author: Steere, J.

text:
    HUGGETT v. ERB.
    1. Railroads — Negligence—Trespassers—Personal Injuries.
    Where the evidence, in an action for personal injuries to an infant under three years of age, tended to show that if either engineer or fireman had maintained a lookout along the track they must have seen plaintiff and another child on the track and discovered their size and helpless position in ample time to have stopped the train, and where the engine was running through a populous section of a city,' across numerous street intersections and along a portion of the track which the public had used extensively as a way and traversed continually, and there was evidence of an eyewitness that those in charge of the engine were not looking ahead along the track, the trial court erred in directing a verdict for the defendant, on the ground that no actionable negligence was established.
    2. Same — Infants.
    While children non sui juris who invade private property are technically trespassers, they are not wilful trespassers, knowingly doing a wrong or incurring risk, in a sense which would legally charge them with negligence or personal responsibility as in the case of older persons who are not under disability.
    3. Same — Station and Grounds.,
    Although the infant was injured on defendant’s station grounds, and defendant had posted warning signs forbid- ■ ding trespassing, where the public, nevertheless, made frequent use of the right of way to pass between the street and defendant’s station, and the child was too young to comprehend the warning or the danger, the employees of the defendant railroad corporation were required to exercise care and prudence to prevent an injury to the child on a clear stretch of track away from the confusion of yard work and freight cars, at a point where the public were accustomed to frequent the tracks as a way of travel.

      4. Same.
    Accordingly, the questions as to the extent to which defendant’s track was traveled at the place of the accident, defendant’s knowledge of the use, and the degree of care required in operating trains in that locality, should have been left to the jury.
    Error to Gratiot; Searl, J.
    Submitted May 1, 1914.
    (Docket No. 113.)
    Decided October 2, 1914.
    Case by Eva Huggett, by next friend, against Newman Erb and others, receivers of the Pere Marquette Railroad Company, for personal injuries. Judgment for defendants on a directed verdict. Plaintiff brings error.
    Reversed.

      Kress & Dunham and Chapman, McNamara & Matthews, for appellant.

      Bills, Parker & Shields (John- T. Matthews, of counsel), for appellees.

       The question of the care required of railroad companies to prevent injuring small children upon the track is treated in a note in 25 R. R. A. 784.
      As to the duty to keep lookout for infant trespassers on railroad tracks, see note in 8 R. R. A. (N. S.). 1079.

   Steere, J.

Plaintiff, a child two years and eight months old, was run over and seriously injured by one of the Pere Marquette Railroad Company’s westbound trains as it was leaving the city of Alma at 1:40 in the afternoon of May 17, 1912. This action is brought by her father, as next friend, against the receivers, of said railroad, to recover for the injuries she sustained.

The declaration originally filed alleged as actionable negligence a failure of duty to give proper warning of the approach of the train, to keep it under control, to appreciate the danger, to keep a sharp lookout ahead, to use every possible means to stop the train before striking the'child after she appeared upon the track, etc., whereby, and by reason of the train being run in “a wilful, wanton, reckless, malicious, cruel, inhuman, and grossly negligent manner, (it) struck plaintiff, who was then there upon said tracks of defendant without any fault or negligence on her part.” During the progress of the trial, the declaration was amended, against objection and by leave of the court, by adding an allegation that, for more than 10 years prior to the time of said accident, that portion of the track where it occurred was customarily and freely used by the public as a thoroughfare; that it was the custom of residents of Alma, and other persons going to and from the passenger station of defendant and other places to which the track afforded most convenient travel, to pass on foot along defendant’s main track at that point, of which fact defendant, its agents and employees, had full knowledge, by reason whereof it was its and their duty to anticipate the presence of persons upon that part of the track, and to particularly keep a vigilant watch, exercise special care, give due warning, etc., with reference to such custom and consequent increased danger, which duty defendant utterly neglected.

At the conclusion nf plaintiff’s testimony the court directed a verdict for defendant on the ground that the child was a trespasser upon the track to whom defendant owed no duty, except not to run over her, if possible to avoid it after discovering her presence; that trainmen owed no special duty to keep watch for trespassing children on the track more than for adults; and, it being conceded that the trainmen did not discover plaintiff upon the track or have any knowledge of her presence there until after the áccident, no actionable negligence was shown.

The accident occurred about 750 feet west of the station and water tank at which the train had stopped, in a resident portion of the city where the track crosses the north part of a block lying between two north and south avenues named Park and Lincoln; Park bounding. the east side of the block, nearest to the station, and Lincoln the west. These two north and south avenues are crossed by Center street, which, running east and west, bounds the block on the north. Going west from the station, the track bears somewhat northerly at an angle with the lines of lots and streets of the' city until it enters the north half of said block between Park and Lincoln avenues, where it swings by an increasing curve more to the north and leaves the block near its northwest corner passing to Center street, thence crossing said street and Lincoln avenue diagonally at their intersection and entering the block lying directly to the northwest. The tracks of the Ann Arbor Railroad Company are upon the same right of way and parallel defendant’s tracks on the north, with a space of 9 or 10 feet between the two from the station to where plaintiff was struck, and beyond. The track in that locality is nearly level, with a slightly rising grade west of the station, from which there is a plain and unobstructed view along the track past where plaintiff was injured, to a station post located 87Y2 feet easterly from Center street towards the depot.

On the right of way east of Center street, and near where plaintiff was injured, stood a sign erected by defendant many years previously, upon which was painted in large letters “Railroad grounds — trespassing strictly forbiddenbut it was conclusively shown that it was and had been for many years an uninterrupted custom of the public to freely and frequently travel back and forth along the track from Center street and beyond, to and from defendant’s station and other points. Witnesses who had been in the habit of so using the track, and persons living in the vicinity, testified that it was customarily and habitually traveled, by those having occasion, as freely as a public thoroughfare; that persons could be seen traveling the track there almost every hour in the day; that, any time one happened to look, some person or persons could be seen on the track going one way or the other; that it was used as a highway generally by the majority of persons making all trains; .that both adults and children used the track each day as a way of travel, and it would be safe to say 30 or 35 people use it daily. George Cowles, who had been in the employ of defendant as brakeman and conductor several years, and was intimately acquainted with the road at that point, testified that the people of Alma used the track “as much .as a public thoroughfare,” and they always had, since he was familiar with it; that both adults and children were walking the track daily; that he noticed this when he was running trains as conductor and working on them as brakeman.

When injured, plaintiff was on defendant’s main track between the two avenues mentioned, near the middle of the block, east and west, where the track curves northerly and about 160 feet southeasterly along the track from Center street. The day was clear, and when on the track she was in plain view from the water tank and station, and from any point along the track between. The train had taken water at the tank opposite the west end of the passenger station, and, starting from there, had reached the speed of eight to ten miles an hour where the accident occurred.

Plaintiff’s family lived on Maple avenue, two blocks west of Lincoln avenue and half a block south of Center street. Before the accident she was last seen at home not long after the family had finished their noonday meal, to which they sat down about 12:30 p. m. She was then playing in the yard with a neighbor’s little boy, nearly a year older than she. Shortly thereafter her mother found that the children had disappeared, and the mother of the boy discovered their absence at about the same time. The two mothers were searching for their children whén the little girl was injured.

The most graphic description of the accident is given by Mrs. Lois Powell, who lived on the south side of Center street, west of the track, and was hanging out clothes in the yard south of her house at the time. Her attention was called to the approaching train as it left the station, and when it was just west of Park avenue she noticed the two little children alone on the track. She immediately hurried towards them, calling to them to “get off the track,” and waving a cloth at the fireman, who was on the side next to her and looking south out of the side cab window, but apparently did not notice her or them. The train did not slacken, and before she reached the children it ran over the little girl, cutting and bruising her badly, crushing an arm so that it was found necessary to amputate it as soon as medical attendance was procured. The little boy moved off the track in time and was not injured. Mrs. Powell testified that when she noticed the children upon the track the locomotive was within from 25 to 50 feet of them; about 50 feet being her last judgment.

In support of the directed verdict for defendant, counsel urge that plaintiff was a trespasser upon the track, and defendant owed her no duty except not to injure her after she was discovered; that there is not only a total absence of proof that any of the trainmen did discover her at all but it is shown they did not, and evidence is wanting to prove that it would have been possible to stop the train and avert the accident after the time she is shown to have been on the track. Defendant’s counsel say in their brief:

“They fail to show that the child was upon the track a sufficient length of time or distance ahead of the train, so that it would have been possible to have stopped the train in time to avert the accident. As we have pointed out in our statement of fact, 45 feet is the greatest distance shown by the testimony, or 50 feet at the outside, that the train was east of the child when she appeared to Mrs. Powell upon the track.”

Counsel also inadvertently say:

“This is the only evidence in the record showing that the children were, in a perilous position at any time before the engine struck the plaintiff.”

Mrs. Powell is not the only witness upon that subject. Her daughter Huida .had just previously stepped to the door for a moment to scrape some victuals off from a dish, when she noticed the train at the station and the two children on the Park avenue crossing. Two or three minutes later she heard her mother scream, and, going to the door, saw the train passing Center street after running over the little girl. A Mrs. Brown, who lived at the corner of Park avenue and Center street, saw the two children, just before the accident, on the track about 100 feet west of Park avenue crossing, playing along the track and moving west. She testifies:

“When I saw them on the track I knew the train was back here at the station. * * * There was no one in my house with me but my little baby two years old. When I saw the children on the track I went over to Mrs. Whiting’s to leave my child there so I could go and get the children off the track. But I did not leave my child there, because she was not at home. The children on the Pere Marquette track were playing, gradually going down the track west. When I found Mrs. Whiting was not at home, I went back home. I was excited. I did not know what I might do, but I went in the house. I heard the train. The train went through, and I knew I could do nothing.”

Plaintiff’s brother Orla, under 13 years of age, and a companion named Jay Glover, 10 years old, saw the children on the track when the approaching train was east of Park avenue. Orla had been directed by his mother to look for his sister at the time her absence from home was discovered, and Jay accompanied him. The two boys had gone east on Center street, drawing a little wagon with them, to the corner of Center street and Park avenue, when they saw the train coming, and about the same time, on looking across the block to the railroad, between two houses, they discovered the two children going westward on the track in the path of the approaching train, which Orla testified was then east of Park avenue. He ran towards his sister, Jay following him, but was not in time to rescue her. Jay testified that when they saw the children the train “was right back of us coming from the depot. It was back of Park avenue towards the depot.”

The block in which the accident occurred is 332 feet wide, east and west. She was struck just west of the middle of the block. Park avenue is 66 feet wide. The water tank from which the train started was 752 feet distant. There is abundant evidence tending to show that this small child, barely more than an infant, was upon the track and in plain sight of those upon the approaching engine much further away than the distance required to stop the train. At its maximum speed in approaching her, 8 or 10 miles an hour, it could have been stopped in from 50 to 150 feet.

Cowles, the former brakeman and conductor, who was acquainted with the particular engine used that day, and had often ridden in the engine when head brakeman, testified that from the water tank going west, on either the engineer’s or fireman’s side, there was an unobstructed and plain view as far as the station post and pretty close to Center street; that he was familiar with the engine, number of cars, weight, manner of control of the train, etc., and, when going from 8 to 10 miles an hour, it could have been stopped on that track and grade in from 50 to 75 feet. The fireman of the engine stated it could be stopped in from 100 to 150 feet.

Assuming the testimony in behalf of plaintiff to be true, as we must in passing upon a directed verdict for defendant, it tends to show that had either the engineer or fireman on that train looked ahead along the track at any time while they were covering the distance from the station to the place of accident, until so close that the front of the engine obscured their .view, they must have seen these little children upon the track unattended, and discovered their size and helpless condition in ample time to have checked or stopped the train and avoided the accident. So far as there is testimony on the subject, neither kept watch ahead of this train, which they were running through a populous portion of Alma, where there were frequent crossings, and where it was so customary for the public to travel along that portion of the track that persons could be seen upon it almost any hour of the day. The fireman testified that he was not watching after the train started; that as it started he pulled the bell and looked ahead to see that the track was clear, and then busied himself putting in a fire, after which he got upon his seat on the left side of the cab, and just as he did so he saw a little boy on the side of the track right close to the engine, but did not learn they had run over a child until they reached the station beyond. The engineer was not a witness, and the only direct evidence as to his' vigilance is by Jay Glover, who testified that, while running towards the children on the track, he looked up at the cab of the engine as it was close upon them and saw the engineer with his back towards witness, looking out across the river on the left side of the tracks.

It is contended in behalf of plaintiff that she was not a trespasser upon the track, both because the public generally, including children, had constantly used this track as a thoroughfare for many years, to the knowledge and with the acquiescence of defendant, and this child was of such tender age as to be incapable of becoming a trespasser.

It is said in 33 Cyc. p. 756: “A child, although non sui juris, may become a trespasser” on a railroad track, citing, amongst other cases, Trudell v. Railway Co., 126 Mich. 73 (85 N. W. 250, 53 L. R. A. 271). In that case the court held that a boy seven years of age, playing upon the track, was a trespasser as a matter of law, and that the engineer was justified in believing he would step off the track in time, saying:

“There is no reason in this case for , saying that he did not apprehend the danger, nor that he was of immature years, and must therefore be excused from exercising any care.”

Thus evidently deeming it important to point out that he was not non sui juris; i. e., an infant “not of sufficient age and discretion to care for his own safety and render it prudent for him to go alone.”

While it has been squarely held in some jurisdictions that such children, however young, are nevertheless trespassers, and in others that they are not, the tendency of our decisions is to recognize a distinction in their favor in certain particulars. Marquette, etc., R. Co. v. Marcott, 41 Mich. 433 (2 N. W. 795); Id., 47 Mich. 1 (10 N. W. 53); Keyser v. Railway Co., 56 Mich. 559 (23 N. W. 311, 56 Am. Rep. 405); Battishill v. Humphreys, 64 Mich. 494 (31 N. W. 894). In the latter case the court said of an infant three years old:

“A child of such & tender age as to be incapable of negligence cannot well become a trespasser.”

In Keyser v. Railway Co., supra, it is said:

“I do not think that an infant boy, only two years and six months old, walking or lying down upon the track of a railroad, becomes a trespasser to the extent of subjecting himself, without the right of redress, to the reckless or negligent acts or omission of the defendant. * * * Under all the circumstances stated in the record, I do not think that such a lookout as was called for by the appearance of the child upon the track was observed by the trainmen, nor that the plaintiff is ‘compelled to submit’ to consequences so serious as those appearing in this case, because he strayed upon defendant’s track, when the injury could have apparently been avoided by proper care and caution exercised by defendant’s engineer.”

Conceding that children non sui juris, invading private property, are technical but unconscious trespassers, as would be a wandering animal, the view is sustained by these cases and abundance of other authority that they are not wilful trespassers, knowingly doing a wrong or incurring a risk in a sense which could legally charge them with negligence or personal responsibility, as in the case of older persons not under such disability.

It is urged in behalf of defendant that this accident occurred on its station grounds, which it was not obliged to fence, and where it posted a notice forbidding trespassing, and that:

“Where a railroad company has posted warning notices along its yard limits, notifying all persons to keep off the tracks, it is not liable to a child for injuries which it receives by going on a track filled with cars liable to be moved at any time, on mere proof that children are in the habit of playing on or near the tracks.” Katzinski v. Railway Co., 141 Mich. 75 (104 N. W. 409).

This quotation is from the syllabus of the case, the facts of which are meagerly stated. The child was 6% years old, and was playing at or near a place whére there were four tracks filled with cars liable to be moved at any time. She was injured while a crew was coupling cars, without any notice or knowledge that she was on the track. In disposing of the case, the court said the fact, if shown, that children were in the habit of playing on or near the tracks would not tend to fasten any liability on-the defendant, under the circumstances of that case. A somewhat similar case held, with little discussion, to be ruled by the last mentioned, is Seeley v. Railway Co., 157 Mich. 688 (122 N. W. 214), in which a boy eight years old, playing with companions beside a track where a crew was switching, ran for a ride and climbed upon the brake beam of a flat car, grasping the hand holds on the end. In attempting to jump off, he fell under the wheels and was killed. We see nothing in those cases controlling here. They were decided under the special facts shown, and the circumstances disclosed are very different from those under consideration now. In both of those cases the children were of sufficient age, so that the question of their contributory negligence was open. They were supposed to possess sufficient discretion to take care of themselves, and the trainmen were not required to neglect their ordinary duties to watch them, or bound to give special warning before discovering them in actual situations of danger. The distinguishing and distinctive features here are that, while yet nominally in the station grounds, the accident occurred on a clear stretch of track, away from any confusion of yard work or accumulations of cars, after the crew had settled down to its run, 750 feet from the station house, had crossed two streets, and was departing through a populous portion of the city, not crossing its streets at right angles and at a point where the public generally was accustomed to extensively use the tracks as a way of travel, and the injured child was of such tender years as to be incapable of appreciating the presence of danger or, apparently, even understanding what was meant when called to “get off the track.”

If the accident had occurred at a crossing, or there was testimony tending to show that the child was seen from the engine in probable time to stop or check the train so as to avoid injuring her, it must be conceded that the case should have been submitted to the jury. Plaintiff’s testimony tends to show that, had the engineer or fireman looked out ahead of the train, they must have seen her. It was their general duty to run the train with reasonable care and watchfulness. It is neither just, nor sound in principle, to say that, by avoiding seeing her through neglect of duty, they can protect defendant from liability under the broad gen- ' eral rule that it owes no duty to trespassing children until they are discovered in a place of danger, a rule upon which the authorities are not in harmony, and which Judge Thompson in his work on Negligence, § 1809, designates as “cruel and draconic.”

There is a marked difference between the announcement of a general rule and its application to the facts of a particular case, for often, with a change of circumstances, a general rule must undergo modification. Even conceding that, up to the point of discovery, the duty to all trespassers, whether young or old, is the same, back of that lies the question of duty to have seen, which may in law carry with it the responsibility, or civil law imputatio, of having seen.

As a general measure of safety for all, it is the duty of those operating trains to be watchful and guard against possible accidents of all kinds, without special reference to any particular persons or things, to observe environments, watch where they are going, and maintain such a lookout at all times as is reasonably required by the circumstances, “and which should be more careful where there is risk of access to the track than where it is less likely.” Marcott v. Railway Co., 47 Mich. 1 (10 N. W. 53).

This accident occurred in a city, between two closely adjacent streets, at a point where citizens of all classes were accustomed and suffered to use the track as a thoroughfare, and where defendant’s trainmen had reason to know and expect persons might be walking along the track at any time. In 23 Am. & Eng. Enc. Law (2d Ed.), p. 754, these general rules, as applied to such conditions, are deduced from many authorities there cited, including Marcott v. Railway Co. and Battishill v. Humphreys, supra, from oür own court:

“Where there is reason to apprehend that the track may not be clear, as in the case of tracks running through cities or' other populous districts where persons are in the habit of crossing or walking on the tracks, the persons operating the train cannot act on the presumption that the track is clear, and so' fail to maintain a proper lookout, without making the company responsible for the consequences. Especially is this true, according to some authorities, where the trespassers are children, or where there is such a custom established on the part of the public of going upon the tracks, as to amount to a license.- In such cases a failure to see is not alone sufficient to give rise to liability, but there must be a failure to see after the exércise of ordinary care.”

Vide, .also, 2 Thompson on Negligence, and vol. 8 (White’s Supp.),. §1726, and cases cited. In volume 8, § 1725, relative to the duty of care as to persons using a railway track as a footpath,, amongst other things it is said:

“And for the purpose of this rule it makes no difference that the. railroad company has posted signboards warning people not to trespass on the right of way.”

In Montgomery v. Railway Co., 103 Mich. 46 (61 N. W. 543, 29 L. R. A. 287), this court quoted with approval the following from Hanlon v. Railway Co., 104 Mo. 389 (16 S. W. 233):

“This rule has, however, a qualification which is founded upon principles of humanity and is universally recognized. This qualification enjoins upon the railroad company the duty of using all reasonable efforts to avoid injury to one who has- negligently placed himself in a position of danger, if the peril is known, or, under certain circumstances, by reasonable care might have been known.”

Plaintiff’s evidence here clearly tends to shqw that her peril might have been known to the trainmen, in time to avoid the injury, had they but exercised the reasonable care, in the operation of their train, which their duties under the circumstances demanded.

In Green v. Railway Co., 110 Mich. 648 (68 N. W. 988), a child about two years of age wandered from the premises of its grandmother to defendant’s track, where it was killed by a freight, train, which was being backed in the process of switching. The accident did not occur at or near any highway crossing, nor in a city or village, but upon or near a private way which crossed defendant’s track, and which was daily used to the knowledge of defendant and its employees. So far as shown, the only duty of the railroad arose from knowledge of and acquiescence in such use of its track at that point. In affirming a judgment for plaintiff, this court said:

“To what extent this way was traveled, and consequently the degree of care required in the management of trains, were proper questions for the jury.”

For the reasons given, we conclude that the questions of the extent to whick defendant’s track was traveled at the place of accident, defendant’s knowledge of such use, the degree of care required in managing trains in that locality, as well as other possible 'questions which might arise in that connection, should have been submitted to the jury 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.


source: Caselaw Access Project

license: Public Domain

text:
    SCOOP v. W. H. WHITE CO.
    1. Total — Directed Verdict — Evidence.
    In considering the contention that a verdict *should have been directed for a defendant, the testimony for the opposite party must be taken as true and regarded in its most favorable light. '
    2. Master and Servant — Fellow-Servants—Safe Place.
    Employees of a lumbering corporation who were engaged in preparing the roads and keeping them in proper condition, sanding the track on the declivities and shoveling off snow when it was necessary, were not fellow-servants with teamsters who drove logs over the roads.
    3. Same — Logs and Logging.
    Employees whose duty it is to prepare and keep a safe place for other servants perform an unassignable duty of the master.

    4. Same — Safe Place.
    And where the lumbering company employed special servants to prepare the logging roads, and assumed the obligation of keeping the roads in safe condition, the teamsters not being required to leave their teams and precede the loads over hills and steep places to ascertain if conditions were safe for passage, but where the road men were expected to call to teamsters and notify them whether they could safely pass over the way prepared and sanded for their use, the teamsters were entitled to rely on the presumption that the master had performed its duty , of keeping the place safe for use.
    5. Same — Competency.
    The competency or incompetency of such road men was not material except as it might throw light on the issue whether they had properly performed their duty.
    6. Same — Assumed Risk.
    Plaintiff did not assume the risks of driving logs down an incline covered with snow, which both master and servant knew must be prepared by shoveling and sanding to make it reasonably safe: having received the customary notice that the work had been done upon calling to the road man, he did not assume the risk of the master’s failure to properly sand the track.
    7. Same — Assumption oe Risk, — Contributory Negiigence.
    Evidence tending to show that plaintiff was injured because 'one of the hills on the logging road had not been sufficiently sanded, and that a team could not guide a load of the size which plaintiff was driving down a hill as steep as this one if the sand had been freshly covered with snow, with evidence pro and con upon the claim of defendant that plaintiff was driving at an excessive rate of speed and the accident was due to plaintiff’s negligence, held, to present issues for the jury as to' his alleged contributory negligence and assumption of risk.
    Error to Charlevoix; Mayne, J.
    Submitted June 2, 1914.
    (Docket No. 6.)
    Decided October 2, 1914.
    Case by Peter Scoop against the W. H. White Company for personal injuries. Judgment for plaintiff. Defendant brings error.
    Affirmed.

      Harris & Ruegsegger, for appellant.

      Elisha N. Clink and Fitch R. Williams, for appellee.

       On the question of the delegability of the master’s duty as to places and appliances, see note in 54 L. R. A. 63.

   Steere, J.

This action was brought by plaintiff in the circuit court of Charlevoix county, to recover damages from defendant for personal injuries alleged to have been sustained, on February 28, 1910, through the latter’s negligence, while in its employ as a teamster at one of its lumber camps, in Warner township, Antrim county. On the trial of said cause a verdict and judgment were rendered in plaintiff’s favor, and defendant has removed the case to this court for review, assigning numerous errors, the chief one being that no prima facie case of actionable negligence was shown by plaintiff’s proofs, and the court should have directed a verdict for defendant.

Defendant was a corporation extensively engaged in logging and the manufacture of lumber, in the counties of Charlevoix and Antrim, having its principal office in Boyne City, in the latter county. Plaintiff was one of its teamsters engaged in hauling logs cut at one of its camps in a locality where the logs were hauled by sleighs a distance of about two miles on a logging road through a hilly section of country to a railroad, for further transportation to defendant’s mills; While driving down one of these hills with a load of logs, plaintiff was injured by the capsizing of his load and logs falling upon him. He was 19 years of age when injured, and first went to work at this camp when 16% years old. He was an experienced teamster, and had driven horses regularly when working in the woods, but mostly at skidding, or moving logs comparatively short distances from where they are scattered through the woods as cut to where they are piled in skidways preparatory to being loaded upon heavy logging sleighs to be hauled on the main road to the banking ‘ground.

The road upon which the accident occurred was a logging road of the usual kind, then in regular use, constructed in the customary manner for the purpose of hauling logs in the winter time on sleighs from the skidways to the banking ground, which in this case was at the railroad. It was made by cutting and brushing out, leveling, and grading the line about 20 feet wide as a bed for the snow, upon which hauling was done. After the snow fell, the road was broken, or put in condition for use.

To properly prepare a sleigh road for use in hauling heavy loads down steep hills, owing to the difficulty of the teams holding the loads back where it is smooth with packed snow, the snow is shoveled off, and, when occasion requires, sand is shoveled on. While hauling is in progress, men employed for that purpose, called, in the vernacular of the lumber camps, “road monkeys,” or “sandmen,” are put upon the road to keep it in a fit condition, particularly to shovel off the snow on the hills, where needed, and put sand on the track at intervals, to act as a brake on the runners of the sleighs and thus check the load, or, if there chanced to be too much sand, throw on snow in front of the runners, so that the loads can pass slowly and safely down, without going too fast or getting stuck. This road was thus prepared for use and was in operation, with road monkeys employed along it to keep it in condition.

Plaintiff attributes his accident to a failure to properly sand the hill where it occurred, and alleges, as a ground of negligence, that defendant did not provide him with a reasonably safe place in which to work, nor exercise reasonable care in the construction and maintenance of said road, nor in the employment of competent and trustworthy men to properly sand, care for, and keep said hill in a safe condition, but neglected the same, and permitted the road to remain covered with snow to such an extent that in driving down it, in the performance of his duties, it was impossible for him to keep his team and load under control.

In considering the contention that a verdict should have been directed for defendant, plaintiff’s testimony must be taken as true and regarded in its most favorable light.

Plaintiff claims and introduced testimony tending to show the following facts: At the time he was injured, there were from six to ten teams hauling on this road; one witness, who states there were then six teams hauling, also testifies:

“They had 25 teams, I guess, and all the- teams were working on this road.”

There were from seven to nine men whose duty it was to keep the road in condition while hauling was in progress; each one having a “beat.” Three of these men were usually on duty along the road where it ran down the hill on which plaintiff was injured* to care for and sand the track, owing to the road at that point being steep and crooked. There were three hills in succession; this hill being the center one. The loaded teams in going from the skidways towards the banking ground first came to a smaller hill, which was not sanded, and on reaching its summit the teamsters, who could not see beyond the higher hill ahead, would stop their horses and call to the sandmen supposed to be caring for the steep stretch of road down the further side. When an answering call advised them that it was all right, they would drive on, going rapidly down the slope of the small, unsanded hill in order to make the grade to the top of the next, which was a short distance beyond, then proceeding down the steep road on the other side, where the sleighs were checked by sand thrown on the tracks, without which the horses would be unable to hold back the heavy loads, consisting of from 3,000 to 5,000 feet of logs, which were mostly hardwood. This was the regular method of making the hill. “All the teamsters had. to do that.”

It is undisputed that the practice of caring for and sanding logging roads at such steep places was customary and essential to safe and successful log hauling by sleighs. A witness of defendant, with 29 years’ experience in woods operations, testifies to the duties of the so-called road monkeys, or sandmen, who are especially employed ,to keep the. roads in a condition safe and suitable for hauling, and says:

“It is customary to sand steep hills where people haul logs down. All lumbermen do that.”

It was also customary, after a fall of snow, to shovel off the road on the steep hills and put the track again in condition for safe hauling.

It had snowed two or three inches the night previous to this accident. That morning the teamsters first drove with their empty sleighs along the “come back” road from the camp to the place of, loading. After getting their loads, they proceeded with them along the hauling road to the banking ground. Plaintiff testifies that he “was not only the first one over the road”; that his team was gentle and easy to drive; that when he reached the top of the first small hill he stopped and “hollered,” and after waiting 10 or 15 minutes he received an answer that the road was all right, when he went ahead, driving down the little hill fast, and, on reaching the top of the second hill, started down it as usual; that he had always done the same thing before, and the other men drove down the first hill the same way he did, but on this occasion, when he came to go down the steep grade of the second hill, his team could not hold the load back, because there was no sand, or not enough sand, on the track; that he was watching the road and held back all he could, but was unable to control his load and team, and they went too fast, resulting in the partial or total upsetting of the load near where there was a curve or turn in the road, throwing him off. Some of the heavy logs fell upon him, causing serious and permanent injuries. No question is raised by defendant as to his injuries or the amount of the verdict, provided he were entitled to recover. Plaintiff also introduced testimony tending to show that only one man was on the steep and dangerous part of the hill that morning; that the road monkeys were incompetent and negligent ; and that the road had not been properly shoveled and sanded when he got the signal that it was all right, and started to go down it.

To the foregoing, defendant introduced contradictory testimony tending to show that in the morning the hill was shoveled and sanded; that three sandmen were distributed along it; that the foreman, Maccabee, went over and inspected the road, finding it in proper condition; that defendant was guilty of no negligence, and the accident, if the fault of any one, was caused by plaintiff’s improperly managing his team and driving down the hill too rapidly.

On request of defendant the court submitted to the jury two special questions which, with the answers returned, are as follows:

“Special Question 1: Did Thomas Maccabee, on the morning and before the accident, go over the road in question and inspect its condition and find it properly sanded, in his judgment? No.
“Special Question 2: Did Thomas Maccabee, on the morning of the accident, and before the accident happened, go over the road in question and find all the road men on their respective beats? No.”

Under various assignments of error, defendant contends that no prima facie case of negligence is shown; that the rule of safe place is not applicable; that, if there was negligence of any one other than plaintiff, it was that of his fellow-servants; that it is not shown that the accident was caused by a failure to sand; that plaintiff assumed the risk; that the verdict and answers of the jury to the special questions are against the weight of evidence.

Where the evidence of plaintiff upon a material point is met by that of defendant, the issue is for the jury, but, in passing upon the question of a directed verdict, plaintiff’s testimony is to be taken as true, and viewed in its most favorable light, as before stated, and, so viewing it in considering that question, we are unable to accept defendant’s contention that the doctrine of safe place does not apply, and defendant, being a common employer, is not liable because the roadmen were fellow-servants with the teamster. Though working for the same employer, those two classes of men were in different and distinct lines of service, one to prepare and maintain a place suitable for the use intended, and the other to use it. The teamsters were not engaged in an employment where it was their duty to prepare their own place in which to work, i The roadmen were so well known in the lumbering business as belonging to a special class that those in that service were favored by descriptive, differentiating titles. The duties of the road monkeys, or sandmen, and their relations to the teamsters, were analogous, in many respects, to those of section hands on a railroad and trainmen.

In Balhoff v. Railroad Co., 106 Mich. 612 (65 N. W. 594), this court said:

"It is urged that section men and brakemen are fellow-servants, and that for that reason there could be no recovery. The weight of the authority is against this claim. The master owes the duty of furnishing a reasonably safe track, and this is a responsibility from which the company is not relieved by confiding the duty of construction or repairs to competent servants. Such are the master’s agents, and their negligence is his negligence. They may be fellow-servants of others engaged in making the repairs, but not of those for whose use and benefit they are made.”

It has been more than once, and quite recently, recognized by this court, as a general principle, that where it is the duty of an' employee to make or keep a place safe for a fellow employee, and he fails in that duty, his failure is that of the master; the duty being nondelegable. Kaukola, v. Mining Co., 159 Mich. 689 (124 N. W. 591); Maki v. Copper Co., 180 Mich. 624 (147 N. W. 533).

The rule that the duty of the master to provide and maintain a reasonably safe place, according to the nature of the employment, for the servant to perform his work in is nondelegable is too well settled and familiar to call for citation of authority. This is not one of the exceptions sometimes recognized, where the place becomes unsafe as an incident of the work done by plaintiff and his fellow workmen in the same line of labor, and where, by the nature of their contract of hiring, it was their duty to keep the place safe after it was once prepared. The teamsters were not required nor expected to leave their teams and run ahead over the hills to see if the places had become dangerous, and, if so, to make them safe. Defendant had, as was customary in such cases, not only prepared the place, but assumed the duty of keeping it reasonably safe as a place over which to haul logs, and had employed men expressly for that purpose, both to care for it and give warning, with the knowledge that down this particular hill the road grade was steep, crooked, and dangerous, requiring special vigilance, and that the teamsters, as they approached with their loads, could not see its condition until they were just starting down it. We think that, under the circumstances shown, defendant’s duty to keep this place reasonably safe, according to surrounding conditions and the nature of the use to which it was put, belonged to the nondelegable class, which is not discharged by giving directions for its performance. In such case the character and competency of the persons employed to perform the nondelegable duty become immaterial, except as the same may throw some light on the issue of whether or not the duty was performed.

The other questions raised lead more squarely into the realm of disputed facts. That plaintiff assumed the risks normally incident to his contract of hiring, which were or should have been known or noticed by him, is well-settled law. That inherent dangers attended the employment of driving these heavy loads of logs down a steep grade, after all reasonable precautions were taken to make the road safe and keep it so, was presumptively known to him, and he assumed such naturally incidental risks; but it is shown not to be reasonably safe, nor customary, nor practical to haul logs down such an incline on the smooth snow. Plaintiff and defendant both knew that, to make it fairly safe and possible to successfully use the road at that point, it must be especially prepared and maintained by shoveling and sanding, which defendant assumed to do with another class of laborers hired for that purpose, and to notify the approaching teamsters, on inquiry, when it had been so prepared for use. After receiving the customary notice that this had been done, plaintiff did not assume the unknown risk involved in its not having been done. He cannot be supposed to have taken into account, in his contract of hiring, the contingency that he might be injured by an unknown breach of duty on the part of his employer.

Defendant’s contention that it is not shown the accident was caused by a failure to sand is necessarily mingled with the claim that the verdict and answers to special questions are against the weight of evidence, for there is testimony tending to show such failure.

Plaintiff testifies:

“There wasn’t enough sand so that my team could hold back the load. There was snow. When I arrived at the top of the hill, I couldn’t see very far from my load of logs. It was crooked. How far I could see I don’t exactly know — possibly 20 feet or more. I did not know that the hill was not sufficiently sanded to enable my team to hold back its load. * * * They told me to come on, so I went. I believed it was properly sanded after they told me it was.”

A teamster named Conrad, of six years’ experience, who was next behind plaintiff, saw the “mix-up,” and stopped his team on top of the hill. After helping care for plaintiff, he went back and proceeded with his load. Of the condition of the track when plaintiff went down it, he testifies:

“It was hilly and crooked and didn’t have no sand; didn’t have enough sand. * * * They needed sand on the road. After I went back from carrying Peter Scoop, I came back and took my load down to the landing. Before I went over it, they put more sand on it. * * * The team run out of the road because they didn’t have no sand to hold back the load.”

The only direct testimony to the contrary, which we discover in the record, is that of Thomas Maccabee, the foreman, and his father, Israel, who was working as a road monkey near the foot of this hill. Thomas Maccabee testified as to the methods of preparing and caring for this road generally, and that plaintiff was a competent teamster, though “he drove pretty fast”; that there was no place on the road where it was necessary to trot or run teams down one grade to get up the next; that he went over the road the morning of the accident, and the hill was in proper condition, with three men along it between where the accident happened and the top, one of them being his father, Israel Maccabee. The father, who does not testify to seeing his son go over the road that morning, states he was below where the accident happened and saw plaintiff coming pretty fast; that, after he made the turn to come down where the accident happened, witness prepared to throw some sand on the road, and says:

“When I raised up I couldn’t see the team, and I couldn’t see the young man or nothing, * * * and I started to run up there, and the horses had been— they ran out on the snow, * * * and I ran around to see; at the log lying across. his legs, and his right shoulder, or his left shoulder was sticking up between the two logs, and this big log * * * was lying on the side of his head.”

He further testified the roads were well cared for; that there were seven to nine men between the top of the hill and the landing; that the only one he saw on this hill above him that morning was Chris Ike, who “seemed to take good care of his roads that winter,” and who, he since heard, “got blowed up with dynamite,” which accounted for his not appearing as a witness. This witness had worked in the woods for many years at “most everything,” including building and caring for logging roads that ran up and down hills and gave evidence somewhat in the capacity of an expert. He testified very positively that a team “certainly couldn’t” guide sleighs loaded with 8,000 or 4,000 feet of logs down a hill as steep as the one in question, if there was fresh snow on the sand.

Defendant also introduced evidence tending to show that plaintiff was guilty of contributory negligence in reckless driving; that he could and should have guided his horses safely along the road down the hill, but either caused them or allowed them to leave it; that, as shown by a plat introduced and the evidence of those who made the survey, there was no rise in approaching this hill necessitating fast driving to get over it; and much other testimony in contradiction of essential facts testified to by plaintiff’s witnesses. This conflicting testimony fairly raised issues of fact for the jury. They were submitted to the jury by a very careful, clear, full, and impartial charge of the court, in which we discover no reversible error on the material questions of law involved; and a careful reading of the record has not convinced us the verdict is so against the overwhelming weight of evidence as to demand an invasion of the recognized province of the jury, in deciding the issues of fact .and demanding cancellation of their findings by setting aside said verdict.

The judgment is affirmed. .

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


text:
    WEBB v. BUICK MOTOR CO.
    1. Master and Servant — Personal Injuries — Negligence—Vice Principal.
    Where the superintendent of a factory ordered an employee to chip pieces out of certain cast-iron frames, and the chips tended to fly into an adjoining passageway employed by plaintiff who worked in other • departments under a different superintendent, defendant was liable for the failure to erect a screen or other protection.

      2. Same — Superintendent—Alter Ego.
    A superintendent of the construction department of an extensive automobile factory, who was subject only to the authority of the defendant, and whose duties were to plan and supervise the construction work in all parts of the establishment, and do the work by his subordinates, having under him an assistant and foreman, was not a fellow-servant with an employee in the stock department, who was injured by the superintendent’s neglect to use a guard or screen to prevent flying chips; for the duty which was violated, was a duty which the master might not delegate so as to escape liability. His knowledge of surrounding conditions was chargeable to the employer.
    3. Same.
    Nor is the doctrine of safe place made inapplicable because the work of chipping frames was temporary: defendant’s duty required the maintenance of a safe passageway for plaintiff in the ordinary scope of his employment.
    4. Same — Expected Result.
    The court could not hold, as matter of law, that the accident was one which defendant need not have anticipated, when it was clear that the chips were liable to fly and strike some of the servants of the defendant.
    5. Same — Assumed Risk — Negligence.
    And the rule of assumed risk did not bar plaintiff’s recovery where new dangers were created by the employer of which plaintiff had no notice or knowledge, unless the dangers were shown to have been such that it was negligent on plaintiff’s part not to have seen and avoided them.
    Error to Genesee; Wisner, J.
    Submitted June 11, 1914.
    (Docket No. 72.)
    Decided October 2, 1914.
    Case by George Webb against the Buick Motor Company for personal injuries. Judgment for plaintiff. Defendant brings error.
    Affirmed.

      Carton & Bray, for appellant.

      Brennan, Cook & Gundry, for appellee.

       As to the liability of the master for injuries caused by splinters flying from hammers or chisels, punches, and other similar tools, see notes in 13 L. R. A. (N. S.) 679; 30 L. R. A. (N. S.) 800, and 40 L. R. A. (N. S.) 832.
      The question of vice-principalship as determined with reference to character of act causing injury is discussed in a note in 54 L. R. A. 37.

   Steere, J.

In this action of tort brought to recover damages for the accidental loss of an eye charged to have been caused by defendant’s negligence, plaintiff was awarded a verdict and judgment for $1,741, in the circuit court of Genesee county.

The injury was inflicted by a flying chip from a cast-iron frame upon which a workman was chiseling, striking plaintiff in the eye as he was walking along a passageway adjacent to where such work was in progress.

The grounds of negligence charged and relied upon are, in substance, that defendant failed to furnish plaintiff, who was one of its employees, a safe place in which to perform his duties; that it knowingly and negligently ordered the chipping to be done, and failed • to erect screens and coverings around the work to prevent the chips flying, or to place barriers across the passageway, or to notify plaintiff that such work was there being done and of its. attendant dangers.

Defendant’s grounds for reversal are, as condensed from its numerous assignments of error and briefly stated: That no actionable negligence has been shown because, under the admitted facts and testimony in the case, the doctrine of safe place and nondelegable duty does not apply; the accident and injury could not have reasonably been anticipated and was caused by the happening of a remote contingency; the work of chipping was temporary or transitory in its nature, being connected with an equipment or construction job, was unknown and unauthorized by defendant, was the act of a fellow-servant, and plaintiff assumed the risk.

Defendant was a corporation engaged in the manufacture of automobiles in the city of Flint, having in its service over 5,000 employees working in different departments and buildings of its establishment. In its business organization there were various distinct departments in charge of superintendents, with assistant superintendents and foremen under them; the various departments for the most part being located, or having headquarters, in separate buildings. The assembly plant, where the cars were put together and tested, was in a large two-story structure called “Factory Buliding No. 10,” and was in charge of a superintendent named Edsal'l. On the first floor of this building were three large rooms -known as the finishing, paint, and assembly rooms. The assembly room, in which plaintiff was injured, was 400 feet long and 72 feet wide, with a center aisle or passageway running through it north and south, lengthwise of the building, the remainder of the room on each side, of the passageway being occupied by machinery, tools, material and workmen as the nature and needs of the business of assembling required. The superintendent’s office was at the extreme south end of this floor. On the day of' the accident, December 29, 1910, the assembly room was not running full force, though the number of men then working in that room is variously stated by different witnesses at from 60 or 80 to 200. Some men belonging to the construction department were also, working in the room upon a job of installing what are designated as “mechanical testers.” The construction department had its headquarters in another building, and was under a superintendent named MacAfee. The work of this department ranged from factory to factory all over the plant, wherever and whenever occasion demanded. On the day of the accident the men of the construction department working in the assembly room were engaged, under direction of their own foreman, named Duryea, in erecting and fitting steel frames, or stands, for the metal chassis of the automobiles to rest upon in testing. These mechanical testers were mostly designed and the patterns prepared by MacAfee, the superintendent of construction. They were made by his department, and were being erected in the assembly room by his men under his supervision. In the progress of the work it was found necessary to remove a triangular piece from each corner post or “leg” of the cast-iron, rectangular frame of the tester, and he directed the foreman to have a sufficient piece cut out, or the leg cut down to properly fit, by the men chipping or chiseling off the triangle with a cold chisel and hammer. There were two rows or sets of these metal frames on each side of the center passageway. MacAfee testified that it was his duty to look after the construction work within the factories; that he ordered the chipping to be done, and it had been going on- at intervals for about two weeks when plaintiff was injured.

Plaintiff did not belong to either the assembly or construction department, but was employed in the stock department, under a different superintendent, and was directly under a foreman named Oakley, who was located in the basement of building No. 10, in charge of a room where the finishing stock was kept, and plaintiff’s headquarters were with him. * Plaintiff’s duties consisted of caring for this finishing stock and delivering it when needed, as it might be called for. On the day in question Oakley directed him to take some “cuff plates,” or running board brass, to the foreman in the finishing room, which he did, and was then directed by that foreman to deliver them at the superintendent’s office, located on the same floor at the south end. Plis most direct route was south on that floor from the finishing room, through the paint shop and along the passageway through the assembly room. On his way and just as he entered the assembly room he met Edsall, superintendent of that department, to whose office he was directed to take the material, and showed the latter what he was carrying. Edsall said to him “Take them to the office * * * and give them to Mr. Delmore.” Continuing on his way along the passage towards the office a flying piece of metal struck him in the left eye. The sight was. destroyed, and it ultimately became necessary to remove the eye. His knowledge of what the missile was, where it came from, and what caused it to fly was after-acquired. The cause and details are related by others who were present. Plaintiff testified that the passageway, with which he was familiar, was clear and unobstructed, that he thought it was about 10 feet wide, and that officers of defendant, its workmen, and others who had occasion, were accustomed to use it; that there was the noise of running machinery, pounding, and other usual sounds of work going on in different parts of the room, but he had no knowledge or notice that this chipping was being done, or any kind of work which made the passage dangerous; that he did not stop or pay any particular attention to what was being done, and walked right along about his own business, his mind being on his mission.

It was shown that the piece of metal which inflicted this injury flew from a “horse,” or frame, on the east side of the passageway upon which one of the construction men, named Ebear, was chipping. He testifies :

“I did not see Mr. Webb when he came through there. I saw him a minute after he was struck. Just immediately prior to his being struck I was chipping a casting out of one of the legs of the test. Mr. Duryea instructed me to do it. * * * Mr. Duryea understood about the work. * * * He told us to use a chisel and hammer. We did it just as we were told. * * * I know who chipped off the chip that struck Mr. Webb. I did. It flew from the blow of the hammer on the chisel. I did not see him when he was struck. Mr. Craw was working right beside me at the time, at my right. When we saw Mr. Webb was struck, Mr. Craw spoke to me and swore. * * * I ran up to Mr. Webb then. * * * I catched him by the arm and walked down to the desk with him.”

In submitting the case to the jury the court said:

“I charge you as a matter of law, Mr. MacAfee was a vice principal and his knowledge was the knowledge of the company. He directed the change in the standards and approved the method of making the change, that is, the chipping, and if you find that a man of ordinary care and caution under all' the circumstances would have made provision to protect the employees liable to pass along the alley from the flying chips, having regard to the probability of injury to such employees, would have erected shields or barriers or given notice of danger, then you will be warranted in finding the defendant guilty of negligence.”

In the brief of defendant’s counsel MacAfee is designated as a “foreman” who was instructed to do certain work, in which he made a mistake, necessitating this chipping, and it is said:

“When it was discovered that this change had to be made, several of the frames had already been installed and fastened together, and Mr. MacAfee did not consult the company or its officials, nor tell them about it, but directed that the small piece in question be chiseled off with a cold chisel and hammer, as the best and cheapest way under the circumstances.”

It is argued that this resulted from his mistake, of which defendant had no knowledge or notice, and for which it was not responsible.

It appears without question from the record that MacAfee was superintendent of the construction department, in charge of a distinct organization of the plant, with his office and headquarters in a different building. The only one having any authority over him being defendant itself. His duties were to plan, look after, and superintend the construction work in all parts of the establishment, and to do the work with his own men. After receiving general instructions as to what was desired by defendant, the details were delegated to him, and he had the full control and management of his department, with an assistant and foremen working under him according to his instructions. He says of this work:

“The proposition was put up to me to build these mechanical testers of a certain design, giving me the idea and asking me to get out the patterns, which I proceeded to do, using my own pattern maker, my own workmen putting that thing into operation. * * * After we had assembled a few of them, the foreman I had in charge of the work came to me and told me the chassis would not fit. * * * I ordered them cut to fit. * * * I assumed the responsibility of giving those orders. * * * I directed the men in my employ to cut that off; that was the only way it could be done successfully. * * * I was brought in consultation with the foreman there on the job. * * * That was my judgment of it, to cut it off with a chisel and hammer. I knew those chips would fiy some, to be sure. I knew if they hit anybody it was liable to hurt; if it struck anybody in the eye it was liable to put the eye out; that is the supposition.”

Witness also testified that he gave no instructions to put up shields or screens to prevent chips flying; and if that ought to be have been done he thought it would be the duty of his department, to do it, but that he had no idea any one would be struck in the eye by those chips when he ordered the chipping done.

The questions of who is a vice-principal or a fellow-servant and what is the same employment are often difficult to determine and have been reviewed in endless decisions which, necessarily depending upon and varying according to the circumstances of each case, can often only be reconciled or distinguished by a full analysis of the evidence in each particular case.

We are well satisfied that the conclusion reached and instructions given by the trial court, holding as a matter of law under the undisputed facts that Superintendent MacAfee was a vice-principal or alter ego of defendant are well founded in reason and sustained by abundant authority. The subject is exhaustively reviewed, with numerous citations of authorities in Labatt on Master & Servant (2d Ed.), §§ 1479-1553. In section 1582 it is said:

“The doctrine discussed in chapter 65, ante, is manifestly no bar to a servant’s action, where the particular detail of the work which caused the injury was carried out under the superintendence, or by the direction, of the master himself, or of one of those employees who are deemed to be vice-principals by virtue of their rank.”

Here the work was done by direction of one we deem a vice-principal. The controlling elements as applied to this case are well stated in Dixon v. Ironworks, 90 Minn. 492 (97 N. W. 375), where, after stating them, it was held a so-called superintendent was not, in respect to the negligence charged, a vice-principal, and in Hunn v. Railroad Co., 78 Mich. 513 (44 N. W. 502, 7 L. R. A. 500), wherein it is said:

“The master may not choose to give his personal attention to his business, and may desire to put another in his place, to manage and control it for him as fully as he might do if personally present. Such person is his alter ego, and the master is as responsible for his acts of omission and commission, while engaged in the business intrusted to him, as if he did such acts himself. It is the duty of the master to supervise, direct, and control the operations and management of his business, so that no injury shall ensue to his employees through his own carelessness or negligence in carrying it on, or else to furnish some person who will do so, and for whom he must stand sponsor. This is true of natural persons, and it is especially true of corporations, who can only act through natural persons. Whenever the business conducted by the person selected by the master is such that the person selected is invested with full control (subject to no one’s supervision except the master’s) over the action of the employees engaged in carrying on a particular branch of the master’s business, and, acting upon his own discretion, according to general instructions laid down for his guidance, it is his province to direct, and the duty of the employees to obey, then he stands in the place of the master, and is not a fellow-servant with those whom he controls.”

The foregoing conclusion also negatives the contention that the work of chipping in the assembly room was unknown and unauthorized by defendant. MacAfee ordered it, and knew when and where it was done. He also knew that the chips would fly and if they hit any one they were liable to inflict injury. His knowledge as vice-principal was defendant’s knowledge. It is not shown, or claimed, that the work of chipping in itself was improperly or negligently done by Ebear. He was doing it just as directed. The negligence charged is a failure to perform the nondelegable duty of preventing the chips flying to where they were liable to injure others, or to warn of the resulting increased danger in using this passageway.

It is urged that the doctrine of safe place and nondelegable duty does not apply because installing these testers, with incidental' chipping, was a temporary, construction job, preparatory to carrying on the regular manufacturing work of defendant in that building; that the work was being done by the construction department and would soon end on completion of the installation. But it is also shown that in the completed building where this chipping was done the regular work of defendant in the manufacture of automobiles, as applied to the department for which that building was intended, was in progress as usual, equipped with its material, machinery, and workmen, organized and running as a separate department. Plaintiff’s services were furnishing supplies to that department. He was in no way connected with or assisting in the construetion work. No alterations in the passageway had been made or were in progress. It had been provided by defendant as a necessary and convenient and safe way for its employees while performing their duties there, and was constantly in use as such. In itself it was safe as before. It was not only the duty of defendant to make it safe, but to keep it safe. The kind of work begun and in progress adjacent to it by order of the vice-principal without providing safeguards or notice to those using it raises the .question of negligence involved.

The familiar case of Beesley v. Wheeler & Co., 103 Mich. 196 (61 N. W. 658, 27 L. R. A. 266), cited by defendant, points out the distinction. It was there held that all workmen under the charge of one superintendent engaged in the common service of constructing, or building, a ship were fellow-servants, and it is said of the facts there involved:

“The case is different from those where the master furnishes a permanent place to work, as in a ship or factory. A master’s duty in such a case is to make and keep the place reasonably safe; but that rule would apply as to those working in, but not necessarily as to those constructing, the factory. Such employees would not be fellow-servants with each other, for the enterprises would not be the same.- The service of one would be the erection of the completed factory; .that of the other its use for the purpose for which it was designed.”

Plaintiff’s services were in connection with the use of the building for the purpose for which it was designed. This work of chipping in connection with installing the testers, while temporary in the sense that it would not permanently and indefinitely continue, was not a mere incident, of - a short time only. MacAfee stated it had been going on about two weeks, and it was the intention to equip the assembly room with these testing stands. Ebear states they had then chipped either eight or nine sets of horses, and plaintiff testifies that in his judgment there were about 40 sets of horses on the east side of the passageway. It can well be contended that the regular workmen in a running factory, if not entitled to the same protection as at other times, when changes are being made and new machinery installed, are at least entitled to reasonable protection compatible with existing conditions, by barriers or due notice <against new dangers resulting from the disturbed surroundings.

It is urged that the court under the facts shown should have held as a conclusion of law the accident was such that it could not reasonably have been anticipated, and was caused by the happening of a remote contingency. It may be conceded that no one could foresee or reasonably anticipate that this particular accident would happen just when and as it did, but the test upon that proposition is whether the work, where and as conducted, was of such a nature and so dangerous, it should reasonably have been anticipated that some one whose duties called him there was likely or liable to be injured. We have referred to MacAfee’s testimony as to his knowledge that chips would fly and the possible results. Ebear testifies of this:

“I was working on the east side of the building. From the passageway to where Mr. Webb went by I should judge it was between 15 and 20 feet. While I was working these chips that I chipped off flew all over. Some of them struck way the other side of the room; went west across this passageway. I could not say with what velocity. They would strike the west wall, some of them would. They ran all the way from an eighth of an inch to an inch long; they were about one-eighth to one-half inch thick. They flew westerly mostly. I could not say with what force they went. Some would go across the building, some halfway. * * * There could have been a sheet iron or something of that kind set up there that would have prevented these chips from flying across the passageway. A screen could have been used if it had been fine enough.”

The legal duty of an employer to safeguard against, or warn workmen of, the danger from particles thrown by clipping, shearing, or other cutting of metals has more than once been recognized in cases somewhat similar to, though not identical with, this. Smith v. Manufacturing Co., 56 App. Div. (N. Y.) 528 (67 N. Y. Supp. 533); Choate v. Mill Co., 27 Ont. App. 155; Brockmiller v. Industrial Works, 148 Mich. 642 (112 N. W. 688). In 4 Thompson on Negligence (2d Ed.), § 3969, it is said:

“The owner of a mill in which iron or steel is being chiseled, chipped, or cut, is bound to exercise reasonable care and to supply reasonable devices to prevent his servants from being injured by flying chips, splinters, or fragments of the metal; and where the exercise of reasonable care demands such a precaution, he is bound to adopt some system, or make and enforce reasonable rules, devised for the prevention of accidents of this nature, and his negligence in this particular will generally be a question for a jury.”

The testimony introduced by plaintiff in this case sufficed to make the question of defendant’s negligence in that particular a question for the jury.

It is urged that plaintiff assumed the risk. The rule of assumption of risk has no application where, as claimed here, new dangers are created by the employer of which the workman had no notice or knowledge, unless the dangers were such that it was negligence on his part to fail to notice and avoid them. The question of plaintiff’s contributory negligence was submitted to the jury under proper instructions. We find no reversible error in this record.

Judgment is affirmed.

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

Ostrander, J. In my opinion the doctrine of vice-principal, as applied to MacAfee, is not involved. The doctrine of safe place is involved, and in my view the conclusion stated by Mr. Justice Steere is the correct one.

Kuhn, J., concurred with Ostrander, J.


text:
    MINTZ v. SOULE.
    1. Mortgages — Deeds.
    A deed may be shown by parol to have been Intended as a mortgage.
    2. Same — Evidence—Written Documents.
    In passing upon the proofs in such cases, courts favor written evidence over oral testimony, but are required to consider the relations of the parties, surrounding circumstances, and gather therefrom, if possible, the real intent of the parties.
    3. Same — Evidence.
    Evidence held to warrant the trial court in determining upon pleadings and proofs that a deed and contract back to the vendor did not amount to a mortgage.
    Appeal from, Wayne; Mandell, J.
    Submitted June 18, 1914.
    (Docket No. 112.)
    Decided October 2, 1914.
    Bill by Samuel Mintz against Elmer F. Soule and another for the foreclosure of a land contract. From a decree for complainant, defendants appeal.
    Affirmed.

      W. W. Wicker, for complainant.

      Thomas Hislop, for defendants.
   Steere, J.

This is an appeal from a decree for foreclosure of a certain land contract made by defendant Annie J. Hogan to defendant Elmer J. Soule, and by her assigned to complainant, Mintz, in connection with a conveyance to him of the property described in said contract, which consisted of two lots in a subdivision of a part of the Meldrum farm, in the city of Detroit, upon which were two double dwelling houses occupied by tenants. Said executory contract now sought to be foreclosed bears date December 1, 1911. By its terms defendant Hogan agreed to sell, and defendant Soule agreed to purchase, said property for the sum of $9,600, payable $1,600 down and the remaining $8,000 in installments of $150 each month thereafter, with interest at 6 per cent, per annum until due, and at 7 per cent, after due, payable semi-annually. The instrument was in the customary form and phraseology of land contracts and contained the usual provisions as to payment of taxes, keeping property insured, surrender of possession in case of default, etc., on the part of the purchaser, and as to the seller’s right in case of default to declare the contract void, retain all payments made, and retake possession. The right to immediate possession of the premises was given to the purchaser, and it was expressly stipulated that neither party should assign his or her interest in said contract without the consent of the other. The contract was executed in duplicate, and upon the copy produced in evidence by complainant was indorsed an assignment of defendant Hogan’s interest therein to him, signed by her and dated December 5, 1911. ' On the same date she conveyed said premises to complainant by a warranty deed, which was recorded in the office of the register of deeds on December 9, 1911.

The chief controversy in this litigation arises over the import of said deed. Complainant contends that he bought the property outright for $7,000, subject to the land contract, which should have resulted, with the $1,600 paid her by defendant Soule on said contract, in defendant Hogan’s realizing in cash for said property the sum of $8,600; while the defendants claim that the deed and assignment of her interest in the land contract are, in fact and legal effect under the testimony, but a mortgage for $7,000, which she borrowed of complainant at that time.

Defendant Hogan had been the owner of this property for a considerable time prior to this transaction. Creditors had levied on it for a claim of $383.80, and it was incumbered by a mortgage to the Detroit Trust Company upon which there was due $3,592.70. She was desirous of selling the property, and to that end had talked to various parties on the subject, including a real estate agent by the name of Pike and defendant Soule. Negotiations initiated in those conversations culminated in the conveyances before mentioned. Soule testified he had knowledge that a motor company contemplated purchasing additional land in that locality, and he had reason to believe this property could be advantageously disposed of to said company, for which reason he thought it was a good buy, saying: “For I knew what I could get it for”; but that after paying the $1,600 down he found that the motor company deal in which he was “mixed up” was not going through, and he “did not care to put any further money in it.”

After the tentative negotiations had approximated an understanding between defendants Soule and Hogan, the latter, because of past-due obligations which were pressing her, among other reasons, was desirous of making arrangements to realize more ready money from the sale than Soule was able to pay, and expressed a willingness to accept a less price for cash down. To that end Mr. Pike, the real estate agent whom she had consulted in regard to selling the property, conferred with another real estate agent named Fink, informing him that Mrs. Hogan had a party who would buy the property for $9,600 on time, but she was needing the money and willing to sell for cash for $1,000 less; that it could be purchased for $7,000 subject to a land contract for $9,600, which she could make with a party who would pay her $1,600 upon such contract, leaving the balance to go to the purchaser of the fee. Acting on this information, Fink solicited complainant to take part in the transaction and buy the property. After some consulation and an examination of the property he became interested. A general understanding was apparently reached between the parties prior to November 17, 1911, on which date, as a preliminary to the conveyances already mentioned, a written contract was entered into between defendant Hogan and complainant Mintz, which recited that she had an opportunity to sell this property on certain stated terms, which correspond with those in the contract with Soule now sought to be foreclosed; that she was “desirous, before signing said land contract, of knowing and having in writing an agreement from the party of the second part to purchase said party of the first’s interest in said land contract”; and “therefore it is agreed between the parties hereto, that the party of the first part agrees to deed to said party of the second part, by proper warranty deed, the above-described property, subject to said land contract above described, and assign said land contract to the party of the second part for the sum of $7,000, and the party of the second part agrees to purchase said property on the above terms and pay therefor the sum of $7,000 in cash,” etc. In making this agreement of November 17, 1911, both parties were accompanied by counsel. It was drafted by counsel for defendant Hogan. Some discussion arose over certain provisions in the proposed instrument, in which complainant and his counsel suggested and insisted upon a few alterations and additions which were finally agreed to and inserted before the deal was closed and the instrument signed.. The following constitutes that portion of said agreement modified from the original draft, the portions in parentheses constituting the additions or alterations made before the parties signed:

“And the party of the first part agrees that of the $7,000 the sum of $600 is to be held (by the party of the second part) back until said party who is purchasing said property upon said land contract shall have paid to said party of the first part four payments on said land contract in addition to said first payment, amounting to $600, when second party will collect all subsequent payments on said land contract from said purchaser and (shall retain and keep said $600 and indorse such payments on said, contract, as of the date they are made). The said party of the second part is to pay to the party of the first part a deposit of $250 as evidence of good faith that he will carry out this contract, and the party of the first part, in case of defective title or failure to have the contract with the purchaser signed and completed as above set forth, agrees to return said deposit. * * * (First party to guarantee that said purchaser will pay said contract in full.)”

The $250 provided for as “evidence of good faith” on the part of Mintz was paid defendant Hogan by check dated November 17, 1911, the same date as the contract, and the matters foreshadowed in this agreement were later put in more definite form and consummated, so far as then possible, as follows: The Soule land contract with Mrs. Hogan was executed on December 1, 1911, and on December 5, 1911, she assigned the same to complainant, at the same time executing to him a warranty deed of the property, as before stated. He thereupon forthwith gave a mortgage on the property for $3,900 to a Detroit bank, with which, and other moneys raised by him, he paid off her mortgage to the Detroit Trust Company and certain liens of her creditors on the property. On December 7, 1911, he paid her by check a sufficient amount to cover the balance of the $6,400 then due her, at the same time giving her an order on Soule for him to pay her the first four installments of $150 each as they fell due on his contract, to cover the $600 mentioned in the contract of November 17th, and concluded the transaction by paying to Fink $150, asked as a commission on the deal.

During the four succeeding months complainant credited the $600 which he had retained on the contract in installments of $150 each month as they fell due, and thereafter endeavored unsuccessfully to collect from Soule the payments which followed. To that end he obtained judgments against Soule in justice’s court for two installments, but appeals were taken, and the cases were pending when this suit was heard.

In the meantime Soule had not only paid none of the four installments assigned by complainant to Mrs. Hogan, but by some arrangement with her did not take possession of the property as authorized by his contract, leaving her in possession and control to collect the rents, with him as one of her tenants, and on March 21, 1912, he profitably assigned to her his interest as vendee in the land contract complainant held by assignment from her as vendor, recovering from her, as she testified, all he had paid her on the contract, and $500 besides. Complainant claimed these transactions took place without his knowledge, and on May 10, 1912, having subsequently learned of them, he wrote Soule demanding immediate payment of the amount due on his contract, saying:

“Mrs. Hogan claims that you have assigned this contract to her. This assignment I must refuse to accept or consent to, as it was made without my knowledge or consent, and I shall look to you for the performance of this contract.”

Following further pressure by complainant to collect the amount due on the contract or get possession of the property, Mrs. Hogan asserted herself as the owner in possession, both by virtue of her original title and an assignment of Soule’s contract, claiming the deed and assignment by her to complainant were but security for a' loan, and that his claim for the amount due according to the terms .of the contract was usurious. On June 27, 1912, she tendered to him and his attorney the $6,400 she had received, with interest, less the mortgage for $3,900, which complainant had placed upon the property after receiving her deed, designating the tender as “in full of all moneys advanced to me to enable me to make contract with Elmer S. Soule for purchase,” etc., proposing to assume said mortgage and demanding “that you return to me an assignment of all interest therein and a deed of said lands, as you have no further interest in them.” In reply complainant and his attorney offered to accept from her the amount due according to the terms of the Soule contract, but declined her tender as insufficient. No further payments were made, and defendant Hogan, standing upon her tender, remained in possession of the property, asserting ownership and collecting rents until this bill was filed on November 30, 1913. No personal decree was asked or granted against her, and she was given the right to redeem, or pay up the amount due, as assignee of Soule’s interest as vendee. At the time of hearing, the property rented for $110 per month.

We need spend no time in considering the arguments and authorities cited by defendant’s counsel in support of the contention that this was a usurious loan. If the deed was a mortgage in effect and the transaction was a loan, counsel’s position is apparently well taken. The only question calling for serious consideration is whether the defense has sustained the burden of establishing that this warranty deed, on its face conveying the absolute title, was, between the parties, but a mortgage to secure a loan.

It is well settled that such question is open to litigation, and the courts may so declare when the testimony impels to that conclusion. In passing upon the proof courts favor written evidence, rather than oral, but are required to consider together the writings, relations of the parties, surrounding facts and conditions generally, to arrive, if possible, at the real intent, understanding, and agreement of the contracting parties.

Defendants admit, and Mrs. Hogan states, that all preliminary talk and agreements were that the transaction would be a sale, and the papers were executed with that intent, but claims complainant just at the last refused to close the deal and buy the property, insisting that it must be a loan or nothing. She testified:

“The understanding was he was to buy, and at the last thing when coming to the settlement he said he changed his mind and did not want to buy it, but he would make a loan if I would guarantee the payment. He said he would loan $7,000, and to secure the loan I had to give him a deed; for he did not think a mortgage would be satisfactory. That is how we got into it. That was why he insisted on changing this original agreement. The original agreement was drawn up for him to buy the property outright, but at the last he was the one that proposed making a loan, and I was willing to sell then or now, and he was the one that suggested a loan, and there was no sale, and he knows it. * * *' And I said, T will have to buy it back, there is nothing else for me to do’; * * * and he said, T want to make the loan sooner than buy it. You have a right to pay it back any time you see fit, and so long as you pay interest’ — .
“Q. (on cross-examination). Up to the time he got the deed he had said nothing about it being a loan?
“A. No, sir.”

Defendant Soule testified:

“The conversation was that Mr. Mintz' was to loan the money to Mrs. Hogan on this contract.”

In direct contradiction of their testimony upon this point is that of Mintz, his attorney, Pike, and Fink, the last two apparently disinterested witnesses.

Mintz positively testified that he bought the property outright, that the deed and assignment were absolute, and he had no talk with Mrs. Hogan, or any one acting for her, prior to, or at the time of, closing the deal in relation to loaning her money. His attorney who assisted in the negotiations testified that he was present most of the time, that the negotiations and papers were upon the theory and basis of a sale and nothing was said about a loan.

Pike, who acted for Mrs. Hogan as real estate agent and with whom she consulted, testified that in his work and talk with her he was operating for a sale ánd. never heard it claimed it was anything else.

Fink, the real estate agent acting for Mintz, testified they were negotiating a sale, not a loan, that he was present when the deed passed and all the time of the meeting when the deal was closed, that nothing was said about Mintz changing his mind and making a loan, and the first he heard of any such claim was in court.

Assuming these parties are all equally credible witnesses, the testimony would seem to preponderate against defendant’s contention.

It is not shown that the value of this property was more than the amount advanced by Mintz when the deed was given — a material consideration when passing upon the question of whether a deed was in fact a mortgage. Fink, a real estate agent with years of experience in the city of Detroit and familiar with values in that locality, testified that the fair, cash value of this property was from $7,500 to $8,000.

We find nothing in the writings conveying the idea that this was a loan. The deed and contract between the parties are to the contrary. The preliminary contract of November 17th states that one reason for making it was because Mrs. Hogan desired an agreement in writing that Mintz would purchase the property before she closed the contract with Soule. She was not then bound by any agreement of sale to him and did not execute his contract until December 1st.

Considering the surrounding circumstances, we find there were no previous business relations, friendship, or existing indebtedness between the parties leading up to and suggesting the likelihood of an oral agreement contrary to the legal import of the papers they signed. Before that time they were strangers, with no confidence established in each other. Both had counsel. She insisted on his paying down $250, “as evidence of good faith,” and that it be in writing, while he was equally insistent on stringent security in writing signed by her that the land contract would be fully executed according to its terms. Under such conditions as are here disclosed, the writings executed by the parties are the safest and most reliable evidence of intent and agreement.

We discover none of the convincing elements in this case which sometimes move courts to construe instruments under seal as other than they purport to be, and agree with the trial court that the testimony, considered as a whole, not only fails to fairly show that this warranty deed was, in fact, only a mortgage, but is convincing to the contrary.

The decree is affirmed, with costs.

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