text:
    KOSCNICKI v. PERE MARQUETTE RAILWAY CO.
    1. Railroads — Personal Injuries — Blowing Whistle at Crossing — Negligence—Frightening Horse — Question eor Jury.
    In an action against a railroad company for personal injuries caused by plaintiff’s horse running away as the alleged result of defendant’s negligent blowing of the locomotive whistle on a highway crossing, disputed testimony as to the location of the engine when the whistle was blown, held, to present a question for the jury.

      2. Same — Actionable Negligence.
    In such action, if the engineer saw or should have seen the situation plaintiff was in, with his horse in close proximity to the track, and blew the whistle and frightened the horse, thus causing the accident, actionable negligence would be established..
    3. Same — Failure to Give Statutory Signal at Ceossing — Notice.
    There is no merit in plaintiff’s contention that it was actionable negligence on the part of defendant in not blowing the whistle at the distance from the crossing fixed in 2 Comp. Laws 1915, § 8302, where plaintiff testified that he saw the train coming when it was at a distance from the crossing equal to that fixed in the statute.
    4. Same — Contributory Negligence.

      Held, that the question of plaintiff’s contributory negligence should have been submitted to the jury.
    Error to Manistee; Withey, J.
    Submitted February 4, 1919.
    (Docket No. 42.)
    Decided April 3, 1919.
    Case by Frank Koscnicki against the Pere Marquette Railway Company for personal injuries. Judgment for defendant on a directed verdict. Plaintiff brings error.
    Reversed.

      Srrmrthwaite & Campbell, for appellant.

      Shields, Merriam & Sleeper, for appellee.
   Kuhn, J.

On February 22, 1917, the plaintiff, having business to transact at the village of Copemish, in the county of Manistee, about five’ miles distant, left his home about 8:30 o’clock in the forenoon with a horse and cutter to drive to that village. On the day previous there had been a heavy snow storm in that vicinity, and in order to get to the village of Copemish it was necessary to cross the tracks of the defendant railway. He drove from home two and a half miles to the railroad crossing and found that the highway was filled with snow thrown from the railway tracks by the snow plow and thus made impassable. He drove back to the next highway running south and proceeded south and east and crossed the railway half a mile north of Henry, which is the next station on the defendant’s line south of Thompson-ville. Plaintiff proceeded to Copemish, where he was delayed about three hours, and having business at Thompsonville, which is about three miles north of Copemish and but a little out of the direct route from Copemish to his home, he took the highway leading to that village. Defendant’s railway line crosses that highway between these two towns at about half a mile south of Thompsonville. The plaintiff arrived at this crossing at about two o’clock in the afternoon. As he approached the crossing, and when about 50 or feet from it, he saw a man working on the railroad tracks, shoveling snow from the tracks into the highway. It is plaintiff’s claim that this man, who was an employee of the defendant’s railway, beckoned for him to come on. At the crossing the highway was packed full of snow to the depth of about five feet, according to the estimate of the plaintiff, and he drove his horse to the show barrier, which was about ten feet from the crossing. Thereupon, it is his claim, he got out of the cutter and went to the crossing, and after some discussion with the man who was there at work, picked up a pickaxe and attempted to make an opening through the snow that would permit the horse to get over the crossing. It is his claim that while engaged in digging out a passage over the crossing, he saw a train approaching from the south, and that ,as soon as he saw the train, he started for his horse and arrived at his horse’s head at about the time that the locomotive arrived at the crossing. That at •about that time the whistle of the locomotive was blown, which frightened the horse, the horse turning around and tearing away from the plaintiff and running down the highway towards the south. That as the horse tore around and away from the plaintiff, the cutter struck the plaintiff on his side and knocked him down and that he was for a time unconscious, and that as a result three of his ribs were fractured, and that he received other injuries therefrom. This action is brought to recover damages which it is claimed resulted from this accident. The declaration charges the defendant with negligence in that it failed to clear the highway crossing within a reasonable time after the snow was thrown into the highway from the railway track, whereby the plaintiff was detained at the crossing, and also that the engineer or fireman upon the locomotive, having an unobstructed view of the crossing and vicinity, it being a clear and fine day, and while the plaintiff and his horse and cutter were in plain view and were seen, or should have been seen, by the man in charge of the locomotive, just at the time the engine was upon the crossing and within a few feet of the plaintiff and his horse, pulled or blew the locomotive whistle, thereby scaring or frightening the horse to such an extent that, although it. was a quiet, tractable horse, it broke away from the plaintiff as stated and caused the plaintiff the injuries alleged. The declaration also charges negligence upon the part of the defendant in that the whistle was not blown or the bell rung or other signal given of the approach of the train until the locomotive was at the crossing. On the trial of the case, at the close of the proofs, the learned trial judge directed a verdict for the defendant on the ground that in his opinion no actionable negligence had been shown on the part of the defendant. Whether or not he erred in directing a verdict is the question before us for review.

Counsel for plaintiff admit in their brief that the obstruction of the highway by the defendant was not the proximate cause of the injury to the plaintiff, but that it simply accounts for the presence of the plaintiff at the time and place. Therefore, so far as this discussion is concerned, we need not consider the claim of the declaration of actionable negligence on the part of the defendant in not clearing the crossing of the accumulated snow.

But whether or not the learned trial judge did not err in eliminating the question of the claimed improper blowing of the whistle at the crossing presents a more serious question. The plaintiff was sworn and testified with reference to how the accident happened, as follows:

“Q. Now, after you got back to your horse just tell us what happened?
“A. I got back to my horse and I turned the horse pretty near half way around and the train was going right across over the crossing; and then they pulled the whistle and the horse got scared and made a. jump and tore out of my hands and the cutter hit me right in the side and I fell over right in the snow and I was lying there; and after I was coming to I seen the horse had turned around himself and rolled around in the snow in that cutter and came right into the road ánd started to go back to Copemish that way and Mr. Newt. Standish caught her and brought Iier back.
“Q. What frightened the horse and caused the horse to run, if you know?
“A. The train.
“Q. Well, what about the train?
“A. Right on the crossing they pulled the whistle, then the horse got scared.”

In other -parts of his testimony he reiterated that the whistle was blown at the crossing, but upon being recalled for further direct examination, he testified as follows: .

“Q. Where was the engine of the train, Mr. Koscnicki, when the whistle was blown, in relation to this crossing?
“A. Right on the crossing. That is where I understand it was — right on the crossing.
“Mr. Shields: I ask that the' balance of that answer, whatever it was, be stricken out.
“The Court: The understanding?
“Mr. Shields: Who told you it was there?
“The Court: Well, his understanding is not competent.”

The trial judge was of the opinion that the modification by the plaintiff of his testimony by the statement that it was the understanding of the plaintiff that it was at the crossing, made his testimony as to the whistle being blown on the crossing of no value. A reading of the plaintiff’s testimony indicates that he was not very familiar with the English language, having been foreign born, and undoubtedly was careless in the use of the word “understand.” But, as contended by plaintiff’s counsel, even if the word should be considered as used in its generally accepted meaning so that it would appear that he had not actually seen the locomotive at the time the whistle was blown, he still testified that according to his impression the whistle was blown while the engine was at the crossing, being guided in all probability in that conclusion by his hearing, and we are not impressed that it can be said that there was no testimony that would warrant the submission of his theory of the accident to the jury. The blowing of the whistle at the crossing was denied by the witnesses produced by the defendant, who testified that the whistle was blown before or at the time the engine reached the whistling post. The testimony seems to be undisputed that the whistle was blown only once, so the real question at issue in the case was, Where was the whistle blown? Upon the record as made, the testimony of disinterested witnesses is most convincing that the plaintiff was mistaken in his testimony upon this disputed fact, but as the question of the weight of the evidence is not before us, we are constrained to come to the conclusion that it was the duty of the trial judge, on the record as made, to submit to the jury the question whether or not, if the plaintiffs version of the accident is to be believed, that the whistle was blown at the crossing, the employees of the defendant exercised such reasonable diligence and care as they should have under the circumstances which existed at the time. If the jury believed that the engineer did see, or should have seen, the predicament that the plaintiff was in with his horse in close proximity to the track, and notwithstanding seeing the situation as it was presented, he blew the whistle on the crossing in close proximity to the horse, and this frightened the horse and caused the accident, we think that actionable negligence on the part of the defendant was made out. For a general discussion of.the law on this subject, see note in 3 L. R. A. (N. S.) p. 111. The rule is well stated by Mr. Justice Blair in Foster v. Lumber Co., 141 Mich. 316, where it was said:

“It is well settled that a railroad company is not liable for the fright of horses resulting from the ordinary use, movement, or situation of its engines, cars, or trains, and that it has a lawful right to make all such noises as are necessarily connected therewith. It may, however, become liable if in such use of its property it does anything unusual or unnecessary, naturally calculated to frighten ordinarily well-broken and gentle horses. 2 Thompson on Negligence, § 1908; Hinchman v. Railroad Co., 136 Mich. 341 [65 L. R. A. 553]; Geveke v. Railroad Co., 57 Mich. 589; Dunn v. Railroad Co., 124 N. C. 252 [32 S. E. 711]; Petersburg R. C. v. Hite, 81 Va. 767.”

See, also, Dotson v. Railroad Co., 187 Mich. 650, at p. 653.

There is no merit in the contention of the plaintiff that there was actionable negligence on the part of the defendant in not having blown the whistle at the distance fixed by the Michigan statute from the crossing (2 Comp. Laws 1915, § 8302), for the reason that while the plaintiff himself testified that he heard no whistle blown until the train got to the highway, he says that he did see the train coming at a distance at least equal to the distance at which- it was obligatory to have the whistle blown in accordance with the statute. Having seen the train at that distance, the failure to blow the whistle could not in any way be said to have been the proximate cause of the accident. He testified that the train might have been a quarter of a mile away when he first saw it, and then he immediately started for his horse to get hold of it. Whether or not, under the circumstances, he acted as a reasonably pru-. dent person should have acted, and whether under the circumstances any negligence on his part contributed to the accident, were questions which were also proper to submit to the jury.

Upon a review of this record we are satisfied that the negligence of the defendant and the contributory negligence of the plaintiff were questions which should have been submitted to the jury with proper instructions. The judgment is therefore reversed and a new trial granted, with costs to the appellant.

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


source: Caselaw Access Project

author: Kuhn, J.

license: Public Domain

text:
    ALBRECHT v. ST. HEDWIG’S ROMAN CATHOLIC BENEVOLENT SOCIETY.
    1. Appeal and Error — Writ of Error — Application to' Supreme Court — Practice—Nuno Pro Tunc allowance.
    It having been the practice, in interpreting Act No. 172, Pub. Acts 1917, to require application to the Supreme Court for writ of error where a verdict of no cause of action resulted, but to allow it as a matter of course where the ad damnum, clause showed a claim in excess of $500, where, in the latter case, no application was made when the writ was allowed, no motion made to dismiss, and the case has been fully heard, the writ will be allowed nuno pro tunc as if proper application had been made.
    2. Assault and Battery — Evidence—Trial—Appeal And Error.
    In an action for assault and battery, where there was.no dispute that the blood on plaintiff’s person was not washed off, and no claim made that it was the duty ’of anybody connected with the affair to do- this for plaintiff, exclusion of the question as to whether anybody made any attempt to wash the blood and see if he was injured or not, held, not prejudicial.
    3. Sámií — Evidence—Res Gest® — Mitigation of Damages.
    In such action, it was proper to show the plaintiff’s acts, his conduct, and his language, at the time of the fight or immediately prior thereto, as a part of the res gestes, in mitigation of damages.
    4. Pleading — Election—Joint’ ‘Defendants — Misjoinder of Parties.
    Where the declaration charged all defendants jointly with assault, but under the plaintiff’s own theory of the case it appears that there were two separate assaults, with no connection between them, and that there was no concert of action between defendants, the court below was not in error in compelling plaintiff to elect which defendant he would proceed against.
    5. Same.
    The fact that it is difficult .to separate the injury done by each from that done by the other furnishes no reason for holding that one tort-feasor should be liable for the acts of others with whom he is not acting in concert.
    Error to superior court of Grand Rapids; Dunham, J.
    Submitted January 31, 1919.
    (Docket No. 16.)
    Decided April 3, 1919.
    Case by Romauld Albrecht against St. Hedwig’s Roman Catholic Benevolent Society and others for an assault. Judgment for defendants. Plaintiff brings error.
    Affirmed.

      Richard L. Newnham, for appellant.

      Frcmk J. Powers, for appellees.
   Kuhn, J.

It is the claim of the plaintiff that on Sunday, March 4, 1917, he went to the hall of the defendant society, at about the hour of 5 o’clock, and that there, while standing at the bar and drinking beer, he got into an altercation with the defendant Wezbecki and was assaulted, being struck over the head with a beer glass. That a few minutes later he was escorted by two officers of the defendant society to the door, and it is his claim that he was by them thrown from the building, which it is his claim resulted in additional and severe injuries to him. It is the claim of the defendant society that they had no connection with the assault on the plaintiff, but that they picked up the plaintiff after he had been assaulted, took him to the door and put him out in a gentle and careful manner. Plaintiff filed a declaration charging all the defendants with jointly committing the assault and claiming the sum of $10,000 as damages. On the trial, at .the close of the testimony, the trial judge held that there were two distinct assaults, according to plaintiff’s claim, and forced the plaintiff to elect as to which of the defendants he wished to proceed against. He thereupon elected to proceed against the defendant Wezbecki. The issue being submitted to the jury, a verdict of no cause of action was rendered for the defendant.

The case being brought here by writ of error, the first point made by counsel for defendant and appellee is that no application has been made to this court for the allowance of the writ, in accordance with the provisions of Act No. 172, Pub. Acts 1917, which provides that where the judgment does not exceed in amount $500, the writ of error may issue, in the discretion of the Supreme Court, upon proper application. It appears that no application had been made at the time the writ was allowed, and it is therefore now claimed that the appeal should be dismissed. • No motion has been made to dismiss the appeal, and the case was fully heard upon its merits. Interpreting this statute, we have held that in cases where a-verdict of no cause of action results, it is necessary to make the application for an allowance of the writ in accordance with the express language of the statute. However, it has been the practice of the court, where the ad damnum clause of the declaration shows a claim in excess of $500 and a verdict of no cause of action is found by the jury, to allow the writ of error to issue as a matter of course upon application made. In view of the fact that this case has been fully presented and the peculiar situation in which the party finds himself, we have concluded to allow the writ nunc pro tunc as if a proper application had been made, and therefore proceed to determine the case upon its merits.

The first assignment of error which requires consideration relates to the court sustaining an objection to the following question asked of one of the witnesses:

“Nobody made any attempt to wash the blood and see if he was injured or not?”

There was no dispute in the record that the blood on the person of the plaintiff was not washed off. It is not claimed that it was the duty of anybody connected with the matter to perform this task, for the plaintiff, and we are unable to see how it can be said that the exclusion of this question was prejudicial to plaintiff’s case.

The next assignment of error which is discussed relates to the failure of the court to sustain the objection of plaintiff’s counsel to the question asked of the witness, Joseph Kapla:

“What, if anything, did he say about Germany?”

—to which he was allowed to answer, among other things:

“I think the Germans could go and lick anybody just like they lick the others.”

It is the claim of the defendants that the plaintiff was more or less intoxicated and was talking loud and abusively at and prior to the time of his injury. It was proper to show the plaintiff’s acts, his conduct, and his language, at the time of the fight or immediately prior thereto, as a part of the res gestee, in mitigation of damages. See Bauman v. Bean, 57 Mich. 1; Millard v. Truax, 84 Mich. 517 (22 Am. St. Rep. 705).

The tenth assignment of error is as follows:

“The court erred in compelling the said plaintiff to elect whether he would proceed against the defendant Frank Wezbecki or against the remainder of the defendants.”

We are of the opinion that there was no error on the part of the court, under the circumstances of this case, in compelling an election. The declaration in the case was a one-count declaration, charging all the defendants jointly with assaulting the plaintiff. Under the plaintiff’s own theory of the case, it is apparent that there were- two separate assaults, and it does not appear that there was any connection between the first and the second assaults, as claimed by the plaintiff. There was no concert of action between those who were charged jointly with the unlawful assaults. Plaintiff’s counsel, however, claims that they should be jointly, liable because the amount of damages done by each of the claimed assailants cannot be separated: With this contention we cannot agree. The rule is thus stated in 38 Cyc. p. 484, where it is said:

“The fact that it is difficult to separate the injury done by each from that done by the others furnishes no reason for holding that one tort feasor should be liable for the acts of others with whom he is not acting in concert.”

See Strawbridge v. Stern, 112 Mich. 16; Diel v. Kellogg, 163 Mich. 162. It should be borne in mind that in the present case the tortious acts complained of were not contemporaneous, but some time elapsed between them, and they were in no way connected, which was not true in the case of Cuddy v. Horn, 46 Mich. 596 (41 Am. Rep. 178), relied upon by plaintiff’s counsel in his brief. In that case the injury complained of was—

“caused by the contemporaneous act of two separate wrongdoers, who, though not acting in concert, yet by their simultaneous wrongful acts put in motion the. agencies which together caused a single injury; and for this the injured party could receive but a single compensation.”

We have examined the other assignments of error, but find them without merit.

The judgment is affirmed.

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


text:
    KUSHLER v. WEBER.
    1. Deeds — Description—Quantitative—Property Conveyed.
    Where deeds were executed conveying “the westerly 75 acres” of the north half of the northeast quarter of section 29, and “the easterly 5 acres” thereof, the descriptions must be considered as quantitative, and any excess over 80 acres contained in said north half of the northeast quarter of section 29 was not conveyed.
    2. Ejectment — General Issue — Defenses Available.
    In ejectment, under section 16, chap. 29, Act No. 314, Pub. Acts 1915 (3 Comp. Laws 1915, § 13183), the defense that a deed is void is available under plea of the general issue, notwithstanding Circuit Court Rule No. 23.
    3. Joint-Stock Companies — Dissolution—Statutes.
    Unless the provisions of the statute (2 Comp. Laws 1915, §§ 7957, 7958) in regard to dissolution of partnership associations were complied with, there was no legal dissolution of a partnership association.
    4. Same — Evidence—Proof.
    Introduction in evidence of a certified copy of the notice of dissolution on file in the office of the secretary of State, held, insufficient proof of legal dissolution.
    5. Trial — Evidence—Documentary Evidence — Exclusion.
    A paper does not appear to be in evidence where the court refused to permit defendant’s counsel to introduce it until plaintiff had finished his side of the case, and apparently no further effort was made to have it received.
    6. Joint-Stock Companies — Dissolution—Title to Land After Dissolution.
    If a partnership association was properly and legally dissolved, the title to a strip of land owned by it thereby vested in the members in proportion to their respective interests.
    7. Same — Deeds—Execution by Members.
    A deed to a strip of land executed by both a partnership association and all the persons who were members thereof at the time of its alleged dissolution passed title whether it was legally dissolved or not.

      8. Ejectment — Improvements—Limitation—Evidence—Statutes.
    In ejectment, evidence of occupation for six years, or for less than six years under color of title, entitling defendants to recover for improvements under 3 Comp. Laws 1915, § 13211, held, insufficient.
    9. Same — Recovery for Improvements.
    Defendants were not entitled to recover the value of alleged improvements, where the evidence showed that because of their location and inability to use them they were a detriment rather than a benefit.
    Error to Oakland; Smith, J.
    Submitted January 7, 1919.
    (Docket No. 5.)
    Decided April 3, 1919.
    Ejectment by Adolph Kushler and another against John H. Weber and another. Judgment for plaintiffs on a directed verdict. Defendants bring error.
    Affirmed.

      Fred A. Baker (John H. Patterson, of counsel), for appellants.

      Peter B. Bromley, for appellees.
    In April, 1906, the Oakland Place Land Company, Limited (a limited partnership association), was the owner of the north % of the northeast % of section 29, in town 1 north, range 11 east, being the township of Royal Oak in Oakland county. On April 6, 1906, the said company executed two deeds, one to Maurice M. Kenney and wife, conveying the westerly 75 acres of said land, and the other to William C. Connolly and wife, conveying the easterly 5 acres thereof. It was subsequently discovered that the north % of the northeast % of section 29 contained about one and three-quarters acres more than the 80 acres it was supposed to contain. The defendants in this suit, who had become the owners of the 75-acre parcel by mesne conveyance, held possession of this 1%-acre strip under a claim of title, and the plaintiffs herein, then the owners of the 5-acre parcel by mesne conveyances, brought an action of ejectment against them to recover said strip of land, and obtained judgment under a directed verdict. The matter having been brought, before this court on appeal (See Kushler v. Weber, 182 Mich. 224), the judgment was reversed and a new trial ordered. Before a second trial was had, however, plaintiffs discontinued the suit, and after obtaining' some further conveyances, commenced a new action of ejectment against the same defendants for the recovery of the same strip of land, and it is this case which is now before us on writ of error from judgment obtained by plaintiffs on a directed verdict.
    Upon the trial of this case, the plaintiffs introduced in evidence the following instruments:
    1. Warranty deed by The Citizens’ Savings Bank of Detroit, Michigan, to Mark B. Stevens, dated May 6, 1897, recorded May 14, 1897, conveying the north half of the northeast quarter of section 29, town 1 north, range 11 east, and other land.
    2. Warranty deed by Mark B. Stevens and wife to The Oakland Place Land Company, Limited, dated June 28, 1898, recorded June 30, 1898, conveying the north half of the northeast quarter of section 29, town 1 north, range 11 east, and other land.
    3. Warranty deed by The Oakland Place Land Company, Limited, to William C. Connolly and Emma Connolly, his wife, dated April 6, 1906, recorded May 1, 1908, conveying the easterly 5 acres of the north half of the northeast quarter of section 29, town 1 north, range 11 east, and other land.
    4. Quitclaim deed by The Oakland Place Land Company, Limited, Margaret G. Jewell, as widow and residuary legatee and devisee- under the last will and testament of William F. Jewell, deceased, Mark B. Stevens and George S. Field, individually and as members of the Oakland Place Land Company, Limited, and Emily G. Stevens, wife of Mark B. Stevens, and Amy E. Field, wife of George S. Field, to The Citizens’ Savings Bank, of Detroit, Michigan, dated October 22, 1915, recorded November 27, 1915, conveying the north half of the northeast quarter, excepting the westerly 75 acres thereof, of section. 29, town 1 north, of range 11 east. This deed contains a recital that it is made in pursuance of a resolution adopted by the Oakland Place Land Company, Limited, by its board of directors, on May 9,, 1906.
    5. Quitclaim deed by The Citizens’ Savings Bank, of Detroit, Michigan, to Adolph Kushler and Anna Kushler, his wife, dated October 23, 1915, recorded November 27, 1915, conveying the north half of the northeast quarter, excepting the westerly 75 acres thereof, of section 29, town 1 north, of range 11 east.
    6. Quitclaim deed by William C. Connolly and Emma Connolly, his wife, to Adolph Kushler and Anna Kushler, his wife, dated January 5, 1916, recorded January 10, 1916, conveying the north half of the northeast quarter, excepting the westerly 75 acres thereof, of section 29, town 1 north, of range. 11 east.
    7. Warranty deed by The Oakland Place Land Company, Limited, to Maurice M. Kenney and Letitia Kenney, his wife, dated April 6, 1906, recorded April 11, 1906, conveying the westerly 75 acres of the north half of the northeast quarter of section 29, township of Royal Oak, Oakland county, Michigan.
    8. Warranty deed by Letitia Kenney, survivor of herself and Maurice M. Kenney, to John H. Weber and Sophia Weber, his wife, dated March 1, 1911, recorded March 1, 1911, conveying the westerly 75 acres, more or less, of the north half of the northeast quarter of section 29, township of Royal Oak, Oakland county, Michigan.
    The resolution referred to in deed numbered 4 above was adopted at a meeting of the directors and stockholders of the Oakland Place Land Company, Limited, held on May 18, 1906, and reads as follows:
    “Resolved that this company sell and convey the balance of the Oakland county farm to the Citizens’ Savings Bank for $12,000, and that the officers of this company sign all necessary papers to convey certain property and take up bonds of this company for $12,-000.”
    Though not introduced by plaintiffs as part of their chain of title, it appears in evidence that plaintiffs had obtained title to the easterly five acres of the north half of the northeast quarter of section 29 as early as August 28, 1912, by means of the following conveyances :

      (a) Deed from William C. Connolly and Emma Connolly, his wife, to Frank F. Leska and Matilda, his wife, and Adolph Kushler and Anna, his wife, dated October 22, 1906, recorded November 10, 1906, conveying land commencing at the northeast corner of the northeast quarter of section 29, town 1 north, range 11 east; thence westerly on the section line 164 feet; thence southerly on a line parallel with the east line of said section, 1,331 feet; thence easterly parallel with the north section line 164 feet to the east line of said section; thence northerly on the section line, 1,331 feet to the place of beginning, containing 5 acres.
    (5) Deed from Frank Leska and Matilda Leska, his wife, to Adolph Kushler and Anna Kushler, his wife, dated August 28, 1912, recorded September 2, 1913, conveying lot 13 of the survey and unrecorded plat of the west half of the northeast quarter of section 28, the west half of the east half of the northwest quarter of section 28, and the easterly 5 acres of the north half of the northeast quarter of section 29, all in town 1 north, range 11 east, 125 acres more or less; the said lot 13 containing 5 acres.
   Kuhn, J.

(after stating the facts). Counsel for appellants ask for a reversal of the judgment in this case, on the following grounds:

(1) That the Oakland Place Land Company, Limited, in the transaction evidenced by its deeds of April 6, 1906, to the Connollys and the Kenneys respectively (Nos. 3 and 7 above), did not intend to retain, and did not in fact retain title to any portion of the north half of the northeast quarter of section 29, but that, under the descriptions used in said deeds, construed in the light of the understanding- of all the parties and of the surrounding circumstances, the excess of the land over 80 acres should be apportioned between the two parcels thereby conveyed, 5/80 to the one and 75/80 to the other. That, therefore, the company’s deed of' October -22, 1915, to the Citizens’ Savings Bank, of Detroit, Michigan, and the deed by the bank to plaintiffs, conveyed nothing.

(2) That the deed of October 22, 1915, by the Oakland Place Land Company, Limited, to the Citizens’ Savings Bank was insufficient to pass any title or interest, because the said company had been dissolved nearly seven years prior to the date of said deed, and it appears from the resolution of dissolution that the company then had no property and assets to distribute or dispose of.

1. The first of these questions was decided adversely to appellants’ contention in Kushler v. Weber, 182 Mich. 224, where we said, at page 230:

<vThe easterly 5 acres is a definite description by quantity, and we think the words ‘more or less’ must be applied to the land on section 28. The easterly 5 acres are specifically described, and the description must be considered as a quantitative one. This is equally true of the description of the west 75 acres.”

No title, therefore, to the disputed strip, or any portion of it, passed from the Oakland Place Land Company, Limited, by either of its two deeds of April 6, 1906, conveying the 5-acre parcel and the 75-acre parcel respectively (Nos. 3 and 7 above).

2. In this suit, however, plaintiffs, by virtue of the deed of the Oakland Place Land Company, Limited, and others, to the Citizens’ Savings Bank and the deed of said bank to plaintiffs, dated respectively October 22 and October 23, 1915 (Nos. 4 and 5 above), have shown a record title to the strip of land in question, and unless appellants’ second contention is well founded, the judgment of the court below must be affirmed.

Counsel for appellees contends that the defendants should have given special notice of the affirmative defense that the deed of the Oakland Place Land Company, Limited, to the bank was void, because of the provisions of Circuit Court Rule No. 23, § 2. As an answer to this contention it is only necessary to call attention to the fact that this is an action of ejectment, and under section 16 of chapter 29 of Act No. 314, Public Acts of 1915 (the judicature act, 3 Comp. Laws 1915, § 13183), this defense might properly be-urged under the plea of the general issue.

We do not think the'record shows sufficient evidence of the dissolution of the Oakland Place Land Company, Limited. Unless the provisions of the statute in that regard have been complied with, there has been no legal dissolution. The introduction in evidence of a certified copy of the notice of dissolution on file in the office of the secretary of State is not sufficient proof that a dissolution has been legally effected. And even this certified copy does not appear to be in evidence. After the court refused to permit defendants’ counsel to introduce it until plaintiffs had finished their side of the case, apparently no further effort was made to have it received in evidence. The only other reference to a dissolution which we are able to find in the record is a statement by Mr. Frank F. Tillotson, former cashier of the Citizens’ Savings Bank (but not a member of the Oakland Place Land Company, Limited) in the following words:

■ “The Oakland Place Land Company sold to the Citizens’ Bank, just prior to the time they dissolved and went out of business, .all their remaining assets,” etc.,

—but upon being asked:

■’Do you know of your own knowledge after the passage of this resolution, a certified copy of which you have seen, that there was ever any notice published in the newspaper in the city of Detroit of the dissolution of the copartnership?”

—he replied:

“I do not know whether there was or not. Mr. Field, who was secretary of the company, is the attorney and also the bank’s attorney, and all legal matters were left to him.”

No further effort appears to have been made to throw light on this question. The provisions of the statute relative to voluntary dissolutions of partnership associations limited (2 Comp. Laws 1915, §§ 7957, 7958) are as follows:

“(7957)' Sec. 8. Such association may be dissolved:
“First, * * * .
“Second, Whenever by vote of a majority in number and value of interest it shall be so determined, and notice of such winding up shall be given by publication in two newspapers published in the proper city or county at least four consecutive weeks; and immediately upon the commencement of said advertising said association shall cease to carry on its business, except so far as may be required for the beneficial winding up thereof.
“(7958) Sec. 9. When any such partnership association shall be dissolved by the voluntary action thereof, its property shall be applied and distributed as follows:
“First, To the payment of all debts for wages of labor;
“Second, To the satisfaction of its other liabilities and indebtedness;
“Third, .After payment thereof the same shall be distributed to and among the members thereof, in proportion to their respective interests, in the following manner:
“Fourth, Three liquidating trustees shall be elected by the members of the association, who shall have full power and authority to wind up the concern, and distribute the net assets thereof among the members, under the direction of the circuit court of the proper county.”

If the association was properly and legally dissolved, the title to the strip of land in question thereby vested in the persons who were members at the time of dissolution in proportion to their respective interests. If the association had not been legally dissolved, the title remained in the association. The deed of October 22, 1915, to the Citizens’ Savings Bank was executed by both the Oakland Place Land Company, Limited, and all the persons who were members thereof at the time of the alleged dissolution. We think the deed was sufficient to pass the title in either event.

3. The other assignments of error, which counsel for defendants say in their brief they insist upon, but do not argue, relate to the failure of the charge of the court to instruct the jury with reference to the increased value of the premises by reason of the construction of buildings and other improvements thereon. Section 44, chapter 29 of the judicature act (3 Comp. Laws 1915, § 13211), provides as follows:

“Whenever in any action of ejectment the plaintiff, or any one or more of the plaintiffs, if there be more than one, shall recover, or recover any undivided interest in the premises, the defendant or defendants shall be allowed compensation in proportion to such recovery for buildings and improvements on the premises recovered, erected, or made by him or them, by any person through whom he or they claim title to the extent that such buildings and improvements shall increase the present value of said premises: Provided, The defendant or defendants, or the person through whom he or they claim title, shall have been in the actual, peaceable occupation of the premises recovered, for six years before the commencement of the action: Or Provided, The same shall have been so occupied for a less time than six years under a color of title and in good faith.”

It is apparent, therefore, that it was incumbent upon the defendants to show, in order to avail themselves of the value of any improvements, that defendants either were in actual, peaceable occupation of the premises for the period of six years, or upward, before the commencement of the action, or that they occupied it for a less period under color of title and in good faith. The declaration in the first suit between these parties was filed on September 8, 1913, and the record discloses that the first improvement was made upon the premises either in 1907 or 1908, the date not being fixed positively, and it is impossible to tell whether it was before September 8, 1907, or not. This improvement consisted of a small part of a barn extending into the disputed strip. We are satisfied from a reading of this record that there was not sufficient evidence to have warranted the submission to the jury of the question whether or not the property was occupied for six years before the commencement of the suit, nor are we of the opinion that the defendants had any color of title to the disputed strip. Moreover, we think it conclusively shown that the alleged improvements were a damage and a detriment to the property rather than a benefit, because of their location and the inability to use them, and that therefore the improvements added nothing to the value of the land. We are therefore of the.opinion that no prejudicial error was committed by the court in failing to give the requests as presented with reference to this phase of the case.

The judgment is affirmed.

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


text:
    GILLETT v. MICHIGAN UNITED TRACTION CO.
    1. Negligence — Street Railways — Personal Injuries — Contributory Negligence — Presumptions—Eyewitnesses.
    In an action against a street railway company for personal injuries caused by a collision between plaintiff’s automobile and an interurban car, where plaintiff started from the curb and drove his automobile in, front of the car, and no witness was able to say whether or not plaintiff ' looked to see if a car was coming, and he testified that his mind was a blank as to what happened, the presumption that, in the absence of eyewitnesses, plaintiff was free from contributory negligence, held, not applicable.
    2. Evidence — Presumptions—Weight Against Evidence.
    A rebuttable or prima facie presumption has no weight as evidence; it may establish a prima facie case, but, if challenged by rebutting evidence, the presumption cannot be weighed against the evidence.
    3. Negligence — Contributory Negligence— Presumptions — Evidence — Question for Jury.
    When direct, positive, and credible rebutting evidence is introduced, the presumption of due care ceases to operate; but when circumstantial evidence of doubtful value is the only rebutting evidence offered, the question should be submitted to the jury.
    4. Same.
    It is only in cases where direct testimony of credible eyewitnesses as to the negligence of deceased is uncontradicted that the court is warranted in directing a verdict for the defendant on the ground of decedent’s contributory negligence; if the testimony is contradicted or rendered improbable by the circumstances, or if the credibility of the witnesses is attacked, the question must be submitted to the jury; the evidence to be weighed unaided by the • presumption..
    5. Same — Evidence—Due Care — Presumptions.
    If the jury decide that th.e testimony tending to show negligence on the part of the deceased has been overcome, the presumption of due care will still operate.

      6. Same — Contributory Negligence — Presumptions—Overcoming Presumptions.
    The real test as to whether the presumption of due care has been overcome is whether or not evidence tending to show contributory negligence, be it direct or circumstantial, is so conclusive that reasonable and unprejudiced minds could not fail to be convinced that decedent was careless.

      1. Same — Evidence—Conclusiveness—Directed Verdict.
    Where there was evidence that if plaintiff had looked he would have seen the car coming and realized his danger, from which an inference might properly be drawn that he did not see the car, and that either he did not look, or that he did look but carelessly drove upon the track, and the inevitable conclusion to which all unprejudiced minds must come is that plaintiff was clearly guilty of contributory negligence under the peculiar facts in the case, the trial judge was justified in directing a verdict for defendant.
    Error to Calhoun; North, J.
    Submitted January 15, 1919.
    (Docket No. 36.)
    Decided April 3, 1919.
    Case by Melvin J. Gillett against the Michigan United Traction Company for personal injuries. Judgment for defendant on a directed verdict. Plaintiff •brings error.
    Affirmed.

      Price & Whiting, for appellant.

      Sanford W. Ladd (Warren, Cady, Ladd & Hill, of counsel), for appellee.
   Kuhn, J.

Plaintiff has brought this action to recover damages for injuries received in a collision between his automobile and an interurban car of the defendant company,- which occurred on State street in the city of Marshall, under the following circumstances: Plaintiff had left his automobile standing, facing west, close to the curb on the north side of State street in the block between Madison and Jefferson streets, while he went into Bently’s grocery store on an errand. It was a two-seated Ford car, the top was up, and some, if not all, the side curtains were on. Upon leaving the store, he got into the car and attempted to start, but had some difficulty with his engine, and two young men who happened to be passing stopped and cranked it for him several times before he succeeded in getting under headway. He then immediately turned his car from the curb, making about as short a turn as was possible, and drove directly onto the street car track, where his machine was struck by a west-bound interurban car and carried nearly to Jefferson street. Plaintiff was severely injured by the impact. State street from curb to curb at this point is 66 feet wide, and the distance from the curb to the nearest rail of the street car track is 30.5 feet. Plaintiff testified that he had no recollection whatever of the accident, but that his mind was a complete blank as to what happened from the time he stepped out of the grocery store onto the sidewalk to the time he found himself at home in bed, suffering from his injuries. The testimony varied somewhat concerning the speed of the interurban car, ranging from that given by the motorman of 12 to 15 miles an hour to that of two or three persons who witnessed the accident from ’the sidewalk or store windows, who estimated it at from 20 to 30 miles an hour. There was a city ordinance limiting the speed at this particular point to 10 miles an hour. All the witnesses agreed that it was a wet, slippery morning. There was a conflict in the testimony as to how far the car traveled after the collision before coming to a stop. The accident happened directly in front of Hewlett’s jewelry store, the first store west of Bently’s grocery. The motorman insisted that he stopped with the front of his car in the middle of Jefferson street. This, according to the measurements given on the blue-print, Exhibit A, would make the distance about 150 feet. Other witnesses stated that the rear of the car was either in the middle, or even with the farther curb, of Jefferson street. If this is true, the distance must have been from 210 to 280 feet, as the interurban car was shown to have been 61 feet in length. The testimony is conflicting as to whether the motorman sounded the gong before crossing Madison street, but nearly all the witnesses testified that he sounded a warning whistle while his car was crossing Madison street or a few feet beyond and as soon as it became apparent that plaintiff was going to try to cross the street. The automobile was going at a speed of 4 or 5 miles an hour, and apparently made no effort to turn aside, or to stop, or to increase its speed. None •of the witnesses were able to testify whether or not the plaintiff, either at the time he started from the ■curb or at any subsequent moment before the collision, looked back to see if a car was coming. The trial judge first submitted the case to the jury, but, when it became apparent that the jurors could not agree, called them back and directed a verdict for the defendant on the ground that plaintiff had failed to meet the burden resting upon him to prove that he was in the exercise of due care.

It is the claim of the plaintiff that the presumption of due care, which we have held may sometimes be applied in eases where the plaintiff was killed by the accident and there were no eyewitnesses, should be held also to apply to a case such as the present one where the plaintiff survives, but has no recollection whatever of the accident, and where there are no witnesses who can testify as to whether or not he fulfilled the duty of looking and listening which the law imposed upon him. This would present an interesting question if this were a case where the presumption relied upon would have operated, had the plaintiff been killed by the collision. But, in our view of the law, even if the plaintiff had met his death in the accident and an action, been brought by his personal representative against the defendant for negligently causing his death, we do not think, under the facts here shown, that such a case could properly be submitted to the jury, but are of the opinion that the court should hold, as á matter of law, that Mr. Gillett was guilty of contributory negligence. We think the fallacy of the argument of plaintiff’s counsel lies in the fact that they assume that if it cannot be shown by the positive statement of any witness that the plaintiff did not look and did not listen before attempting to cross the track, it cannot then be said that there was evidence of negligence on his part sufficient to remove the presumption of due care. Such an assumption implies two things: First, that in a case where the presumption of due care is invoked, it cannot be rebutted by circumstantial evidence, however strong-, second, that if it is established that plaintiff looked and listened, his conduct in attempting to cross ahead of the car cannot, under the circumstances, be said as a matter of law to have been negligent. There are decisions which may seem to lend support to counsel’s position, and it may be profitable briefly to consider the principles involved and the typical cases upon the subject.

It is now quite generally held by the courts that a rebuttable or prima facie presumption has no weight as evidence. It serves to establish a prima facie case, but if challenged by rebutting evidence, the presumption cannot be weighed against the evidence. Supporting evidence must be introduced, and it then becomes a question of weighing the actual evidence introduced, without giving any evidential force to the presumption itself. In 1 Elliott on Evidence, § 91, p. 114, it is said:

“It (the presumption) may be directly rebutted by such evidence, or it may be shown thereby that it was never applicable to the particular facts, for it will be found that presumptions are usually very general in their nature, and lose their force and application when the specific facts of the case are shown;”

—and further (§ 93, p. 116):

‘'A presumption operates to relieve the party in whose favor it operates from going forward in argument or evidence, and serves the purpose of a prima facie case until the other party has gone forward with his evidence, but, in itself, it is not evidence, and involves no rule as to the weight of evidence necessary to meet it. * * * It .is sometimes said that the presumption will tip the scale when the evidence is balanced. But, in truth, nothing tips the scale but evidence, and a presumption, being a legal rule or a legal conclusion, is not evidence. * * * It is not probative matter,' which may be a basis of inference and weighed and compared with other matter of a probative nature.”

See, also, 4 'Wigmore on Evidence, § 2491; 2 Best’s Principles' of Evidence (Am. Ed.), §§ 298, 299; note in 33 L. ft. A. (N. S.) 1085; Thayer’s Preliminary Treatise on Evidence (1898), Appendix B, p. 551. A discussion of this subject will also be found in Baker v. Delano, 191 Mich. 204, at p. 208.

But while this is true, it does not follow, in the case of the particular presumption here under consideration, «that immediately upon the introduction of any. evidence whatsoever tending to show negligence on the part of the deceased the presumption vanishes and that the burden then rests upon the plaintiff of establishing by affirmative evidence that decedent exercised due care in every respect. A distinction has been recognized between direct, positive and credible rebutting evidence and mere circumstantial evidence having but a slight or inconclusive tendency to rebut the presumption. When direct, positive and credible rebutting evidence is introduced, the presumption ceases to operate; but when circumstantial evidence of doubtful value is the only rebutting evidence offered, the question should be submitted to the jury, and if they decide that the circumstantial evidence should be disregarded, the presumption is still sufficient to establish plaintiff’s case as to the exercise of proper care by the deceased. Moreover, it is only in cases where direct testimony of credible eyewitnesses as to the negligence of deceased is uncontradicted, that the court is warranted in directing a verdict for the defendant on the ground of decedent’s contributory negligence. If the testimony is contradicted by other witnesses, or rendered improbable by the circumstances, or if the credibility of the witnesses is attacked, the question must be submitted to the jury, but in such case the jury must weigh merely the evidence, unaided by the presumption. If, however, the jury decide that the testimony tending to show negligence on the part of the deceased in the particular claimed has been overcome by other evidence and should be disregarded, the presumption will, of course, if necessary, still operate to establish plaintiff’s case as to the care exercised by the deceased. The attempt to rebut the presumption having failed, it still remains in force so far as may be necessary to cover any particulars not touched on by the evidence. There is no reason why an unsuccessful attempt to show the negligence of deceased in some particular respect should place upon the plaintiff the burden of proving by affirmative evidence that the deceased used due care in all respects — a burden which did not rest upon him before the attempt was made.

A case well illustrating the effect of direct rebutting evidence is Mynning v. Railroad Co., 64 Mich. 93 (8 Am. St. Rep. 804), where it was said:

“The presumption of law is that the person killed at a crossing did stop, and look and listen, and will prevail in the absence of direct testimony on the subject. But where there is affirmative, direct, and creditable testimony that the person injured went upon the track without stopping to look and listen, the presumption is rebutted and displaced. (Citing cases.) Such is the testimony in this case, and there is none to the contrary. The showing of contributory negligence is much stronger than in Pzolla v. Railroad Co., 54 Mich. 273, and we held in that case that the plaintiff was not entitled to recover because of such contributory negligence, and we affirmed the ruling of the court below in taking the case from the jury.”

And in the recent case of Baker v. Delano, supra, it was said:

“We are of the opinion that it is clear that it is the rule in this State that the presumption that a plaintiff is free from contributory negligence can be said to apply only in cases where there is an absence of any direct evidence to the contrary.”

And, again, after a review of the testimony in that case:

• “We are of the opinion that this testimony makes it clear that there were eyewitnesses of the accident who were able to, and did, give ‘direct testimony- on the subject,’ and that consequently, under the authorities above cited, the presumption relied upon by the plaintiff was removed. This testimony also makes the conclusion irresistible that if the deceased had stopped, looked, and listened, it would have been a physical impossibility for him not to have been aware of the approach of the engine, no matter whether the bell was being rung or the lights were burning. * * * We see no escape from the conclusion that the circuit judge was clearly right in holding that the deceased was guilty of contributory negligence.”

See, also, Haas v. Railroad Co., 47 Mich. 401; Rhoades v. Railway Co., 58 Mich. 263; Matta v. Railway Co., 69 Mich. 109; Underhill v. Railway Co., 81 Mich. 43; Apsey v. Railroad Co., 83 Mich. 432; Stewart v. Railroad Co., 119 Mich. 91; Graf v. Railway Co., 94 Mich. 579; Schwartz v. Railroad Co., 153 Mich. 40 (17 L. R. A. [N. S.] 1253); Folkmire v. Railways Co., 157 Mich. 159 (17 Ann Cas. 979); Gates v. Beebe, 170 Mich. 107.

The rule applicable in a case where there is no direct, positive testimony as to the negligence of the deceased person for whose death the action is brought, but where there is some circumstantial evidence tending to show negligence on his part, is thus stated by Mr. Justice COOLEY in Teipel v. Hilsendegen, 44 Mich. 461:

“In this case there were no eyewitnesses, and the injury resulted in death. The plaintiff sues as administrator of the person killed. There was some evidence of negligence on the part of the defendant, and there was some ground for an opinion that the intestate was negligent also. But the plaintiff put in such proofs of the attendant facts as were attainable under the circumstances, and from these it was by no means clear that the intestate was in fault at all. There was room for the conclusion that he was not. We think the case ought to have gone to t2xe jury.”

A recent case of this kind was Cinadar v. Railway Co., 193 Mich. 38. The plaintiff was killed by the accident, and there were no eyewitnesses who saw him immediately before he drove upon the track, though a number saw him before he passed out of view behind a box car. He was familiar with the crossing and knew a train was due. Witnesses who were at the time a block farther away from the approaching train than the deceased, testified that they distinctly heard the noise of the train and its whistle, and thp circumstances created quite a strong inference that if plaintiff had stopped the heavy coal wagon he was driving before passing into the danger zone, he must necessarily have heard the approaching train. Mr. Justice Stone, in his opinion, said:

“It can be said that the plaintiff introduced no testimony showing what care and caution decedent exercised in approaching the crossing, nor was it shown whether he stopped his horse and looked or listened. Upon the testimony as the plaintiff left it, the jury might have inferred that decedent approached the track with due care, or at least they might have relied upon the presumption of law above referred to. Was this presumption overcome by evidence? * * * It is decedent’s conduct prior to reaching the danger zone, the track, that is material, and it is urged by plaintiff that there is no direct testimony on that point, and that the presumption of law is that he did stop, look and listen. It is the claim of the plaintiff that it was impossible for decedent to have seen the train until he had cleared the extreme westerly side of the box car, and then his horse was on the track. While we consider the question of contributory negligence a close one, we are of the opinion that it cannot be said that the decedent did not exercise the care that an ordinarily prudent man would have exercised under like circumstances, and we think that the question was properly submitted to the jury.”

See, also, McWilliams v. Mills Co., 31 Mich. 274; Billings v. Breinig, 45 Mich. 65; Adams v. Iron Cliffs Co., 78 Mich. 271 (18 Am. St. Rep. 441); Jones v. Railroad Co., 127 Mich. 198; Schremms v. Railroad Co., 145 Mich. 190 (116 Am. St. Rep. 291); Richardson v. Railway Co., 176 Mich. 413.

In a few cases, however, notwithstanding there have been no eyewitnesses of the accident resulting in death and consequently no direct, positive testimony as to any negligence on the part of deceased, nevertheless the circumstances surrounding the accident as revealed by the evidence have shown so conclusively that it could not have happened without such contributory negligence, that this court has held that the presumption of due care has been entirely rebutted and displaced. A typical case of this kind is Kwiotkowski v. Railway Co., 70 Mich. 549. In that case plaintiff’s decedent attempted to cross the railroad tracks at a street crossing with which he was very familiar, on a dark, rainy evening, in front of a rapidly approaching train, with a blazing headlight which lighted the track for at least a block. No one saw the accident. It was said in the course of the opinion, written by Mr. Justice Morse:

“We cannot avoid the conclusion that the deceased did not look up or down the track, as he should have done, after passing the wood-office. If he had so looked, he must certainly have noticed the headlight of this approaching train. If he did look, he must have been careless, and attempted to cross the track when he should not have done so.
“It is true that we held in Mynning v. Railroad Co., 64 Mich. 102, that the presumption of law is that the person killed at a crossing did look and listen, in the absence of any showing to the contrary; and we have also held in other cases that, if the evidence on the part of the plaintiff fails to show any contributory negligence on the part of the person killed or injured, he is not required to go further, and negative- by direct-evidence that he was in fault, as where there are no eyewitnesses this would be impossible. But in- this case, although no person saw the deceased after he passed the wood-yard until his mangled body was found beside the track, yet the location of the track is such that the conclusion is irresistible that if Kwiotkowski had simply stopped a moment, or had looked down the track without stopping, he could have seen the headlight of the locomotive, and been warned of his danger in time to have averted it. * * * The inevitable conclusion to which all unprejudiced minds must come, being that the deceased did not look, or, if he did look, took his chances to get across the track when he ought, as a prudent man, to have stopped, the circuit judge was right in directing a verdict for the defendant.”

A more recent case of this class, and one very similar to the above in its essential features, is Guntermann v. Railroad Co., 168 Mich. 37, where Mr. Justice Brooke, in his opinion, after reviewing the salient facts, said:

“Under the facts, disclosed, the presumption that decedent acted with due care is swept away, and he should be charged with such negligence as would preclude recovery by the plaintiff. Assuming that the horse was traveling at the rate of 4 miles per hour, and the train at 40 miles per hour, when decedent was 30 feet from the track, the train was but 300 feet away, approaching with its headlight burning, and its engine bell ringing. A verdict should have- been directed for defendant.”

See, also, Grostick v. Railroad Co., 90 Mich. 594.

While the above may serve as a rough classification of the decisions relative to the presumption of due care, it will be seen that the real test in each case is whether or not the evidence tending to show contributory negligence, be it direct or circumstantial, -is so conclusive that reasonable and unprejudiced minds could not fail to be convinced that decedent was careless. If there is room for reasonable doubt, the question must be submitted to the jury. And while the" jury, in weighing the evidence, may not consider the presumption, yet if, uninfluenced by the presumption, they reach the conclusion that the evidence tending to show decedent’s negligence is not entitled to credit and should be disregarded, the presumption may then be considered as remaining in force so far as may be necessary to establish the fact that the deceased exercised proper care in all respects not expressly established by the evidence. It was not entirely displaced, but remained in abeyance pending the jury’s reaching this preliminary decision as to the credence to be given the evidence on the particular point in which negligence was claimed.

But aside from the question of the kind and amount of evidence required of the defendant to rebut the presumption under discussion, in a case where it has once become operative, it is, of course, in all cases a prerequisite to the presumption coming into operation at all that the facts established by plaintiff’s proofs show nothing in the nature of negligent conduct on the part of the deceased. As stated in Teipel v. Hilsendegen, supra:

“He (plaintiff) should put in evidence the facts and circumstances attending the injury, and if these show negligent conduct in the defendant from which the injury followed as a direct and proximate consequence, and do not show any contributory negligence in the plaintiff, a prima facie case for a jury is made out. He cannot be required to go further than this in negativing his own fault, and in many cases where there are no eyewitnesses, it would be impossible.
“Nor is it necessary that the absence of contributory negligence should be shown beyond cavil or question. If the circumstances are such that reasonable minds might draw different conclusions respecting the plaintiff’s fault, he is entitled to go to the jury upon the facts.”

But if the testimony of plaintiff’s own witnesses clearly shows the lack of proper care and precaution on the part of the deceased, the presumption then has no opportunity to come into play, and there is therefore no burden cast upon the defendant to introduce any rebutting evidence whatever. Under such circumstances, plaintiff has failed to establish even a prima facie case, and the court must direct a verdict for the defendant. This, in our view, is the situation in the case at bar, and it is therefore unnecessary for us to pass upon the question of whether or not the presumption could, under any conceivable circumstances, be held to operate where the victim of the accident survives, but has no recollection of the circumstances attending the accident.

Plaintiff’s counsel, however, rely upon the fact that not one of the eyewitnesses could testify as to whether or not he looked and listened before attempting to cross the track, and also take the position that, inasmuch as plaintiff’s car was at a full stop within the limits of the traveled portion of the street at the time that he made the decision to cross, it was not necessary again to bring it to a stop. They insist that the presumption of due care can be displaced only by “affirmative, direct and creditable testimony that the person injured went upon the track without stopping to look and listen,” and there being in this case only indirect or circumstantial evidence as to these particular points, the presumption must be considered as in force so as to require the submission of the case to the jury under the rule in Teipel v. Hilsendegen, supra. We do not think there is any merit in the contention that the only kind of direct testimony sufficient to rebut the presumption is testimony that the deceased did not stop, or look, or listen. The presumption is broader than that; it is that deceased used due care in every respect. Any direct testimony, therefore, showing a failure in any respect to use due care would displace the presumption. It cannot be disputed that in a case where the deceased had stopped and looked and listened, and had then attempted recklessly to cross in front of the car, his action would be held negligent just as much as an attempt to cross without looking or listening. In such a case, in the absence of any proof on the subject, the presumption would be that he did not attempt to cross recklessly after looking; and it is manifest that any direct testimony showing that he did so attempt recklessly to cross in front of the car must be held to remove entirely the presumption of care. Indeed, this court has often stated the rule* as to the presumption more broadly than in Mynning v. Railroad Co. Thus in Adams v. Iron Cliffs Co., 78 Mich. 271 (18 Am. St. Rep. 441), it was said:

“The presumption, in the absence of any evidence to the contrary, obtains that the deceased used ordinary care and caution in attempting the crossing”;

—and in Van Doorn v. Heap, 160 Mich. 199.

“In the absence of proof tending to show the contrary, where a person is killed by an accident to which there were no eyewitnesses, the presumption of the law is that he was in the exercise of due care.” •

* But even if we were to concede the correctness of plaintiff’s contention and hold that the evidence of contributory negligence must be considered as circumstantial rather than direct, in our opinion the case would then fall under the decision in Kwiotkowski v. Railway Co., supra, and the judgment must be affirmed under the doctrine of that case.

The testimony reveals a state of facts speaking most convincingly of negligence on plaintiff’s part. Mr. Henry J. Day, a witness called by the plaintiff; testified:

“We were walking west on the north side of State street. I saw the Car leave the curb. I could not have said it was Mr. Gillett. Was not giving special attention, but I noticed the car. I was stepping off the curbing onto the pavement at the northeast corner of State and Madison streets when the interurban car passed me; stepping down off the sidewalk on Madison street onto the pavement. * * * I couldn’t say just where the interurban car was when I noticed the automobile turn and leave the curb. It was coming behind us. It was back of us when I first noticed the automobile leave the curb. When the automobile left the curb, it turned as near at right angles as an automobile would in making a turn, turned south across the track, as square as a car would. * * *
“Re-cross Examination.
“Q. You don’t know where it (the interurban car) was?
“A. No, sir. I do know that the automobile had started out and was heading from the curb. We couldn’t help but see it; there was nothing in the way. It was probably 60 feet west of Madison street.
“Q. When.its direction indicated that it was crossing the track, the interurban was right on'Madison street?
“A. No, I think not; I think it was back of that when the car left the curb.
“Q. But the automobile was headed west.
“A. Yes, sir.
“Q. But whether it was going west or going across the track you did not know, and it would not be indicated at once?
“A. Oh, no, he turned as square as anyone naturally would.
“Q. But they say it started slowly from the curb, is that right?
“A. I presume it is; I don’t know as to that. I noticed it turning.
“Q. But anyway when it became apparent that the automobile was going to cross the tracks, the interurban was just about on Madison street?
“A. Just about the same time.
“Q. Then they came together almost in an instant?
“A. Sure.”

Another of plaintiff’s witnesses, Mr. Charles C. Smith, testified-:

“1 remember tne day Mr. Gillett got hurt. At the time I was right on the northwest corner of Jefferson and State. The first thing I noticed was the street car. The whistle called my attention to it. About the same time that I heard that whistle, the automobile was in motion out near the curb and turned right square in front of the car. When I first saw the interurban car, I. should judge it was right along by Madison street. When it struck the automobile, it slid along in the neighborhood of 100 feet. * * *
“Cross-examination.
“Q. The auto turned right straight in front of the car?
A. Well, as near as I could judge, yes.
“Q. And you heard the interurban whistle when it was about on Madison street?
“A. Yes, sir.
“Q. The automobile was headed slightly diagonally west, but generally south?
“A. Yes.
“Q. The automobile did not stop until it got on the track and was hit?
“A. No.
“Q. In other words they were both headed' for a common point and they landed there at the same time?
“A. Yes, sir.
“Q. The whole thing happened in an instant almost?
“A. Yes, sir.”

And Mr. Jerome C. Bently, for the plaintiff, testified :

“I had just got out in front of my store prior to the accident. Think I waited on Mr. Gillett and stepped right out. He was in the automobile when I went out. Saw young Holtzel crank the machine and the machine started. I didn’t notice that the other young man had tried to crank it. Then Mr. Gillett started up his automobile and drove as nearly as possible straight south across the track. He had to go a little west to make the turn.
“Q. He has to get away from the curb. When he did that he went right across there?
“A. Yes. I will say that the rate of speed at which he went was not over five miles an hour. The top was up.
“Q. And from the time he started he went right on until the time he was hit?
“A. Yes, sir. I heard the interurban blow a whistle. The automobile was in front of Hewlett’s store when the car struck it. It was probably 15 or 16 feet west of where it was standing at the curb, west of my store. * * *
"T would not say that the interurban was at Madison street when it whistled. I should say that it was right at the intersection of Madison and State streets. There are two stores between my store and Madison street, the First National Bank and the Star bakery.
“Q. The exact point where the automobile was at that time you do not know, do you?
“A.'Almost on the track; going probably four or five miles an hour. It did not stop at any time. The interurban was going 20 or 25 miles an hour. They were both headed for the collision point.”

Mr. Harry A. Hewlett, another of plaintiff’s witnesses, testified:

“Am in the jewelry business. My place of business is the first store west of the Bently grocery store. I remember the day when Mr. Gillett got hurt. I was sitting at a bench at the time at the front window at the west side of my store. I had a view of the street. I was working on a watch, and I saw Mr. Gillett drive up in front of Bently’s grocery store and go inside and come out again. I noticed the boys were cranking the machine. After the machine had started, I, of course, naturally looked at my work again. And just then I heard this sharp whistle and I glanced and I judged the car was probably in front of the Star bakery when I glanced up, and in an instant it hit Mr. Gillett’s automobile. The interurban hit Mr. Gillett’s car directly in front of my west window, almost in front of the sign post there. I didn’t hear any signal from the interurban before this sharp whistle that I spoke of. * * *
“I first observed the interurban when the whistle blew in front of the Star bakery, and saw it moving until it hit the automobile, but did not continue to observe it after that; didn’t see the interurban stop, because I rushed right back to get my hat and go out there. The distance that I saw the interurban move would be about 44 feet. * * *
“Cross-examination.
“His car was headed almost directly south when I saw him. When they struck him he was going across the track.
“Q. And had gone west probably as much as fifteen feet?
“A. Where he had started from? It is better than that, it would be twenty-two feet, because those buildings are twenty-two feet.”

For the defendant, Mr. Arkell Partain, the motorman, testified:

“Q. Did you see this automobile?
“A. I saw it when it started up.
“Q. About where were you when it started up?
“A. At Madison street. It started west. It turned directly across the street.
“Q. What did you do?
“A. I first rung the air gong when I first saw it first move. Then I see the man was going to cross the street and I blew the whistle and threw on the emergency air at the same time. * * * The brakes were working. I should say my car was traveling from 12 to 15 miles an hour at the outside. It was a misty day, slippery. The condition of the track was very poor, slippery. When I say the condition of the track was very poor, I mean it was poor for stopping, starting, etc. * * *
“Q. Now tell us all that you saw about that car and everything that you discovered as you came down the street.
“A. Well, I saw the wheels of the car begin to turn and I immediately rang the gong and at the same time I noticed that he was going to cross the street as soon as he could and then I blew the whistle and threw the emergency air on. * * *
“Q. Whereabouts on Madison street were you when you rang the gong, before you blew the whistle?
“A. I was right in the middle of the street when I rung it, but I had rung the gong for the crossing before that.
“Q. How far did you go after ringing the gong in the middle of the street before you blew the whistle?
“A. Why, immediately as soon as I saw that he was turning away from the curb to go across the street, I blew the whistle and threw on the emergency air brake at the same time.
“Q. Whereabouts would you say that you were when you applied your emergency? That would be the front end of the car.
“A. Possibly fifteen or twenty feet past the street.
“Q. Where was the automobile then?
“A. The automobile was going right directly across the street.
“Q. Whereabouts with reference to the track?
“A. Well, I should say that he was twenty or twenty-five feet from the track.
“Q. How fast was he going in your judgment?
“A. Well, he wasn’t going very fast; I should say about five miles an hour. * * *
“I hit the automobile, I would say, just as near the center as could be. The length of it was directly across the track. I should say that the couplers struck the automobile first.”

It must be remembered that State street is very wide and that it was 30.5 feet from the curb to the nearest rail of the track. The automobile, while traveling this distance, also moved in a curve westerly till it was 15 or 20 feet west of the place from which it started. It must, therefore, have traveled at least 40 feet before the front of the machine reached the first rail. Before it would have been clear of the interurban car on the other side of the track, it would have had to travel the length of the automobile and the*, width of the track in addition. It clearly appears, from the testimony of the eyewitnesses as to plaintiff’s, conduct that, after leaving the curb, he did not stop, again until he was struck by the approaching car.. Their testimony conclusively shows that the automobile, as it approached the track, neither slackened nor accelerated its speed, but continued at a speed of about five miles an hour until the collision, from which fact an inference might properly be drawn that the plaintiff did not see the car at all. It was his duty, under the circumstances, not only to look, but to look just before entering the danger zone, so as to make sure that it was safe to cross the track. It is. clear that if at this point he had looked, he would have realized the. danger from the approaching car, which, under the testimony in this record, was then not to exceed 80 feet distant, and he would undoubtedly have made some effort to avoid the collision. The other alternative is that he did look, but carelessly and without any regard for his own safety drove upon the track. The inevitable conclusion to which all unprejudiced minds must come is that in either event plaintiff was clearly guilty of contributory negligence under the peculiar facts in this case, and that the trial judge was fully justified, and acted properly, in directing a verdict for the defendant.

The judgment is therefore affirmed.

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


author: Ostrander, J.

text:
    CAMPBELL v. CUMMER-DIGGINS CO.
    Master and Servant — Workmen's Compensation Law — Compensation, Basis op Award.
    In proceedings under the workmen’s compensation act, where the evidence is undisputed that for four years immediately preceding his injuries deceased had worked as a carpenter, but there was no evidence upon which to base a finding of his average daily wage or of the average annual earnings of carpenters in that vicinity, an award of compensation under the 300-day rule, based upon the earnings of deceased for the six weeks he was in the employment of defendant, held,, erroneous, and cause remanded for further proceedings.
    Certiorari to Industrial Accident Board.
    Submitted January 29, 1919.
    (Docket No. 23.)
    Decided April 3, 1919.
    Jennie Campbell presented her claim for compensation against the Cummer-Diggihs Company for the accidental death of her husband in defendant’s employ. From an order awarding compensation, defendant brings certiorari.
    Reversed, and remanded.

      Fred C. Wetmore, for appellant.

      Gaffney, Miltner & Millington, for appellee.
   Ostrander, J.

The injury was received in November, 1916, and the claimant’s decedent died as a result thereof. The parties agreed that compensation should be paid the claimant at the rate of $6.25 a week for 300 weeks. This agreement being submitted to the industrial accident board, they declined to approve it. There was an arbitration, and an award of $7.93 per week was made. This award was affirmed by the full board. Whether it is the proper award is the only question involved. The board found:

“(A) That Edward Campbell, the deceased employee, was not working in the employment in which he was injured for practically or substantially the whole of the year immediately preceding his injury; and that the compensation in this case should not be computed under the first classification mentioned in the And/rejwsld Case.
“(B) That Edward Campbell, the deceased employee, had not worked in the employment in which he was working at the time of the accident, either for the respondent employer or any other employer, during substantially the whole of the year immediately preceding his injury.
“(C) That during a substantial portion of the year immediately preceding the injury which caused the death of Edward Campbell he was working for himself ; and that the record does not show what his earnings were when he worked for himself.
“(D) That this case is not a case in which none of the first three classifications mentioned in the Andrejwski Case can reasonably and fairly be applied; and that it does not fall within the fourth classification mentioned in said case.
“(E) That this case does fall within the so-called ‘three hundred day rule’ contained in the statute prior to the amendment which took effect August 10, 1917; and that the proper method of arriving at compensation in this case is to multiply the daily wage by three hundred (300), divide that by fifty-two (52) to get the average weekly wage, and then divide the average weekly wage by two (2) to get the rate of compensation.
“(F) That the daily wage as agreed upon at the arbitration was two dollars and seventy-five cents ($2.75); and that three hundred (300) times two dollars and seventy-five cents ($2.75) is eight hundred and twenty-five dollars ($825.00) ; and that one-fifty-second (1-52) of eight hundred and twenty-five dollars ($825.00) is fifteen dollars and eighty-six cents ($15.86) which is the average weekly wage the injured employee was receiving at the time of his injury and death; and that one-half (Va) of that is the sum of seven dollars and ninety-three cents ($7.93), which is the proper compensation rate in this case.”

It will be perceived that in applying the 300-day rule the board took no account of the average daily wage of the claimant’s decedent, or of the average annual earnings of carpenters, but took account only of the wages he was receiving at the time he was im jured, and for six weeks prior thereto, from the respondent. The record does not show any agreement at the arbitration, or elsewhere, as to the daily wage except for the period named. It is undisputed that when he was injured and for four years immediately preceding that time claimant’s decedent had'no other employment than that of carpenter, unless it should be said that while performing certain contracts he is said to have made he was. not employed as a carpenter. It, of course, is immaterial how many employers he had during the last or any year if his employment was the same, viz., that of carpenter. The record affords no information upon the subject of his contracts for the year preceding his death; indeed, it is not clear that during that year he made and performed any contract. The man who worked with him for the last four years testified:

“We took contracts but we didn’t contract very steadily. We would take a building by the job and do that and maybe the next one would be by the day, and that is the way we did.”

The claimant testified:

“He was employed during the last four or five years before his death at carpenter work and contracting.”

The record further shows, without dispute, that carpenters, in Cadillac, where the deceased lived, work all the .year at their employment if they can find work to do, but that in the winter season outside work is not generally practicable. This may be said to be the rule in this latitude. Two months or more in .the winter are dull months for those in the building trades, although it is common knowledge that inside finishing and repairing of buildings may be and is carried on during the winter. It is a fair inference from the testimony that in Cadillac carpenters are usually idle for the most part for two or more months in the winter.

Findings A, B, and C of the board, so far as they relate to employment, rest upon the testimony referred to. In any event, there is none 'which contradicts it. The record shows, too, by the testimony of the man who worked with him that during the last four years before the injury occurred “the rate of wages paid was thirty cents and ten hours constituted a day’s work.”

The findings A and B are not supported by testimony because the testimony does not show, and there is none supporting the inference, that the deceased was not working substantially the whole of the year preceding the injury in the employment (carpenter) in which he was working when injured. The finding C is also unsupported except as to the fact that during a substantial portion of the year immediately preceding the injury the deceased was working for himself.

What is the meaning of that part of finding C which reads:

“That during a substantial portion of the year immediately preceding the injury which caused the death of Edward Campbell he was working for himself?”

If it means that he was working by the job, and not by the day, the testimony does not support the finding; because, as has been pointed out, there is no testimony from which it can be found what, if any, portion of the time he was employed in doing work by the job.

We think the rule generally to be applied in cases like this is the one first laid down in the statute, namely, that the fifty-second part of the average annual earnings is the average weekly wages. One may be forced to apply the fourth rule — see Andrejwski v. Wolverine Coal Co., 182 Mich. 298 (Ann. Cas. 1916D, 724) — because none of the others can be reasonably applied. It appears that claimant’s decedent here sometimes took a building by the job. The natural inference from this language, and perhaps the necessary one, is that he furnished the materials .as well as labor for a building. But, as has been pointed out, the testimony does not show whether a large or a very small proportion of the time was employed in job work, and does not show with certainty that during the last year any jobs were taken.

The statute, as we said in Andrejwski v. Wolverine Coal Co., “did in fact make provision which applied to all cases of such injuries and deaths occurring in all employments.”

The committee of arbitration and the industrial accident board act, necessarily, upon the evidence produced to them. We realize the difficulty which arises in cases like this one in applying the statute rule. But we think that here it is a matter of failure of proof and of proof which the respondent company is not in a position to produce. The rules of the statute are based upon the discovery of the amount of average annual earnings of the injured employee. The testimony does not furnish a complete basis for making this discovery. The fourth rule is:

* * * “In cases where the foregoing methods of arriving at the average annual earnings of the injured employee cannot reasonably and fairly be applied, such annual earnings shall be taken at such sum as, having regard to the previous earnings of the injured employee, and of other employees of the same * * * class, working in the same * * * employment, in the same * * * locality, shall reasonably represent the annual earning capacity of the injured employee at the time of the accident in the employment in which he was working at such time.” * * * 2 Comp. Laws 1915, § 5441. •

What the board did not do was to discover and state the average or any annual earning capacity of the deceased employee, or that of a carpenter working in Cadillac. We are of opinion that from the evidence produced it is not possible to state, with certainty, the average or any annual earning capacity of the injured man, and the necessary evidence is not in the possession of the respondent. There is a failure of evidence for which respondent is not responsible. We agree with counsel for respondent that it is unfair, upon this record,—

“to hold that Mr. Campbell’s temporary employment for a period of six weeks by the defendant should automatically put him on a full time basis as to compensation under the statute.”

It is not, we think, improper to suggest that probably evidence may easily be produced to show the average earning capacity of a carpenter in Cadillac. It is not unlikely that the witness, Mr. Ready, who worked with the deceased during the last four years of his life, can, from memory, furnish data from which it can be ascertained whether deceased worked any of the time by the job during the last year; can, in any event, furnish data for ascertaining the average-annual earnings of a carpenter in Cadillac. Engberg v. Mining Co., 201 Mich. 570.

The award must be set aside and the cause remanded for further proceedings. The costs of this appeal will be evenly divided between the parties.

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