text:
    HERSHEY v. DETROIT UNITED RAILWAY.
    1. Pleading — Declaration—Counts—Subsequent Negligence.
    In an action against a street railway company for injuries resulting in the death of plaintiff’s decedent, where the declaration had no count declaring upon the subsequent negligence of the defendant, that question cannot be considered.
    2. Appeal and Error — Evidence—Inferences—Directed Verdict.
    In deciding the question as to whether the trial judge was justified in directing a verdict for the defendant on the ground that decedent was guilty of contributory negligence, the Supreme Court must give the plaintiff the most favorable inferences that may be fairly drawn from the testimony.

      3. Street Railways — Personal Injuries — Contributory Negligence — Directed Verdict.
    In an action against a street railway company for injuries resulting in his death received by plaintiff’s decedent when struck by defendant’s car as he was crossing a public street in the safety zone near a public crossing, where there was testimony that as deceased left the curb, walking northeasterly, he looked to the west and when within four feet of the southerly rail he looked again both to the west and the east; that an east-bound car was approaching; that it slowed down as it approached the safety zone as though it were going to stop for some persons standing there; that the ordinance of the city required the car to stop before crossing the street when signaled by intending passengers; that without sounding the gong or bell it quickened its speed and struck deceased as he was almost across the track, the trial court was in error in directing a verdict for defendant upon the ground of contributory negligence.
    Error to Wayne; Hosmer (George S.), J.
    Submitted January 27, 1920.
    (Docket No. 97.)
    Decided February 27, 1920.
    Case by Clarence A. Hershey, administrator of the estate of John L. Hobbins, deceased, against the Detroit United Railway for the negligent killing of plaintiff’s. decedent. Judgment for defendant on a directed verdict. Plaintiff brings error.
    Reversed.

      Hugh Shepherd (William, Henry Gallagher, of counsel), for appellant.

      Corliss, Leete & Moody and A. B. Hall, for appellee.
   Moore, C. J.

This is a personal injury case. John L. Hobbins was struck by one of the defendant’s cars at the intersection of Riopelle street and Jefferson avenue, and received injuries which resulted in his death. Upon the trial no testimony on the part of defendant was introduced. At the close of the testimony for the plaintiff the defendant moved that a verdict of no cause of action be directed, upon the ground that plaintiff was guilty of contributory negligence, which motion the court granted. The case is brought here by writ of error.

Counsel for the appellant say:

“But, if deceased had been guilty of negligence it would be relieved of the character of contributory negligence by the subsequent negligence of the defendant.” .

We think this contention is not in the case as the declaration has no count declaring upon the subsequent negligence of the defendant.

Upon this record the sole question involved is whether the judge was justified in deciding as a matter of law that defendant was guilty of contributory negligence so that his representatives could not recover. In deciding that question we must of course give plaintiff the most favorable inferences that may be fairly drawn from the testimony..

Mr. Hobbins was employed- at the plant of the Detroit Screw Works, located south of Jefferson avenue, on Riopelle street. To reach his home his course would be north on Riopelle street to Jefferson avenue, and across Jefferson avenue on the east side of Riopelle street, where he would board a west-bound Jefferson avenue car.

It is claimed that when Mr. Hobbins arrived at the southeasterly corner of Jefferson avenue- and Riopelle street a group of persons was standing in the safety zone, alongside the tracks on the southwesterly corner for the purpose of boarding an approaching east-bound car, and that as he left the curbstone Mr. Hobbins looked to the west and then proceeded to within about four feet of the southerly rail, looked again to the west, then looked to the east and proceeded diagonally northeasterly toward the safety zone. It .is further claimed that while Mr. Hobbins was pursuing this course the east-bound car was approaching, that it slowed down as it approached the safety zone, as though it was going to stop for the persons standing there; that the ordinance of the city required the car to stop before crossing the street to take on intending passengers, that it did not so stop but quickened its speed and that no gong or bell was sounded; that it overtook Mr. Hobbins as he was almost across the track.

One of the witifesses testified in part:

“On this day I was standing right in the safety zone, alongside the street car track. There were others there, I don’t know how many. While standing there, I first noticed an east-bound car about a half a block 'away. I intended tp board it, and watched it as it approached, and saw that it slackened its speed to the extent that I thought it was going to stop. I prepared to board it, but it did not stop opposite the safety zone, the trailer reached the center of Riopelle street before it stopped. The ear had a trailer. When the car stopped someone left it and I boarded it. I did not know Hobbins, and did not see him before or after the accident. As the car approached me and passed me, it did not ring its gong at all.”

Cross-examination.

“By Mr. Hall: What I mean to say is I did not hear the gong rung. I do not mean to say that I did not notice it. I mean to swear that the gong was not sounded. He did not ring the gong.”

Another witness testified in part:

“I quit work this day at five o’clock and went to Riopelle and Jefferson to take a'west-bound car. I went to the safety zone on the east side of Riopelle, and on the north side of Jefferson. George Silk was standing there with me. The first I saw of Hobbins was I saw him coming up on the hill and then as he got to the sidewalk on Jefferson avenue then he got to the sidewalk on Jefferson avenue, then he got to the curbstone, I saw him when he was walking. He was walking toward the car. He looked around for the car and looked around again, and then he was struck. When I first saw him look wás when he left the curbstone. He looked toward the west then. The next time I saw him look was when he was about four feet from the street car track. And he looked again toward the west. Then he looked toward the east and kept on going. Then I saw the car — the car did not ring; there were a number of people waiting for the car. Then the fender of the car caught him on his foot and it turned him around and he fell. The car also struck his back, that is the front part of the car where the motorman is, struck his back, the vestibule.”

Another witness testified in part:

“On April 26th, 1917, I was a passenger on a street car east-bound on Jefferson avenue. I was right behind the motorman’s vestibule. As the car approached Riopelle, there were a few people standing on the comer in the safety zone. As the car approached it slackened a little, and then it got under headway again without coming to a stop. I saw the man who was struck, probably thirty or forty feet before the car struck him. When I first saw him he was in the vicinity of the tracks — I won’t say he was right on the track; he probably was a very few feet this side of the track, walking north across the street. From the time that I saw him walking across the street — ■ from that time on there was no application of the brake or other slowing of the car, there did not appear to be any. There was no brakes put on, the car kept its regular speed until it struck the man. It struck him on the left side of the head. It was very violent— it sounded as if the car had been struck by a freight at the time.”

It is claimed the testimony of this witness is very much modified by his cross-examination and by a written statement he signed soon after the accident. He testified the gong was sounded.

An ordinance was introduced' in evidence reading in part;

“All cars carrying passengers, operated upon any line or State railroad in the city of Detroit, shall come to a full stop immediately before crossing any street or avenue in the said city whenever signalled to stop by any person desiring to take passage thereon or to alight therefrom.” * * *

It is claimed on the part of the defendant that the instant case is controlled in its favor by Manos v. Railway Co., 168 Mich. 155. In that case on a rainy afternoon plaintiff was carrying an umbrella and- did not look for a car after leaving the curb. It did not appear that there were at the street intersection persons awaiting to take the car, nor did it appear that the car slackened its speed as though intending to stop.

' In Putnam v. Railway, 164 Mich. 342, Justice Brooke, speaking for the court, said in part:

_ “Plaintiff offered in evidence an ordinance of the city of Detroit regulating the speed of street cars. The ordinance was not pleaded and was excluded. At the time of offering it, plaintiff’s counsel explained that it was offered, among other reasons, for the purpose of showing that the plaintiff had a right to anticipate that the speed of the car that was approaching would not exceed a certain maximum rate. It is urged in this court that it was offered, not for the purpose of showing negligence on the part of the defendant, but to acquit the plaintiff of contributory negligence.
“An examination of the record in the case of Moran v. Railway, 124 Mich. 582, relied upon by plaintiff shows that the ordinance was in that case duly pleaded. An ordinance may not be introduced for the purpose of showing the negligence of the defendant unless pleaded. Richter v. Harper, 95 Mich. 221; Gardner v. Railway Co., 99 Mich. 182. We think however, an ordinance may be admitted in evidence without pleading, where the sole purpose of its admission is to acquit the plaintiff of contributory negligence. The ordinance should have been admitted under proper instructions from the court as to the purpose of its admission.”

And in that case it was said it ought not to be held as a matter of law that, plaintiff was guilty of contributory negligence. In Tiley v. Railway Co., 190 Mich. 7, in an opinion by Justice Bird it was said in substance :

“Instructions to the jury that, if they found defendant was accustomed to give warning to persons approáching whenever it was about to move one of the cars across the street on the wye, by having an employee standing near, or by sounding a gong or by other signals, the plaintiff would have a right to believe that no car was about to back across the highway, and if he did all that a careful and prudent man should do to avoid an accident, their verdict should be for plaintiff, correctly stated the rules of law applicable.”

In McManigle v. Railway, 193 Mich. 530, Justice Person, speaking for the court, said in part:

“In determining whether a plaintiff’s proofs show a prima facie cause of action, it,is always necessary that they be construed as strongly in his favor as is reasonably possible: Putnam v. Railway, 164 Mich. 342. * _* * But he (plaintiff)' is, not to be charged with the duty of assuming that the car might be backed in violation of the ordinance,” and it was said, “we do not think it can be said that plaintiff was guilty of contributory negligence as matter of law”

and the case was reversed.

See Spreng v. Railway, 197 Mich. 343, and cases cited therein.

In the instant case there was testimony to the effect that deceased looked when leaving the curb, and that a group of people were in the safety zone, for the purpose of taking passage on the approaching car, that it slackened its speed as though it was about to stop for them, that the city ordinance required the car to stop for awaiting passengers, that he looked again when about four feet from the curb, that the car instead of stopping had its speed accelerated and hit the deceased when he was nearly across the track.

In view of this testimony, we think the case presented a question for the jury, under proper instructions.

The judgment is reversed and a new trial ordered.

Steere, Brooke, Fellows, Stone, Clark, Bird, and Sharpe, JJ., concurred.


source: Caselaw Access Project

author: Clark, J.

license: Public Domain

text:
    RAYMER v. BLAKE.
    Appeal and Error — Harmless Error — Miscarriage op Justice!
    Where there is nothing in the record to show that defendant’s ability to make a full defense upon the merits was prejudiced by the trial court’s refusal to grant his motion to strike the cause from the calendar because the plaintiff did not have the right, under 3 Comp. Laws 1915, § 13763, to have the cause placed thereon, for that term, defendant taking no part in the trial, the judgment for plaintiff will not be reversed, in view of 3 Comp. Laws 1915, § 13763.’
    Error to Eaton; Smith (Clement), J.
    Submitted January 9, 1920.
    (Docket No. 52.)
    Decided February 27, 1920.
    Summary proceedings by Charles E. Raymer, and another against Dexter Blake. There was judgment of restitution before the commissioner, and defendant appealed to the circuit court. Judgment for plaintiffs. Defendant brings error.
    Affirmed.

      Fred J. Slayton, for appellant.

      Peters & Marshall, for appellees.
   Clark, J.

From a judgment of a circuit court commissioner defendant appealed. The appeal was filed in circuit court April 23, 1919. Notices of retainer were exchanged by counsel and filed. Plaintiffs’ attorneys on April 30, 1919, filed and served on defendant and his attorney a notice as follows:

“You will please take notice that the above entitled cause was on the 30th day of April, A. D. 1919, duly placed on the calendar for trial of the April, A. D. 1919, term of said court.”

The first day of the April, 1919, term of the circuit court was April 14th. Defendant moved to strike the cause from the calendar, challenging plaintiffs’ right under section 5, chapter 18, judicature act of 1915 (3 Comp. Laws 1915, § 12577), to have the cause placed on the calendar of the April term of circuit court. The motion was denied on May 15, 1919. The cause came on for trial May 16, 1919, the defendant taking no part, and judgment was entered for plaintiffs. Defendant’s assignments of error question the right of the court to place the cause on the .calendar of the April term and say that it was error to deny the motion to.strike the same from the calendar. Comment on defendant’s contention would be dictum as the judgment must be affirmed for the reason that there is nothing in the record to show that defendant’s ability to make a full defense upon the merits was prejudiced by the court’s refusal to grant the motion to strike the cause from the calendar, and without such a showing, this court must regard the error, if any was committed (which we do not concede) as not warranting a reversal. See Killackey v. Killackey, 156 Mich. 127. And because of the statute,- section 28, chapter 50, judicature act of 1915 (3 Comp. Laws 1915, § 13763), we must reach the same conclusion.

The judgment is affirmed.

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


author: Sharpe, J.

text:
    LAKE SUPERIOR BRASS FOUNDRY CO. v. HOUGHTON CIRCUIT JUDGE.
    1. Trial — Transfer from; Law to Equity — When Granted— Statutes.
    Under 3 Comp. Laws 1915, § 12351, providing for the transfer of a cause from the law to the equity side of the court, the order of transfer should only be made when, on the face of the plaintiff’s declaration or a consideration of all the proofs, it appears to the trial court that the plaintiff cannot recover as a matter of law in the action as brought.
    2. Same — Plaintiff Entitled to Jury Trial on Prima Facie Case.
    The trial court was in error in transferring a cause from the law to the equity side of the court because plaintiff’s proofs making out a prima facie ease were contradicted by defendant’s testimony, since plaintiff’s right to a jury trial on the preponderance of the evidence under the Constitution (Art. 2, § 13) is in no way affected by said statute.
    3. Mandamus — Transfer from Law to Equity not Discretionary.
    The making of an order transferring a cause from the law to the equity side of the court is not discretionary, but tbe statute (3 Comp. Laws 1915, § 12351) must be followed, and where an order was erroneously made mandamus will issue to compel its vacation.
    Mandamus by the Lake Superior Brass Foundry Company to compel Patrick H. O’Brien, circuit judge of Houghton county, to vacate an order transferring an action at law to the equity side of the court.
    Submitted January 13, 1920.
    (Calendar No. 28,637.)
    Writ granted February 27, 1920.

      Galbraith & McCormack, for plaintiff.

      Stone, Wieder & Schulte, for defendant.
   Sharpe, J.

In 1917, the plaintiff commenced a suit against Richard E. Daniell, defendant, upon a promissory note. Personal service was had. Under the plea of the general issue a notice was given, stating that the issues involved could only be determined upon an accounting betweén the parties in equity for the reason that the note was given—

“as the result of a supposed partnership accounting between the said defendant and the said John A. Macauley and in supposed settlement of the accounts between them as copartners under the firm name and style of the Superior Motor Company.”

In reply to which special notice plaintiff gave notice that there had been no partnership in existence for upwards of six years prior to July 1, 1918. The trial began and, after it had proceeded for a time, the attorneys for the defendant moved that the cause be transferred to the equity side of the court. The trial judge was averse to granting this motion at first, but after counsel stated in substance that the transaction evidenced by the note sued upon was but one item in the partnership accounts of Macauley and Daniell as copartners under the firm name of the Superior Motor Company, that" the note was given to the Superior Brass Foundry, and that the Superior Brass Foundry was John A. Macauley, and consequently that the note was given to John A. Macauley as shown on the face of the note, and by its indorsement, and after Mr. Daniell had been sworn the court made the order transferring the cause from the law side to the equity side of the court. This proceeding is brought to review that order. It involves a construction of section 12351, 3 Comp. Laws 1915, which reads:

“If at any time it appear that a suit commenced in , equity should have been brought' as an action on the ¡law side of the court, or if it appear that an action commenced on the law side of the court should have been brought in equity, it shall be forthwith transferred to the proper side, and be there proceeded with, with only such alteration in the pleadings as shall be essential.”

While enacted as a part of the judicature act in 1915, this is the first time it has been before this court for construction. In Toles v. Duplex Power Car Co., 202 Mich. 224, Mr. Justice Steere, in concluding that the plaintiff had an adequate remedy at law for the relief sought in a bill filed in equity, said:

“In view of the provision in section 2, chap. 11, of the judicature act (the section in question), the case is remanded for such further proceedings as may be desired by plaintiff and granted by the trial court, in harmony with the statute and this opinion.”

In the annotation to this section in Cummins & Beecher’s Judicature Act, it is said that the section corresponds to the new Federal Equity Rule No. 22, adopted by the Supreme Court of the United States in the year 1912. An examination will show that, being an equity rule, it only applies to the transfer from the equity to the law side of the court. It has been many times construed by the Federal courts. The holding has always been that when the plaintiff’s pleading in the suit brought in equity, or the record after the proofs are submitted, shows that, while the plaintiff is not entitled to relief in equity, he has a cause of action at law, the bill should not be dismissed, but a transfer should be ordered to the law side under this rule. See Louisiana Agricultural Corp. v. Refining Co., 168 C. C. A. 168, 256 Fed. 822; American Falls Milling Co. v. Distributing Co., 160 C. C. A. 497, 248 Fed. 487; Fay v. Hill, 161 C. C. A. 389, 249 Fed. 415.

This section, however, provides for the transfer from the law to the equity side of the court at any time it appears that the action on the law side should have been brought in equity. Applying the reasoning of the Federal courts, the order should only be made when, on the face of the plaintiff’s declaration or a consideration of all the proofs, it should appear to the trial court that the plaintiff cannot recover as a matter of law in the action as brought and a verdict must be directed against him.

Applying this construction to the facts before us, we are of the opinion that the trial judge erred in ordering the transfer in this case. In his return to the order to show cause, he says:

“That evidence was introduced in behalf of plaintiff * * * which, except for tlm special defense and motion of the attorneys for the defendant and the order of said court made thereon, * * * would have made out * * * a prima facie case in favor of said plaintiff.”

Though such proofs may have been contradicted by the testimony offered by defendant, the plaintiff was entitled to take the verdict of the jury on the question of the preponderance thereof.

The right of trial by jury is secured to plaintiff by the Constitution of this State. Article 2, § 13. This statute in no way attempts to deprive the plaintiff of such right, nor should such a construction be given it as would even tend to work out such a result in violation of the constitutional provision.

The making of such an order is not, in our opinion, discretionary. When the court concludes that plaintiff has failed to make out a case which entitles him to its submission to the jury for the reason that the matters involved are the subject of equitable jurisdiction, the'order must be made pursuant to the statute.

The writ of mandamus will issue.

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


author: Kuhn, J. Clark, J.

text:
    STAPLETON v. FURNITURE EXHIBITION BUILDING CO.
    1. Carriers — Elevators—Inspection—Negligence—Question for Jury.
    In an action for the wrongful death of plaintiff’s decedent, caused by the dropping of defendant’s elevator from the sixth floor, due to the breaking of the bolt to which the cables were attached, where defendant admitted that during the ,17 or 18 years the elevator had been in use the part of said bolt where the break occurred, which was hidden by a metal sleeve, had never been removed for inspection, and testimony on plaintiff’s part tended to prove that a proper inspection would have disclosed a break,therein which had existed for some time, the question as to whether defendant took such precautions in its inspection as a reasonably prudent person should have taken under like circumstances, held, for the jury.
    2. Same — Customs and Usages.
    That it was not customary to remove such bolts in the past for inspection, would not bar plaintiff’s right of action; but was a fact proper for the jury to consider on the question as to whether defendant exercised reasonable care.
    3. Same — Examination of Witnesses — Discretion of Court.
    The court below was justified in being liberal in allowing searching inquiry concerning the cause of the death of plaintiff’s decedent, since the elevator and all of the machinery connected therewith were entirely within the care and custody of defendant.
    On Rehearing.

      4. Appeal and Error — Evidence—Admissibility—Effect of Ruling of Trial Judge.
    Defendant’s contention, on rehearing, that certain testimony, quoted in the former opinion, had been declared incompetent, and stricken out by the trial judge, held, not sustained upon the record.
    On the question of construction and inspection of passenger elevators, see notes in 2 L. R. A. (N. S.) 749, and L. R. A. 1915E, 726.

      Error to Kent; McDonald (John S.), J.
    Submitted October 24, 1919.
    (Docket No. 72.)
    Decided December 22, 1919.
    Resubmitted February 27, 1920.
    Former opinion affirmed April 10, 1920.
    Case by Mary A. Stapleton, administratrix of the estate of Thomas J. Stapleton, deceased, against the Furniture Exhibition Building Company for the negligent killing of plaintiff’s decedent. Judgment for plaintiff. Defendant brings error.
    Affirmed.

      Hal P. Wilson and Travis, Merrick, Warner & John~ son, for appellant.

      Martin H. Carmody and Fred P. Geib, for appellee.
    Plaintiff brought this suit as administratrix of the estate of her deceased husband, Thomas. J. Stapleton, and recovered a verdict of $21,702.62 as damages. The defendant company was the lessee of the Furniture Exhibition Building in the city of Grand Rapids, Michigan, where regular semi-annual furniture exhibitions were'shown. These exhibitions seem to have extended over a number of years, although each one lasted little more than one month, so that the building was practically idle during the remainder of the year. On July 8, 1916, one of these semi-annual displays was in progress and the plaintiff’s decedent, a furniture salesman, had gone to the sixth floor of the building on a matter of business. On the completion, of his errand, he stepped into the elevator to descend, to the main floor, when the cage dropped the full distance to the bottom of the shaft, instantly killing Mr. Stapleton and the operator, the only other occupant of the elevator.
    The investigation showed that the elevator, which, had been installed 17 or 18 years previous to this time, was a cage weighing about a ton and that it was hoisted in the shaft with a 30 H. P. motor which controlled the cables attached to its top. It was at this important point in the mechanism that the primary trouble occurred..- The object to which the cables were fastened was a large, wrought-iron bolt (known as a “draw-bolt” or “king-bolt”), about one inch in diameter. The portion of the bolt which was plainly in sight was U-shaped or clevis-shaped, and it was to the prongs of this clevis that the cables for hoisting the elevator and also the cables connected with the counterweight were attached. Immediately below the U of the clevis, the bolt was encased in a metal sleeve, or box, so that practically the entire length of the bolt below1 the clevis was concealed from ocular inspection.
    After the accident, it was found that the bolt had broken off just a little below the top of the iron sleeve, which, obviously, released the elevator from any connection with the supporting cables. Both pieces of the bolt were afterwards taken to the Detroit Testing Laboratory where they were minutely examined. While there is some controversy as to the-, qualities and condition of the metal, it fairly appears; that, at the point where the break occurred, there was; a slight crack running irregularly across about 30% of the surface of the bolt, and from the fact that this was somewhat rusted and discolored, it has been a fruitful source of speculation among counsel as to the probable age of this rupture. The remaining surface of the break was shiny and untarnished, and gave every evidence of having been the point of severance of the bolt at the time of the accident. However that may be, the expert examination revealed, as stated in the defendant’s brief, “that at the point where the break occurred and on the side of the bolt where the older part of the break was found, there was a latent defect in the bolt, caused by an excessive amount of slag lying crosswise of the diameter of' the bolt.”

      Defendant produced evidence to prove that the elevator was ordinarily in the care óf and under the supervision of the superintendent of the building’, a competent man who had had experience with elevators. He testified that the mechanism had been inspected periodically every 90 days by professional elevator inspectors, but it appears from their statements on the witness stand that they made only the usual examination and that the metal sleeve had not been detached so that the part of the bolt which was covered by this casing had not been looked at; consequently, neither the inspectors nor the defendant (through its agents) knew of the crack in the bolt and in fact never suspected its existence. The reasons given for the failure of the inspectors to take this precaution are “that it was not the practice or custom of elevator inspectors, in making inspections, to take out bolts of this character for inspection or examination; that not only was this not the custom, but that such a thing had never been heard of in practice,” and that “such examination or inspection could not have been made without fastening the elevator cage in some way so that it would be supported, and then disconnect and secure the cables, unscrew the nut on the bolt and take it out, all of which was an operation which would have taken considerable time, requiring the services of two or more men.”
    It is the contention of the defendant and appellant that, having purchased the elevator from a reputable concern whose product was in common use, it was justified in assuming that it was properly constructed to safely perform the work which it was intended to do and that the defendant would not “be liable for accidents resulting from faults of design or of original construction or latent defects of which defendant was ignorant.” Furthermore, it contends that it was only required to make a reasonable inspection of the elevator and that the examinations made by the expert inspectors were reasonable under the circumstances; that neither the crack in the bolt nor the latent defect in the material itself caused by the presence of slag at the point of severance could have-been discovered in such inspections because not visible, covered as they were by the metal sleeve, and that, in effect, it would be entirely unreasonable to impose upon the defendant the duty of making so careful an inspection to prevent the remote possibility of the occurrence of an accident such as actually happened.
    With reference to the primary negligence charged, the court directed the jury as follows:
    “It appears to be undisputed that the bolt was fractured at the time of the accident. How long it had been in that condition is a matter of dispute. It appears from the evidence that the bolt was defective when the elevator was installed. The defendant would not be responsible for the original construction or design of the elevator, but it was the duty of the defendant at all times to exercise ordinary and reasonable care and diligence to discover and correct any defects, having in mind the use to which the bolt was put and the important part it played in the mechanism of the machinery. Did the defendant discharge the duty? Did it make such inspection as the law requires? The fractured bolt was not visible because it was covered by a sleeve or box. The plaintiff claims that ordinary care required the defendant, in making its inspections, to remove the bolt from its covering and examine it. The defendant says that the ordinary and approved tests employed by skillful and competent inspectors did not require the bolt to be removed and inspected. From the evidence, you will determine whether in the exercise of reasonable care, it was necessary for the defendant to remove the bolt for examination and inspection. It is undisputed that the defendant did not do that. So, if you find from the evidence that reasonable care required the defendant to remove the bolt and inspect it, the defendant would be guilty of negligence. If you find that reasonable care, as I said, in the inspection of the elevator required that this bolt should have been taken out and examined, and that reasonable care in its examination would have disclosed the defects, you would be justified in finding the defendants guilty of negligence.
    “If, on the other hand, you find from the evidence that reasonable care did not require the taking out of the bolt for examination, or that its defective condition could not have been determined after taking it out by the customary and reasonable tests, you should find that, so far as the inspection of the bolt is concerned, the defendant was not guilty of negligence.”
   Kuhn, J.

(after stating the facts). This is not a case where the plaintiff is seeking to hold the defendant for a latent defect which existed when the machinery was installed. The theory upon which she seeks recovery is grounded upon the failure of the defendant to discover the defect, it being claimed that the defect might have been easily discovered if the elevator and its various essential parts had been properly inspected during the 18 years that they had been in use. v

The contention of the respondent is that the jury should not have been permitted to find that some sort' of an Inspection should have been made, which, according to custom, had never been deemed necessary and was not customary. Considerable fault is also found with various parts of the charge of the .court in submitting the question of negligence to the jury.

Mr. Jesse D. Stoddard, the secretary and treasurer of the Detroit Testing Laboratory and a chemist and metallurgist of considerable experience, was one of the witnesses sworn on behalf of the defendant. With reference to the necessity of inspection of metals which are subjected to heavy strains and which are used where human life would be endangered by their insufficiency he testified in part as follows:

“We know that metal varies over a wide field, in strength qualities. After all these precautions have been taken, in addition to that, in cases where metal occupies a place where human life is in danger or a large amount of property is in danger in the structure, I believe it is customary to inspect such metal and such structures periodically after they are in place to ascertain whether there are any visible signs of deterioration — there is such practice of inspection carried on.
“Q. Isn’t it'true that experience, such experience as you have observed in connection with the work that you are doing, has established that periodical inspections are desirable and necessary in order to detect apparent signs of deterioration of metals that are in actual use?
“Mr. Travis (for defendant): I object to that as incompetent, covering a field that might mean anything.
“The Court: No, he may answer that.
“Question read.
“A. It is true; apparent signs can be so detected and are so detected.
“Q. Do you know the practice that is followed with reference to inspections that are1 made of structural metals that are subjected to strains and stresses in the course of their use? Is there any custom or practice about that, that you know of?
“Mr. Travis: The same objection, your honor.
“The Court: He may answer that question.
“A. He asked me if I knew the practice that was followed.
“The Court: He asked the question whether there was any custom or practice.
“Q. Within your knowledge, of course.
“A. There is such a custom.
“Mr. Travis: I object to it as being too general and for that reason not admissible in this case, and move to strike it out.
“The Court: I think I will take it. You may answer it.
“A. I said there was such a custom and practice.”

The question really is whether or not any hard and fast rule can be laid down as to what ordinary negligence would be under circumstances of this kind. The fact that it would be difficult to make such an inspection and that it was necessary to block up the car and remove the bolt would be no answer if it was reasonably necessary to do this in order to protect human life and limb. The testimony showed that the cables on this elevator had been changed from time to time and that at such times it was necessary to block up the elevator. At these times, a removal of the bolt would have required but a few moments of extra time and relatively little labor. Tapping the bolt with a hammer after it had been removed from the sleeve, cleaning it and painting it, might have been all that was necessary to satisfy such requirements. The defendant had all the necessary opportunities and facilities for making the proper inspections and tests. But no effort was made for 18 years to determine whether the bolt was in such a condition as to carry the great strain which was put upon it. It seems to us, under all the circumstances in this case, as shown by the record, that it was one of those cases which was peculiarly within the province of the jury to determine whether or not the defendant took such precautions in the inspection of the elevator as a reasonably prudent person should have taken under like circumstances.

The claim of the defendant that it was not customary to remove such bolts in the past would be no excuse and would not bar the plaintiff’s right of action, but would be one of the factors which could be properly submitted to the jury on the question of whether or not the defendant exercised reasonable care

What is ordinary and what is reasonable care under all of the circumstances must be determined, in the last analysis, in the light of the experience of ordinary men of affairs. The jury heard all of the testimony and the claims of the parties and were enlightened by all of these facts; they heard testimony of the means and methods by which the draw-bolt might have been tested, the manner and method by which it might have been removed from its place in the elevator mechanism, the physical structure of the bolt itself, and ,the testimony of the defendant’s inspectors that they had never heard of such a bolt being removed and tested. They heard the testimony of witness Stoddard, above set forth, that material upon the strength of which the safety of human life depends should be occasionally inspected and tested.

There are a number of assignments based upon rulings with reference to the evidence. Considerable latitude was allowed plaintiff’s counsel in asking questions concerning the cause of the accident and, we think, properly so, as the elevator and all of the machinery connected therewith was entirely within the. care and custody of the defendant and, under the circumstances, the court was justified in being liberal in allowing searching inquiry concerning the cause of the death of the plaintiff’s decedent.

We have carefully examined these various assignments of error and we do not find that there was any prejudicial error committed. The crucial questions of negligence were carefully submitted to the jury with clear instructions as to the law pertaining thereto. No complaint is made of the size of the verdict, and, being unable to find any prejudicial error in the record, we are constrained to affirm the judgment.

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

On Rehearing.

Clark, J.

Counsel for defendant assert that the testimony of the witness Stoddard, quoted by Justice Kuhn, had been declared incompetent by the trial court and had been stricken out. The basis of the assertion is found in the record immediately following the testimony so quoted, and is a part of the further cross-examination of this witness for defendant:

“Q. To what particular line of structures does the practice to which you have just testified apply?
“A. To building materials largely, structural materials, materials entering into the production of vehicles such as automobiles, aeronautics, the production of aeroplanes, motors; in fact, the whole field of manufacturing industry is substantially covered today by specifications drawn by the American Society for testing materials, for the inspection of materials entering into the various uses.
“Mr. Travis: May my objection stand?
“The Court: I think I will strike out the answer. After hearing the answer, I am not sure that it is admissible. I will strike it out.
“Mr. Geib: It seems to me, your honor, it would be competent, at least, in so far as it applies to structural materials. He has testified that there was a custom he knew about. Now, I am asking him to what that custom relates, or applies, and he said, among other things, structural materials.
“Mr. Travis: If counsel desires to ask this witness if he knows whether or not there is any custom of inspecting bolts of this kind when used in this manner, I have no objection, if the witness knows, to his asking that.
“The Court: That is as far as I intended to have him go in the first statement.
“Mr. Geib: Your honor, we are not limited to that. That is getting back to. the proposition that I think was mentioned the other day, that a group of inspectors or a group, of owners or any one else engaged in a particular business cannot establish a rule of negligence or a diligence binding on a court or jury.
“The Court: I think you are right about that, but I do not know that it goes to this question. You can ask him about this business, whether there is any custom in such matters, keeping as. close to the elevator as you can.”

By the first ruling of the trial court above quoted, the answer to one question was stricken. The later observation of the court did not have the effect of striking out the testimony quoted by Justice Kuhn, nor was any motion made to strike such testimony, and it was not here urged that it was admitted erroneously. Defendant’s contentions upon rehearing are not sustained. We find no reason for disturbing the former conclusion.

The judgment is affirmed.

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