from an unusual occurrence of such a nature as to indicate defendant’s negligence and such facts in relation to the occurrence indicating negligence as were reasonably in his power to establish.
    4. Same — Res Ipsa Loquitur.
    Plaintiff, whose declaration charged other negligence besides depositing foreign or bulky material in the bowl, was not deprived of his right to insist on the other negligent conduct so charged, by reason of attempting unsuccessfully to show the exact cause. Nor did he lose his right to base the claim of negligence on the presumption to which the accident gave rise of negligent conduct.
    Error to Ingham; Collingwood, J.
    Submitted April 29, 1914.
    (Docket No. 178.)
    Decided October 2, 1914.
    Case by John F. Waidelich against Alex Andros for negligently flooding plaintiff’s premises. Judgment for defendant on a directed verdict. Plaintiff brings error.
    Reversed.

      Cummins, Nichols & Rhoads, for appellant.

      Jason E. Nichols, for appellee.
   Steere, J.

This writ of error brings under review the propriety of an order directing a verdict for defendant in an action tried before a jury in the circuit court of Ingham county, wherein plaintiff sought to recover for injury done to his stock of merchandise and fixtures by water escaping from plumbing located in defendant’s apartments, on the floor above plaintiff’s store.

Plaintiff and defendant were both tenants in a two-story, brick building designated as 203 Washington Avenue South, in the city of Lansing. The building was on the east side of the avenue, upon which it had a frontage of 21 feet, extending back that width 80 feet. It was equipped with modern conveniences, and was comparatively new, having been built four years previous by its owner, V. A. Lott, from whom these parties rented the separate stories independent of each other. Plaintiff rented and used the lower floor and basement for a shoe store, having a written lease. Defendant, who was in business elsewhere manufacturing candy, rented the second floor by an oral lease, and occupied the same as quarters for his employees. The ground entrances to the two stories were by separate doors and entirely distinct. Each tenant had exclusive access to, control and use of, his portion of the building; the entrance to the second story being by an inclosed stairway which began at a door upon which there was a lock, opening on the avenue and rising along the north wall of the building to a hall on the second floor. The rooms on that floor opened into this hall, at the back or east end of which was located a water-closet, partitioned off, for the exclusive use of occupants of that floor.

On the night of March 26, 1913, and near the approach of morning, a policeman traversing his beat discovered water running out upon the sidewalk from under the front door of plaintiff’s store, and at once aroused defendant’s employees, who were sleeping above. It was found that water was overflowing, from their closet and making its way into plaintiff’s .store below, where it could be heard dripping. They shut off the closet, and the policeman at once notified plaintiff at his residence, whence he immediately repaired to his store, which he found flooded, its contents being soaked and seriously damaged by water dripping through the ceiling from above. He at once cared for his damaged property as well as could be done.

Negligence of defendant is variously charged in three separate counts of plaintiff’s declaration. Inattention, neglect, carelessness, and disregard of duty are charged, in failing to keep the closet in repair and in a condition reasonably fit and safe for use without injury to others; and active, negligent conduct and misuse of the closet, by putting newspaper and other improper things in it, which caused it to get out of order and clogged, and to overflow, uncared for until it invaded plaintiff’s store and did the damage complained of. It is also alleged that defendant’s employees, who were quartered there and left in charge, were ignorant and uninstructed as to the proper care and use of said closet, and were foreigners who did not talk the English language, for which reason they could not be made to understand by those capable of instructing them, as a result of which said closet was neglected and misused.

The trial court held that there was no evidence of probative force tending to establish the use of newspaper or other obstructing matter, as charged, and that no prima facie case of negligence was proven, amongst other things saying:

“Now, the people who live in the upper stories of houses and use the plumbing are not insurers of the goods of the people below. If they are negligent, if they do something or omit to do something which they ought to have done which constitutes negligence, and by their negligence the people below are injured in their person or property, then the people who are injured may recover damages from the person whose negligence injured them. * * * The evidence in this case shows — I might almost say uncontradicted evidence shows — that the water flowed into the tank because the copper float was detached from the rod, the rod dropping down in the tank and opening the valve, the water than flowed into the tank, and, the outlet being insufficient, it overflowed the tank and came onto the floor. The only evidence to the contrary was that which was put in which tended to show that there was newspapers scattered about the closet; that there was newspaper on the edge of the bowl; that there was no evidence that the tank had overflowed by marks of water on the outside of the tank.
“Now, it has been shown that the overflowing of the tank was the overflowing of the copper tank inside of the wooden tank; that it never rose to the top of the wooden tank, and therefore never came over the edge of the tank, but flowed down between the copper tank and the wooden tank somewhere onto the floor. Mr. Andros cannot be held in damages unless he was negligent. Now assuming — and the plaintiff is entitled to the benefit of presumption, assuming the disputed point that Mr. Andros was obligated to take care of this closet — that Mr. Lott had passed it over to him and he must absolutely take care of it, there must be some evidence brought forward to show where Mr. Andros was negligent. * * * Now, I am not going to ask you to guess that newspaper was used, and that that newspaper when it was used stopped that closet.”

At the conclusion of the charge the jury was directed to, and did, return a "verdict of no cause of action.”

The question here is not whether the court’s conclusions as to how the accident occurred are sustained by the evidence, but whether plaintiff’s testimony, considered in its most favorable light, raised an issue of fact under the allegations of negligence in his declaration. The declaration charges more than an improper use of newspaper. The first count charges a duty to care for and keep the closet in repair, and a failure of that duty in permitting it to get out of repair, and negligently allowing it to continue so and to overflow, thereby causing the damage complained of. That it did get out of order, was broken, and overflowed and damage resulted is undisputed. Plumbers and others who examined it the next morning found the float and ball cock, which shut off the water in .the tank after use of the closet, were broken off. This allowed the intake to flow continuously, and, if the pipe for carrying off this flow was clogged or not of sufficient capacity, the water which otherwise would pass harmlessly into the sewer must overflow upon the floor, as it did.

Defendant claimed and introduced testimony tending to show that the breaking of the rod which held the float in the tank frequently occurred without negligence on the part of any one, and that the overflow or discharge pipe in the closet did not have sufficient capacity to carry away the water supplied by the intake pipe when constantly flowing, that the overflow was from the tank, and not from the bowl, and urged that neither the breaking of the float arm nor the resulting overflow of the tank implied negligence on the part of those in charge of and using the closet. The court evidently adopted this theory, and charged the jury, in substance, that no inference of negligence could be drawn from the accident or the facts shown in that connection, overlooking, we think, the duty of diligent care which applies to such conditions and certain of plaintiff’s testimony in that connection.

Defendant had used this closet over three years, and had ample opportunity to learn of any inherent defects. It had overflowed before, and complaints had been made to him. Plaintiff testified that when he endeavored to caution an employee about using newspaper in it he only replied that he could not understand, and said, “Go see Andros;” that when plaintiff saw and complained to Andros on several occasions he replied, “Go see Lott; Lott no fix.” This involved a preliminary issue of fact in the case, which, owing to the turn the case took, was not reached. Defendant claimed that, under his lease from Lott, the owner of the building, it was the duty of the latter to keep the plumbing in repair, and defendant was under no responsibility in that respect. Lott testified that by the terms of the lease defendant took full possession of his part of the building, equipped with new plumbing in good condition, agreeing to pay the water tax, care for the plumbing, and keep the same in good condition. The questions presented here, however, rest on the assumption that defendant had exclusive possession and control of his floor, including the water-closet in it, which it was his duty to care for and keep in repair. The duty of vigilance and degree of care imposed is relatively contingent on the nature and known risks of the agency in hand.

“There is imposed upon a person who collects water in an artificial reservoir an obligation to use care ‘proportioned to the danger of injury from the escape.’ ” Scott v. Longwell, 139 Mich. 12 (102 N. W. 230, 5 Am. & Eng. Ann. Cas. 679).

While not insurers, a high degree of care, proportionate to the known danger, rests upon those using and in control of an artificial water supply under pressure in the upper stories of a building. The legal maxim which requires one to so use that which is his as not to injure others is particularly pertinent here. Defendant was supplied with and using an artificial, pent-up WRter course, elevated and susceptible of a swift flow, which he knew, or ought to have known, would, if released and uncontrolled, in a comparatively short time inflict serious damage to the building and its contents, and particularly to that directly beneath. His duty to guard against this and take all reasonable precautions to prevent it was active and constant. Plaintiff had no access to the floor where this closet was located, and was excluded from all knowledge of how it was cared for and used, except as res ipsa loquitur to him by flooding his establishment. The exact knowledge of what was done and how it happened rested, in the first instance, exclusively with defendant and his agents. In such a case the probative force of environment and circumstances must not be disregarded. The evidence of defendant’s negligence need not be direct and positive.

To make a prima facie case of the defendant’s negligence it was incumbent upon plaintiff to prove an injury from an unusual occurrence, of such a nature as to indicate defendant’s negligence, and such facts in respect to the occurrence indicating negligence as were reasonably in his power. The rule is thus well stated in Rosenfield v. Arrol, 44 Minn. 395 (46 N. W. 768, 20 Am. St. Rep. 584):

“Negligence, which is the want or absence of ordinary care, is the gist of the action, and the burden was upon the plaintiffs to prove facts from which it could fairly be inferred that the defendant’s negligence was the proximate cause of the injury. The evidence need not be direct and positive. The fact of negligence in any given case is susceptible of proof by evidence of circumstances bearing more or less directly upon the fact. The plaintiffs were not bound to prove more than enough to raise a fair presumption of negligence on the part of the defendant, and of resulting injury to themselves. Having done this, they were entitled to recover, unless the defendant produced evidence sufficient to rebut this presumption. 1 Shear. & E. Neg. §§ 57, 58, and cases cited.”

Plaintiff on his part introduced testimony tending to prove that defendant was in exclusive control and possession of the second floor and the water-closet there located, which was for the exclusive use of those occupying that floor; that defendant was responsible for the proper care and use of this closet and the water fixtures, which were new and in good condition when he took possession; that defendant’s employees in charge and use of the closet were apparently ignorant of how to properly use and care for the same; that it had overflowed and caused trouble before, of which they and defendant, when appealed to, seemed indifferent and denied responsibility; that on the night in question part of the mechanism which automatically shut off the water was out of order and broken, and the occupants of that floor took no precautions in regard to it, though conditions indicated the water had been flowing for hours during that night. It was shown that but two weeks before this the closet did not work properly, and a plumber named Toolan was called to attend to it. He testified that he found a rag under the flush valve, and on its removal the closet worked all right, the pipes and tank being in good condition. Asked if the overflow pipe in the tank would take care of the overflow of the tank, he answered: “Sure; that is what they are meant for.” He also testified that when he examined the closet after the accident, paper on the bowl indicated that the bowl itself had been overflowing.

It is urged in behalf of defendant that plaintiff has specifically charged and tried his case on “the theory that heavy, bulky paper and other solid matter was carelessly used by defendant or his tenants in the bowl of the closet,” causing the same to clog and overflow, which he has failed to prove; that, having pointed out what he claims was the exact cause of the accident, and unsuccessfully attempted to prove it, he is not at liberty to advance other theories or other claims of negligence. °

The allegations in plaintiffs declaration are not limited to this single act of negligence. In Cassady v. Railway Co., 184 Mass. 156 (68 N. E. 10, 63 L. R. A. 285), it is said:

“The real cause being shown, there is no occasion to inquire as to what the presumption would have been if the cause had not been shown. But if at the close of the evidence the cause does not clearly appear, or if there is a dispute as to what it is, then it is open to the plaintiff to argue upon the whole evidence, and the jury are justified in relying upon a presumption, unless they are satisfied that the cause has been shown to be inconsistent with it. An unsuccessful attempt to prove by direct evidence the precise cause does not estop the plaintiff from relying upon the presumptions applicable to it.”

We think there was competent circumstantial evidence for the jury, even on the question of the negligent use of newspapers and other improper material. Witnesses who examined the closet the next morning testified that newspapers were lying on the floor around the bowl, that there were pieces of newspaper on the edge and sides of the bowl and there was no toilet paper, the place provided for it being empty.

We conclude this question, and others before referred to, were issues of fact for the jury to pass upon under proper instructions.

The judgment is reversed, and a new trial granted.

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