text:
    HOOKER v. BLAIR.
    Carriers — Negligence—Contributory Negligence.
    A passenger who, on hearing the brakéman call a station, and seeing him open the vestibule door, left his seat and. went to the platform, believing from the jar of the train that it had stopped, and attempted to alight from the steps of the moving car, in the darkness, was guilty of contributory negligence, and the receivers of the road were not chargeable with negligence for announcing the station before the train arrived there, or had stopped.

    Error to Kent; Brown, J.
    Submitted October 15, 1915.
    (Docket No. 116.)
    Decided December 21, 1915.
    Case by William W. Hooker against Frank W. Blair and others, as receivers of the Pere Marquette Railroad Company, for personal injuries. Judgment for plaintiff. Defendants bring error.
    Reversed.

      Bills, Parker, Shields & Brown (Charles E. Ward, of counsel), for appellants.

      Smedley & Linsey and Charles G. Turner, for appellee.

      On carrier’s duty to prevent passenger from leaving train while in motion, see note in 31 L. R. A. (N. S.) 625.
      On negligence of passenger in getting on or off a moving train, see notes in 21 L. R. A. 354, 22 L. R. A. (N. S.) 741, L. R. A. 1915C 181.
      On the assumption by passenger that car will stop at proper place for alighting, see notes in 2 L. R. A. (N. S.) 115, 9 L. R. A. (N. S.) 1113.

   Moore, J.

This case arises out of an injury to the plaintiff while alighting from one of defendants’ trains. Plaintiff’s testimony on the trial was in substance :

“On the 29th day of September I was going to Englishville to work driving team. It was telephone work for the Citizens’ Company.” He took a seat in the middle of the smoking car. The train was a vestibuled train. “I had never ridden to Englishville before on this road. It was ifiy first trip up there. Just before I got off I saw the brakeman going through the coach I was in. When he went through he announced the station: “Englishville; Englishville.’ He said- this at the head end and at the rear end of the coach. As he went out the rear end of the coach he opened the coach door. * * *
“Q. As the brakeman went out, what, if anything, did you notice with reference to the train? .
“A. The train came to a halt. I thought it was stopped.
“Q. What did you notice with reference to it?
“A. Why, the jar of the train — the train, you can feel the jar of the train when it is stopping, when it is slack.
“Q. Where were you when you noticed that?
“A. I was in my seat.
“Q. How long did you remain in your seat after that?
“A. Oh, a very short time.
“Q. Then did you get up out of your seat?
“A. I got up out of my seat and walked to the door.
* * *
“Q At the time that you got out of your seat, was the train in motion, or what did you think about the train being in motion?'
“A. I thought the train had stopped. * * *
‘“Q. And when you got to the rear end of the coach did you see any of the trainmen?
“A, I saw the conductor.
“Q. And where was he standing?
“A. He was standing on the coach behind the smoker, next to the smoker.
“Q. Which way was he looking?
“A. Well he was faced towards me.
“Q. Looking towards you?
“A. Looking in that direction.
“Q. When you got to the platform, rear platform, of the smoker, what did you notice?
“A. I noticed the door; the vestibule door was open; the side door was open.
“Q. Where was the brakeman at that time?
“A. I didn’t see him. * * *
“Q. What did you do when you got to the platform?
“A. I walked down the steps.
“Q. Then what did you do?
“A. My last step was to the ground.
“Q. When you stepped to the ground, what did you find?
“A. I found I was in hard shape — in the cattle guard.
“Q. What did you find with reference to the train, whether or not the train was in motion when you stepped to the ground? •
“A. I knew then the train was in motion, when I stepped off and was thrown. (Continuing:) It throwed me onto the cattle guard. There was no light there. The condition outside was very dark. It was a very dark night.
“Q. Could you observe, from anything you could see° on the outside, whether the train was in motion?
“A. I could not. I couldn’t see anything * * *
“Q. What did the conductor say to you when he came out?
“A. He didn’t say anything.”

This appears in the cross-examination:

“Q, When you walked out there on the platform, you say the conductor was the only man you saw, and you looked for the brakeman and did not find him. Did you say anything to the conductor.
“A. No, sir.
“Q. Or he to you?
“A. No, sir.
“Q. You didn’t say anything to anybody then?
“A. No, sir.
“Q. Walked off?
“A. Why, certainly, I just walked off.”

Plaintiff further testified that when he came out of the car door of the smoker he did not see the brakeman on the steps of the car, and thought the brakeman was on the ground to assist passengers in getting off, and that for that reason he thought the train had stopped. He says he saw the conductor on the platform of the ladies’ coach, and therefore supposed that the brakeman was on the ground. He knew the brakeman customarily carried a lantern, but did not see the lantern of this brakeman outside as he stepped from the car. He looked for the brakeman on the ground, but did not see him. He also testified he had been told it was the custom for some one to remain on guard when the vestibule doors were opened, and that as the station had been called, and he had felt a jar which indicated to him the train had stopped, and the doors were open so that one could alight, and as he did not see the brakeman, that all these circumstances together justified him in alighting. The case was submitted to the jury. From a verdict and judgment in favor of the plaintiff, the case is brought here by writ of error.

There are four groups of assignments of error discussed by counsel, but the important one is whether a verdict should have been directed in favor of the defendants as requested. Counsel insists the action of the trial judge in submitting the case to the jury is justified by many cases, cited by him, the important ones of which are Burke v. Traction & Electric Co., 147 Mich. 172 (110 N. W. 524), Walters v. Railway Co., 113 Wis. 367 (89 N. W. 140), Louisville, etc., R. Co. v. Moore, 150 Ky. 692 (150 S. W. 849), and Bartle v. Railroad Co., 193 N. Y. 362 (85 N. E. 1091). A reference to these cases will show most of them to be distinguishable from the instant ease.

Burke v. Traction & Electric Co., supra, was against a street railway company. It was said in the opinion:

“The principle of these cases has no application where, the car is started when a passenger is alighting therefrom at the invitation, express or implied, of the carrier. In such a case — and this is such a case — it is, as above stated, negligence for the carrier to start the car.”

In Walters v. Railway Co., supra, the train had stopped, and it was claimed the train was started when the passenger was attempting to alight. In disposing of the case it was said:

“The queston of contributory negligence was also one for the jury. It is well settled that an adult who unnecessarily steps from a train which he knows to be in motion is guilty of contributory negligence as a matter of law. Brown v. C., M. & St. P. R. Co., 80 Wis. 162 [49 N. W. 807]. Bub in the present case the plaintiff testifies that he did not know the train was moving when he stepped off. While such a statement might well seem incredible if made 25 years ago, it is not so now. It is matter of common knowledge that vestibule trains, with improved couplers and running on a first-class roadbed, frequently start so noiselessly and imperceptibly as to attract no notice, especially when the outside darkness prevents the passenger from noticing the fact by the use of his eyes.”

In Louisville, etc., R. Co. v. Moore, supra, the following appears in the opinion:

“Ordinarily a passenger, who is injured by stepping from a train while it is moving at a rate of speed that makes it probably unsafe for him to do so, would be held guilty of such negligence as would prevent a recovery. Glascock v. C. N. O. & Tp. Ry. Co., 140 Ky. 720 [131 S. W. 779]; Hewlett v. L. & N. R. R. Co., 15 Ky. Law Rep. 178; Adams’ Adm’r v. L. & N. R. R. Co., 82 Ky. 608. But if appellee, while a night passenger on appellant’s train, was informed by one of the train employees that it had reached his destination, such information being attended by the lessening of the speed of the train, as if for the purpose of stopping, and the train porter, while the train was-still in motion, in his presence, stepped from it ahead of him, immediately after calling to him to get off, and appellee was induced thereby to step from the train in the belief that it had stopped, and by reason thereof fell and was injured, he was not guilty of negligence, unless, notwithstanding the direction from the porter to alight, he knew, or by the exercise of ordinary care might have discovered, that the train was still in motion, and that it was, under the circumstances, dangerous for him to attempt to alight from it.”

Certainly the above cases are not like the case we are considering. The case of Bartle v. Railroad Co., supra, is more in point. In this case it appeared:

“The train consisted of a number of cars, and, being crowded, the party were compelled to go through two or three cars to the forward one, which was next to the engine, there being no baggage car on the train. It is in evidence that in the front portion of the car there were no lights, no trainman with lantern, and the curtains, or most of them, were pulled down; also, that there was no light on the rear of the engine; that the station at Chili was unlighted and closed at the time the train arrived; that it was a very dark night, and no objects could be seen when looking off from the front platform of the forward car.”

The conditions were somewhat unlike the case before us, though there is language used in the opinion that justifies what is claimed for it by counsel.

In Morris v. Railroad Co., 127 La. 446, 447 (53 South. 698, 31 L. R. A. [N. S.] 629), the following language appears:

“The train was still in motion. Plaintiff testified that it was in motion, but that he was not aware of it at the time. The question arises: Did it not devolve upon him to satisfy himself before alighting that the train was standing ready to permit passengers to alight? If a passenger, who has every reasonable opportunity to assure himself that the train is at full stop, fails to make inquiry, he cannot hold others liable for damages in case he alights while it is in motion and is hurt.”

The case of Mearns v. Railroad Co., 163 N. Y. 108 (57 N. E. 292), is much like the present case. The only difference is that the train was moving into a well-lighted station. In the opinion occurs the following:

“In the case of Solomon v. Railway Co., 103 N. Y. 437, 442 [9 N. E. 430, 57 Am. Rep. 760], Andrews, J., in delivering the opinion of the court, says:
“ ‘It is, we think, the general rule of law, established by the decisions in this and other States, as claimed by the learned counsel for the respondent, that the boarding or alighting from a moving train is presumably and generally a negligent act per se, and that in order to rebut this presumption and justify a recovery for an injury sustained in getting on or off a moving train it must appear that the passenger was, by the act of the defendant, put to an election between alternative dangers, or that something was done or said, or that some direction was given to the passenger by those in charge of the train, or some situation created, which interfered to some extent with his free agency, and was calculated to .divert his attention from the danger, and create a confidence that the attempt could be made in safety,’
“Applying this rule to the facts under consideration, it is evident that there is a total absence of any act or direction of those having the charge of the train which interfered with the free agency of the plaintiff, or that in any manner diverted his attention. All that was done by the guard was to call out: ‘All out; Jersey City; last stop!’ This notice was given before the train had stopped, and this fact was well understood by the plaintiff. He knew it to be the usual notice given in advance of the arrival of the train at its stopping place, notifying the passengers that the train was nearing the station, in order that they might get ready to alight. He acted upon the notice leisurely, preparing himself to leave the train, gathering together his belongings, and then walked toward the front of the car, stopping and, leaning against a partition for a time, waiting unquestionably for the train to arrive at and enter the station. No unusual situation was created. He was in no manner interfered with. As the car was entering the trainhouse the guard stepped into the vestibule and opened the door. He then stepped into the vestibule in front, as the plaintiff stepped out and descended the steps. There was nothing unusual in this. Nothing had been said or done that would lead the guard to suppose that the plaintiff did not understand the situation, or that he was mistaken about the train having come to a stand. Ordinarily passengers have no difficulty in determining whether a train has stopped. They are usually as sensitive to a moving car as any guard or conductor could be, and heretofore it has never been understood to be the duty of a railroad company to expressly warn its passengers of the starting or of the stopping of the train. This was not a rapid transit or elevated railroad, in which a different custom may prevail. If such a duty is now imposed upon railroad companies, their burden will be materially increased and they cannot properly open the door of a car for the exit of passengers until it has actually come to a stop.”

The last-named case was before the Federal court in 139 Fed. 543 (71 C. C. A. 331). We quote from the opinion:

“The contention of the plaintiff is, in effect, that when the porter, or guard, made the statement, ‘Jersey City; last stop; all out!’ and followed it by opening the vestibule door, it amounted to a positive assurance by the defendant that the car had stopped, and was an ‘invitation’ to the plaintiff to alight, accompanied with a guaranty that he could do so with safety. It is argued that it was the duty of the porter to know whether the car had stopped or not; if he did not know, it was negligence. If, on the other hand, he did know, he should have warned the plaintiff not to get off, and his failure to do so was negligence. We do not think this contention can be maintained. It places upon carriers obligations which practically make them insurers of the lives and limbs of their passengers. It lays down a new, a stringent, and an impracticable rule, which will extend their liability far beyond its present limit, and will, in effect, render them liable for injuries sustained by passengers in alighting from moving trains, whether made up of vestibuled or ordinary coaches, whenever a guard who has announced a station and opened the car door, fails to inform them that the train is in motion, and the party injured testifies that he supposed that the train was at a standstill. We prefer to take the view of the facts entertained by the court of appeals. The statement of the porter was not an ‘invitation’ to alight, but was the usual announcement of a fact of interest to the passengers, namely, that they had reached or were about to reach the end of their journey. The opening of the door of the vestibule did not warrant the inference that the car had stopped, but was only another act to facilitate the rapid and orderly egress of the passengers, after the train had stopped. Even though it be assumed that the porter knew that the train was in motion and that he saw the passenger (plaintiff) step down from the platform, this falls far short of showing that he knew or ought to have known that the plaintiff intended to step off. It is so common for eager passengers in approaching a station to descend to the last step, in order to avail themselves of the first opportunity to alight, that a guard who called out to a passenger in sucha situation, 'Don’t get off; the train has not stopped,’ would probably be denounced as an impertinent interloper. We cannot resist the conclusion that the deplorable accident which befell the plaintiff was attributable to his own lack of caution and was not due to the negligence of the defendant.
“We agree with the supreme court of Massachusetts when they say in a case very similar upon the facts:
“ ‘Assuming that the action of the brakeman in calling the station and fastening back the door was to be regarded as an invitation, it was clearly not an invitation to alight from a moving train, but from the train after it had come to a stop. It did not authorize the plaintiff to attempt to, get off from the train when in motion. But we do not think the action of the brakeman can, as a matter of law, be regarded as an invitation. It was, at the most, simply an announcement that the train was near the station, and would presently stop, and was given in order that passengers intending to alight there might prepare themselves to do so when the train stopped.’ England v. B. & M. R., 153 Mass. 490 (27 N. E. 1).”

See, also, England v. Railroad, 153 Mass. 490 (27 N. E. 1), and Baltimore, etc., R. Co. v. Mullen, 217 Ill. 203 (75 N. E. 474, 2 L. R. A. [N. S.] 115, 3 Am. & Eng. Ann. Cas. 1015), where the last-named case is referred to.

The questions presented in this case are not new in this State. In Mitchell v. Railway Co., 51 Mich. 236 (16 N. W. 388, 47 Am. Rep. 566), the station had been called, and the plaintiff supposed the train had stopped, and in alighting was hurt. The following language was used by Justice Campbell:

"It is also well settled that negligence cannot be presumed where nothing is done out of the usual course of business, unless that course itself is improper. There must be some special circumstances calling for more particular care or caution, in order to make a liability. Stephenson v. G. T. R. Co., 34 Mich. 323; G. R. & Indiana R. R. v. Judson, 34 Mich. 506; Flint & P. M. Ry. v. Stark, 38 Mich. 714; Downey v. Hendrie, 46 Mich. 498 [9 N. W. 828, 41 Am. Rep. 177]; Mich. Cent. R. R. v. Coleman, 28 Mich. 440; Haas v. G. R. & Ind. R. R., 47 Mich. 401 [11 N. W. 216]; Chicago & N. W. Ry. Co. v. Smith, 46 Mich. 504 [9 N. W. 830, 41 Am. Rep. 177]; Brown v. Congress & Baker St. Ry., 49 Mich. 153 [13 N. W. 494]; Henry v. Lake Shore & M. S. Ry., 49 Mich. 495 [13 N. W. 832].
"The only cause of the mischief, leaving defendant’s carefulness or negligence out of view, was her mistaken supposition that the cars had stopped for the station, and that she should therefore get out. There was nothing at the spot to indicate a landing place, and there was, at the proper place, a short distance further on, a building and platform appropriate and used for that purpose. ' The stoppage of the cars was required by statute, as well as by usage, as a precaution against collisions. The calling of the station was not shown to have been out of the usual course, and from the distance mentioned we can hardly conceive it should have been delayed. No one representing the company, whether conductor or brakeman, is shown to have known or suspected that plaintiff had put herself in peril or left her place. Nothing is shown which put them in fault for not knowing this. * * *
“The company, as held in some of the cases above cited, cannot be expected to treat its passengers as children, or to put them under restraint. Passengers must take the responsibility of informing themselves concerning the everyday incidents of railway traveling, and the company could not do business on any other basis.”

See, also, Bradley v. Railway Co., 107 Mich. 243 (65 N. W. 102); Lake Shore, etc., R. Co. v. Bangs, 47 Mich. 470 (11 N. W. 276); Minock v. Railway Co., 97 Mich. 425 (56 N. W. 780).

The accident is greatly to be regretted, but we do not think plaintiff did what a reasonably prudent man should have done before leaving the train, nor do we think negligence on the part of the railroad was shown. Upon both grounds a verdict should have been directed for defendants.

Judgment is reversed, and new trial ordered.

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


source: Caselaw Access Project

author: Moore, J.

license: Public Domain

text:
    JORDAN v. WIXSON.
    1. Automobiles — Negligence—Law oe the Road — Personal Injuries.
    In an action for injuries sustained in a collision with defendant’s automobile, language of the trial court, in the charge to the jury, that plaintiff was “bound to use every reasonable means to avoid a collision,” read in connection with other instructions, held, cured or modified so as to avoid prejudice.
    2. Same.

      Held, that the testimony warranted a verdict and judgment for the defendant on the theory of contributory negligence.
    Error to Calhoun; North, J.
    Submitted October 18, 1915.
    (Docket No. 149.)
    Decided December 21, 1915.

      Case by Jesse Jordan against Don C. Wixson for personal injuries. Judgment for defendant. Plaintiff brings error.
    Affirmed.

      R. G. Leitch, for appellant.

      Joseph L. Hooper, for appellee.
   Moore, J.

This case was. brought to recover damages for personal injuries received by the plaintiff, in a collision between his one-horse wagon and an automobile owned and driven by the defendant. The case was tried by a jury, which returned a verdict in favor of the defendant. A motion was made for a new trial. In overruling the motion the judge stated, in part, as follows:

“While the testimony of the plaintiff as given probably raised a question which should have been, and was, left to the jury to pass upon, still under his own testimony it may well be doubted as to whether or not the defendant was. not entitled to have the verdict directed by the court.”

The plaintiff was going west driving an old gentle horse hitched to a truck wagon. There was a bridge in the highway over a creek. The plaintiff left the bridge at his right, driving through the creek, and after watering his horse continued on his journey west. Shortly after he rejoined the highway, his attention was diverted by a threshing machine, which was 10 or 12 rods away in front and to the right of him. The road west of him was slightly upgrade and was in plain view for 25 or 30 rods. It is plaintiff’s claim that he was driving on the right side of the traveled portion of the highway, that he neither heard nor saw, though his eyesight and hearing were good, the automobile until it was within 10 feet of him, when it almost instantly struck the rear wheel of his wagon, injuring it somewhat and hurting the plaintiff.

It is the claim of defendant, who was driving his own automobile, his wife and a lady friend being on the back seat, that when he was 12 or 15 rods away from the plaintiff he signaled with his horn, and did' so several times; that he slowed down his machine and turned completely out of the traveled part of the way, and, supposing the plaintiff would give part of the right of way, expected to pass in safety; that he passed the horse and the front part of the wagon, and would have passed the whole of it if the road had not narrowed back of the wagon so that to avoid going into the ditch, which was 3 or 4 feet deep, he had to turn toward the traveled part of the road, and in doing so hit the back wheel of the wagon; and that he stopped his automobile within 3 feet of the rear part of the wagon.

Some of the men who were at the threshing outfit were at the scene of the accident within two or three minutes, and they were called as witnesses by the plaintiff. They say the hind wheels of the automobile were just about opposite the back tracks of the wagon, that the tracks of the wagon were nearly in the middle of the road, that the automobile tracks showed it was being driven on the right side of the road, and if the automobile had kept straight ahead it would not have touched the wagon, but if it had kept straight on it would have gone into a three-foot ditch.

A witness who seemed to be entirely disinterested gave the following version of the occurrence:

“I was along that road on the day the accident occurred. I was going west at the time, following Mr. Jordan. I had just crossed the bridge. I imagine I was, 15 or 20 rods behind him. I was driving a double team. Mr. Jordan was in the center of the highway. Mr. Wixson was coming down the hill, and he was not coming at a very rapid pace. He was going at the average gait of an automobile. I think he was not going at a rapid rate. Mr. Jordan was very busy engaged watching them thresh, and was not paying attention to what was going on in the road. Mr. Wixson turned out to his own side of the road and gave him all he could. Mr. Wixson had to hit him or go into the ditch himself. He sounded his horn several times. It was sounded loudly enough so that I could hear it from where I was. Both women jumped up from the back seat and hollered. Mr. Wixson hollered himself, ‘Get out of the way.’ From what I observed there, and from the position of Mr. Jordan’s wagon in the center of the road, it was impossible for Mr. Wixson to have got by there without going into the ditch himself, or without striking the carriage. He gave him sufficient warning so that he had a chance to have observed that there was danger ahead. After they got Mr. Jordan into the road and fixed up, he stood there, and he says: T am awfully sorry. It was my fault.’ He says: T didn’t hear you. Why didn’t you stop?’ Mr. Wixson did not go over two or three feet beyond the point where he struck the wagon. I observed Mr. Jordan looking over at the threshing machine. I could not help büt see him. His horse was walking along very slowly.”

All of the witnesses who saw the transaction except the plaintiff testified substantially the same as the witness whose testimony we have quoted.

The errors claimed are (we quote from the brief of counsel): .

First, error in the court’s charge as to the degree of care required of the plaintiff.
Second, error in the court’s charge in regard to the degree of care required of the defendant.
Third, error in refusing to give proper requests to charge.

Counsel quote a few sentences from different portions of the charge, and say they were improper statements of the law. The following is an instance:

“Bear in mind that the law also places the duty upon the plaintiff in this case to exercise the same degree of care and caution as he approached the automobile from the one direction as is placed upon the driver of ■the automobile under the circumstances of this case. In other words, the plaintiff himself was bound to use every reasonable means to avoid a collision between the two approaching vehicles.”

The argument is (we again quote from the brief):

“This court has recognized the difference between the use of ‘every reasonable precaution’ and ordinary care, and has reversed a case for the error of the trial judge in charging that a party must use both.” Levyn v. Koppin, 183 Mich. 232 (149 N. W. 993).

The trial judge, after stating the. claims of the parties, charged the jury, in part, as follows:

“I think at the outset it is advisable for me to read to you,.from the motor vehicle statute, portions which may apply to the issue which is to be submitted to you, ■and the material portions of which are, in substance, iis follows:
“ ‘Every motor vehicle operated and driven upon the public highways of this State shall be provided with adequate brakes sufficient to control the vehicle at all times and a suitable adequate bell, horn, or other device for signalling. Whenever a person operating a motor vehicle shall meet on the highway any other persons riding or driving a horse or horses or other draft animal or any other vehicle the person operating such motor vehicle shall seasonably turn the same to the right of the center of the traveled portion of the highway while the person approaching shall likewise turn from the center of the traveled portion of the highway so as to pass the motor vehicle on the opposite side of the center of the highway to which the motor vehicle is being turned. ,,
“ ‘No person .shall operate a motor vehicle upon the public highway at a rate of speed greater than is reasonable and proper, having regard to the traffic and the use of the highway, or so as to endanger the life or limb of any person or the safety of any property and shall not in any event while upon any highway run at a higher rate of speed than twenty-five miles per hour.
“ ‘Upon approaching a person walking in the roadway of a public highway or a horse or horses or other draft animals being led, or driven thereon, the person operating the motor vehicle shall slow down to a speed not exceeding ten miles an tour and give reasonable warning of its approach and use every reasonable precaution to insure tbe safety of sucb person or animal.’ * * *
“If you find from the evidence in this case that the defendant did not comply with this duty, and the injury resulted from his failure to do so without any negligence on the part of the plaintiff concurring, then plaintiff would be entitled to a verdict.
“You are further instructed that it was the duty of the defendant, when approaching plaintiff and his rig, to slow down to a rate of speed not exceeding ten miles per hour, and give reasonable warning of the approach of his automobile, and also to use every reasonable precaution to insure safety of the plaintiff and his horse;; and if you find that the defendant did not slow down to a speed of ten miles per hour or less, upon approaching the plaintiff, and that the injury to plaintiff resulted from his failure to do so and without any negligence upon the part of the plaintiff; and if you find that the defendant did not use every reasonable precaution to insure the safety of the plaintiff and his horse upon so approaching the plaintiff, and that the injuries resulted from defendant’s failure so to do and without negligence on the part of the plaintiff — your verdict as before stated would be in favor of the plaintiff. But in that regard, gentlemen, you should bear in mind that the law also places the duty upon the plaintiff in this case to exercise the same degree of care and caution as he approached the automobile from the one direction as is placed upon the driver of the automobile under the circumstances of this case. In other words, plaintiff himself was bound to. use every reasonable means to avoid a collision between the two approaching vehicles.”

It is clear, when that part of the charge which is criticised is read in connection with what precedes and follows it, that the criticism is shown to be without merit, and it distinguishes the instant case from Levyn v. Koppin, supra.

The charge was long, filling more than ten pages of the printed record, and fully covered every phase of the case. We do not think it misled the jury. We do not see how they could have arrived at a different verdict under the evidence.

Judgment is affirmed.

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


author: Ostrander, J.

text:
    DUNN v. DETROIT, JACKSON & CHICAGO RAILWAY.
    Street Railways — Interurban Road — Crossing Accident — Negligence-Personal Injuries — Lights—Signals.
    Plaintiff was struck and injured as he attempted to drive across defendant’s interurban track, on a dark night. He testified that he stopped, looked, and listened before he drove on the tracks, that he neither saw nor heard the approaching car, that no whistle or other signal was sounded, and that the car did not display a headlight. He discovered the car when it was about seventy-five feet away and • did what he then could to avert an accident. He claimed to have been two rods from the track when he made his first observation, and admitted that he did not look again until his horses were nearly across- the track, which his team crossed about at a right angle. The track lay along the street on which he was traveling and crossed to the north side at the point of the collision, the car coming from the direction in which he was going. Held, that the testimony warranted an inference that if a headlight had been in place on the car he would have been able to discover its approach, that the evidence was sufficient to sustain a verdict for plaintiff, who could not be held chargeable with contributory negligence as a matter of law.

      Error to Wayne; Van Zile, J.
    Submitted October 18, 1915.
    (Docket No. 147.)
    Decided December 21, 1915.
    Case by Fred Dunn against the Detroit, Jackson & Chicago Railway for personal injuries. Judgment for plaintiff. Defendant brings error.
    Affirmed.

      Corliss, Leete & Moody and William G. Fitzpatrick, for appellant.

      Edward M. Vining and William C. Gottman, for appellee.

       On the duty to look and listen before crossing tracks of an electric road, see notes in 15 L. R. A. (N. S.) 254, 23 L. R. A. (N. S.) '1224.

   Ostrander, J.

Plaintiff, in a wagon with a load of furniture, was driving a team of horses through the village of Dearborn, going west on Michigan avenue. It was about half past 8 o’clock in the evening. The night was dark. The street is 82 feet wide, and paved. West of the village the highway is. 66 feet wide, about 16 feet of it being macadamized. Defendant’s track occupies the center of the street in the village and the north side of the highway west of the village. Plaintiff was familiar with the situation, knew that he must cross the railroad track, and his testimony tends to prove that he drove so as to cross the angling track squarely, or nearly so. He was alone, and testifies that before- attempting to cross the track he stopped the team, looked before and behind him, listened, neither saw nor heard an approaching*car, and proceeded. His horses were walking. A car from the west struck the wagon, causing the injury complained about. He had no warning of the approach of the car, no headlight was burning, no gong sounded, no whistle blown. When he first saw the car, it was 75 feet from him. He then saw a light inside, or outside, of the car —knew that the car was coming. Testimony for defendant tended to prove that the collision occurred, not on the angling track, but about 150 feet east of the point where the track curves to the north, that the whistle was sounded some 500 feet from where it occurred, the headlight was burning, the car lighted inside, the car was slowed down on account of the approach to the angle in the track, and plaintiff’s position was not disclosed to the motorman until the car was upon, or was about to swing from the angling to and upon, the straight east and west track through the village. When plaintiff’s position was seen, he was in the middle of the track, headed west. Although every means to avert a collision was then employed, it could not be avoided.

There are various details of distances, time, and other circumstances not stated in the foregoing rather general outline of what the testimony tended to prove, relied upon in the trial court and here as establishing beyond question the contributory negligence of plaintiff, even if it be conceded that the headlight upon defendant’s car was not burning. A verdict for plaintiff was returned by the jury, and judgment was entered upon the verdict. The refusal of the court to direct a verdict for defendant at the close of plaintiff’s evidence and at the close of all the evidence, refusal to grant a new trial upon the ground that the verdict was against the weight of evidence, and the refusal of the court to give defendant’s requests to charge, are assigned as error. The requests to charge preferred by defendant were the following:

“(1) Under the evidence in the case, the plaintiff cannot recover, and your verdict will be for the defendant.
“(2) The plaintiff under the evidence is guilty of negligence which at least contributed to his injury, and your verdict will be for defendant.
“(3) To drive two rods after looking, and then going upon and across a railroad track in the nighttime without looking just before going upon the track and without reassuring oneself that the crossing was safe, is negligence as a matter of law preventing a recovery on the part of one struck by a car before he gets over the track, ho matter what the negligence of the defendant may be.
“ (4) By the clear and overwhelming weight of the evidence, the lights on the inside of the car were lighted before and at the time the accident happened.
“ (5) Even though the headlight was not burning as the car approached the scene of the accident, it is inconceivable that, had plaintiff looked at all, he would not have seen or heard the car as it was approaching in sufficient time to have enabled him to stop his team and let it pass.
“(6) The fact that the car struck the wagon before plaintiff had succeeded in getting across the track, according to his theory, is conclusive evidence that it was very near and was in motion approaching towards him at the time he claims to have stopped, looked, and listened.
“(7) It appears from plaintiff’s evidence that not more than three seconds elapsed between the time that he started up his horses and the instant of collision. Under the undisputed evidence and the physical facts, the car could not have been more than a few feet distant when this observation was made, and it was negligence for the plaintiff to start and attempt to cross the track.
“(8) Even if it be assumed that no whistle was blown or gong rung, the failure to blow a whistle or ring a gong cannot be said to have been the proximate cause of the accident, and for such failure no recovery could be had in this case.”

It is said in the brief for appellant:

“It does not answer for plaintiff to say that he looked and did not see, when the physical facts prove to a demonstration that if he looked he must have seen, or that he looked inattentively or heedlessly.”

According to the testimony of the plaintiff, when he stopped his team for the purpose of observation, it and the wagon were on the north side of and substantially parallel with the railroad track, which immediately in front of him curved to the right across the line of the course he had been pursuing. He did not turn at right angles to his former course, but did diverge from it to the south. On the course he took he had to travel a considerable distance before the rear of his wagon was across the track.

“Q. From the time that you looked west when your horses’ heads were two rods away from the point where you crossed this track, you never looked again, did you?
“A. Yes, I looked, drove my horses across.
“Q. And you did not look again until your horses crossed the track, is that right?
“A. Yes, sir.
“Q. After you made your last look to the west, you drove your horses two rods and across the width of the track before you looked again, and then, when you looked, the car was right on top of' you?
“A. Yes, sir. * •* * When I fist saw the car, it was 75 feet away.”

Recalled, the plaintiff testified, among other things:

“Q. In crossing the track in reference to looking, what did you do?
“A. I looked and drove my team across, and when I drove across there I was looking west. * * *
“Q. In other words, from this point where the heads of your horses were two rods away from the point of the track where you crossed, you had to swing the heads of your horses slightly and then square them around again to the south in order to cross the track at right angles. Isn’t that so?
“A. No, sir.
“Q. You did cross the track with your wagon wheels at right angles, did you?
“The Court: Right angles with the track?
“Q. Right angles with the track?
“The Court: When you crossed. Do you know what right angles means?
“A. Cramped to the right?
“Q. No, no; do you know what is right angles?
“The Court: Right straight across; did your wheels strike that track square across it, or did it strike it at an angle?
“A. It was pretty much of a right angle, as I could judge.
“Q. In other words, you testified the other day, didn’t you, that you aimed to let both wheels of your wagon strike the track at once?
“A. Yes, sir.
“Q. You wanted to go squarely across the track, that is what you said the other day?
“A. Yes, sir.
“Q. You did have to make some change, didn’t you—
“A. No, sir.
“Q. — in your direction?
“A. No, sir.
“Q. Then you had to swing your horses to the left, and towards the track then?
“A. I did not swing them to the left.
“Q. You did, I say?
“A. Yes, sir.”

There is, I think, a patent distinction between this case and Colborne v. Railway, 177 Mich. 139 (143 N. W. 32), a case cited and relied upon by appellant. The trial court apparently had it in mind when he refused a peremptory instruction to the jury. If it were conceded, or was fairly established, that if plaintiff had looked attentively he must have seen the car, or that he was inattentive in the observation he made, then, of course, a different case would be presented. But neither fact is conceded, and the inferences which appellant seeks to draw from all of the disclosed surroundings are not the only or necessary ones. At night, in the country, where cars or trains xare occasional, one expects to discover an approaching car or train by hearing or seeing it. One looks for a light, or for lights. It must be assumed that defendant’s car carried no burning headlight. It may be inferred that if it had carried a headlight plaintiff would have discovered it. As it approached plaintiff, when his team was standing and he was looking for it, the side of the car through which light radiated may not have been visible. In the'absence of a headlight, it is not certain that he could have distinguished the car, or learned of its approach. Usually, one can see a headlight a long ways in a dark night, and having attentively looked for one, within the range of vision, which is considerable, and discovered none, nor anything else indicating the approach of a car or train, it cannot be said as matter of law that it is negligence to rely upon what the vision has revealed, or failed to reveal. When one can see a light a mile, or for a less but very considerable distance, has looked attentively and discovered no light, he is apt to consider danger from that direction as impossible. . Especially would this be true when in proceeding to cross the track the driver is facing, or nearly facing, the direction from which danger is to be apprehended. In a city street, where one car follows another in more or less rapid succession, and in both directions, where vision is limited, prudent men do not, because they reasonably cannot, depend upon anything but attentive and frequent looking in both directions. In the Colborne Case it was established that when the driver of the automobile entered upon the track the car was directly upon him; that if he had looked he must have seen the approaching car. See a collection and review of our decisions in Manos v. Railway, 168 Mich. 155 (130 N. W. 664).

Being of opinion that plaintiff’s prudence, or" want of it, cannot be determined as matter of law, and that the verdict is supported by testimony which cannot be disregarded, I think the judgment should be affirmed.

Judgment affirmed.

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


author: Stone, J.

text:
    PEACOCK v. STINCHCOMB.
    1. Waters and Watercourses — Adjacent Landowners — Flooding Lands.
    The right to drain, or dispose of surface water on land cannot be exercised by concentrating and pouring it, by means of an artificial ditch or drain, in unusual quantities and velocity greater than would be natural, upon adjacent property.

    2. Same — Prescription.
    Prescriptive rights can only be exercised in the manner and to the extent that they have been used during the prescriptive period. ■
    3. Same.
    Evidence, in a suit for an injunction to restrain a defendant from maintaining a drain, reviewed, on appeal, and held,. to warrant the trial court in entering a decree restraining: the flowing of complainant’s real property.
    Appeal from Ionia; Davis, J.
    Submitted October 14, 1915.
    (Docket No. 94.)
    Decided December 21, 1915.
    Bill by Thomas L. Peacock against Theseus E„ Stinchcomb and another for an injunction. From a, decree for complainant; defendants'appeal.
    Affirmed.

      Rosslyn L. Sowers, for appellants.

      Hawley & Eldred, for appellee.

      On the right to flow of surface water, see note in 21 L. R. A.. 593.
      On the right to drain surface water into a watercourse, see note in 24 L. R. A. (N. S.) 903.

   Stone, J.

In this cause the bill of complaint was: filed to obtain an injunction restraining defendant Stinchcomb from maintaining a certain drain constructed by him, and from discharging waters through the same upon the lands of the complainant, and restraining each and both of said defendants from constructing any drain upon the lands of defendant Chamblin, whereby the waters from his land would be brought, or carried, therefrom upon the lands of said complainant.

Counsel have not furnished us with any plat or map of the premises involved, rendering it necessary to refer to descriptions thereof and conditions at considerable length.

In 1904 complainant purchased, and at the hearing below was the owner in fee of, the southeast quarter of the southwest quarter of section 35, less 10 acres in the northwest corner thereof, in the township of Sebewa, Ionia county. In 1908 he purchased another 40 acres, being 240 rods long by 26 rods and 11 feet wide, extending from the northeast part of said first-described land north to the north’ section line of said section. One William F. Sayers had been for 30 years the owner of 80 acres lying immediately east of and adjoining complainant’s said land. Extending east and west along the south line of complainant’s land, and the land of said Sayers, is. a county line road between the counties of Ionia and Eaton. Directly south of and across the said highway from said Sayers’ land and in the township of Sunfield, defendant Stinchcomb owns 40 acres of land extending south of said highway a distance of 160 rods, being what may be called “a long 40.” He also owns 80 acres of land extending lengthwise west of the south portion of the long 40 above mentioned; his land taken together being an L-shaped parcel. One Mrs. Rumfielt owned 40 acres directly south from complainant’s land, and lying between said highway and said 80-acre parcel of defendant Stinchcomb. Monroe Stinchcomb, a brother of defendant Stinchcomb, has for many years owned a parcel of land lying directly east of, and adjoining the long 40 of said defendant Stinchcomb. The right of way of the main line of the Pere Marquette Railroad, from Grand Rapids to Detroit, extends along and adjoins the south line of defendant Stinchcomb’s said land, and south of this right of way are the lands of defendant Chamblin.

Complainant’s 30-acre lot above described is low land, as is also a part of the 40-acre lot lying north. Said low land is difficult of drainage, and has never been adequately drained. A public drain, known as the Bliss and McClelland drain, was constructed about 30 years ago, and extends for some distance through the township of Sebewa. This drain does not touch complainant’s land, and the nearest it comes to it is on the farm adjoining on the west owned by one Lenhart. This drain does not furnish an outlet for the water that accumulates on complainant’s low land, nor is it of sufficient depth to afford an outlet to a drain across complainant’s low land, adequate to drain the same. After the construction of the Bliss and McClelland drain, and about 28 years ago, several landowners in the neighborhood joined in digging a private drain, commencing at the south side of the county line road, at a point about on the line between the land of complainant and said Sayers, and extending north through a culvert across the road, and thence along said line between complainant’s and said Sayers’ land, but on said Sayers’ side of said land, a distance of about 50 rods. Later this drain was extended by running it thence diagonally in a northwesterly direction to and across the land of complainant and said Lenhart, a distance of about 100 rods, until it intersected said Bliss and McClelland drain on said Len-hart’s land. This work was done and said extension constructed by said Sayers and one Halliday, who then owned complainant’s 30-acre parcel, and about the year 1896. About the time the ditch was dug from the highway along said Sayers’ west line, as above stated, a tile drain was constructed by the Stinehcombs, extending from the culvert across the highway above mentioned along the south side of said highway in an easterly direction about 40 rods to a sag-hole on defendant Stinchcomb’s lands, nearly opposite and across the road from said Sayers’ residence, where it ended. About the same time, said Sayer constructed a three-inch tile drain extending from a cat-hole on his land in front of Monroe Stinchcomb’s house, in a southerly direction to and across the road, where it intersected and emptied into the tile drain last above mentioned. Afterwards, and in the year 1902, Monroe Stinchcomb extended the tile drain above mentioned from the cat-hole on defendant Stinchcomb’s land, where it terminated, in a southerly direction across defendant Stinchcomb’s land, and upon his own land, a distance of 80 rods. This drain was constructed, in part of 6, in part of 4, and in part of 3 inch tile. It is claimed that an old wooden or puncheon drain had been constructed about 30 years ago, along the same line, but had been filled up and ceased to work at the time of putting in this tile drain.

About 18 or 19 years ago a drain extended westerly from the culvert across said highway above referred to, and along the north side of said Rumfielt land adjacent to the highway, a distance of about 12 rods, then turning to the south, nearly at right angles, was continued a distance of about 50 rods to a piece of woodland on said Rumfielt’s land. It was constructed about 2 feet deep to a ravine. It is claimed that the water collected in this ravine, and was thence carried down said ditch to and across said highway and settled on the lands of complainant. Later Asa Stinchcomb, defendant’s father, who then owned the land now owned by defendant Stinchcomb and Monroe Stinchcomb, extended a tile dram from the upper end of the Rumfielt drain across the Rumfielt land in a southeasterly direction about 20 rods; thence east by an open drain, a distance of about 40 rods, and entirely across the lands of defendant Stinchcomb and to and upon the land of Monroe Stinchcomb.. The point where this drain crossed the line between the Rumfielt land and the land of defendant Stinchcomb is 65 to 70 rods, south of said road, and from thence it runs in a southeasterly direction. About 90 rods south of the road on the long 40 of said defendant Stinchcomb there is a piece of woodland which extends back to the south to within 30 or 40 rods of the south line of said long 40. From the point where the tile drain, last mentioned, reaches the north line of this woodland, an open drain, extending south through the woodland, and through a clearing south thereof, to the south line of this 40-acre parcel, about midway of said land, was afterwards constructed. Its depth at the south line of said 40-acre parcel was only six or eight inches. South of defendant Stinchcomb’s long 40 and south of the railroad track, and at a point south of and opposite the terminus of this old drain on the Stinchcomb land, there is a large, deep cat-hole, or pond, on the land of defendant Chamblin, from which pond there is an old drain extending to said Stinchcomb’s drain. When the railroad was constructed, a tile was put through the railroad bed to permit the water to flow through from the pond to the said Stinchcomb drain.

From the terminus of the Rumfielt drain, on the Rumfielt land, as above described, defendant Stinchcomb also had another ditch extending to and upon his 80-acre lot, located south of and adjoining the Rumfielt land. After the construction of the Rumfielt drain, and at a point 30 or 40 rods south of the highway, and where it was 15 or 20 rods from said drain to the line, a puncheon drain was constructed from the Rumfielt drain to the Stinchcomb land, but no further. It is the claim of complainant that these several ditches upon the lands of Monroe Stinchcomb, and of the defendants, comprised the system of drainage of lands owned by these parties until the fall of 1913, and that those drains did not afford sufficient drainage for their said lands, and especially for the lands of defendant Stinchcomb, which contained several basins and low places where water collected and stood at times at considerable depth.

It was in evidence that in the fall of 1913 defendant Stinchcomb, without the knowledge or consent of complainant, constructed a new tile drain, extending from the south line of his long 40 northerly, and. west of the center line of said 40, to the above-mentioned culvert in the, highway, thus discharging the water from said drain to and upon complainant’s low lands. This drain is from 4 to 6 feet in depth, except at its commencement and terminus, where it is 30 inches in depth, and the tile that were used were 8-inch tile, except for a distance of about 60 rods at the south end, where 6-inch tile were used. At the time of the construction of this tile drain, two branch tile drains of 4-inch tile were extended easterly therefrom, both located on the north 20 acres of said long 40. One of said branch drains was about 30 rods south from said highway, and the other one about 50 rods south therefrom. Complainant testified that in February, 1914, defendant Chamblin told him that he had agreed to pay defendant Stinchcomb $60, or the difference between 6 and 8-inch tile, for the privilege of an outlet from said Chamblin’s land through said tile drain. In their answers both defendants denied any such offer or arrangement, but defendant Chamblin admits in his testimony that there was such a proposition, and that he so told complainant.

It is the claim of the complainant that the effect of this new tile drain was to bring water from the several parcels of land above mentioned in larger quantities, and more rapidly than ever before, upon said low land of complainant, without providing any outlet or drainage for such additional water, to his great damage. This is strenuously denied by the defendants, and may be said to be the main issue in the case. The questions presented by the record are mainly upon the facts. The trial court saw and heard the witnesses testify, and was better able to judge of the credibility of the witnesses whose testimony was conflicting, than we are. A decree was entered for complainant in accordance with the prayer of the bill. Both defendants have appealed. They claim a prescriptive right of flowage, and also that by the new drain the defendant Stinchcomb has not in any manner increased the flow of water from his land to and upon the land of complainant. While there is testimony to support this claim, we gather from the record that the effect, if not the purpose, of the construction of the new tile drain was, and only could be, to rid defendants’ lands of the surplus waters accumulated thereon, and to cast such waters upon the lands of complainant, and in larger quantities and much more rapidly than before, thus at times inundating complainant’s land.

While one has a right to drain and dispose of the surface water upon his land, yet he cannot lawfully concentrate such water, and pour it through an artificial ditch or drain, in unusual quantities and greater velocity, upon an adjacent proprietor. It is also well-established that a prescriptive right of drainage can only be exercised in the manner and to the extent that it has been used during the prescriptive period, and this rule is applicable here. Osten v. Jerome, 93 Mich. 196 (53 N. W. 7); Chapel v. Smith, 80 Mich. 100 (45 N. W. 69); Bruggink v. Thomas, 125 Mich. 9 (83 N. W. 1019); Breen v. Hyde, 130 Mich. 1 (89 N. W. 732); Township of Merritt v. Harp, 131 Mich. 174 (91 N. W. 156); Id., 141 Mich. 233 (104 N. W. 587, 108 N. W. 746); Cranson v. Snyder, 137 Mich. 340 (100 N. W. 674); Smith v. Township of Eaton, 138 Mich. 511 (101 N. W. 661); Fraam v. Covell, 170 Mich. 366 (136 N. W. 505).

( We are of opinion that the equities of the case are with complainant, and that his claim is not only sustained by a preponderance of the evidence, but is more in accord with reason and the conceded conditions than is that of the defendants.

The decree of the circuit court is affirmed, with costs to complainant.

Brooke, C. J., and Person, Kuhn, Ostrander, Bird, Moore, and Stbere, JJ., concurred.


text:
    SCEBA v. MANISTEE RAILWAY CO.
    1. Evidence — Street Railways — Negligence—Infants.
    In an action for Rilling plaintiff’s daughter, who was hit by defendant’s car at a street crossing, and who was shown to be only five years and three months old at the time of the injury, it was error to exclude interrogatories of plaintiff’s attorney as to what was the disposition and tractability of the child and what was the difference between the value of her help and the expenses of clothing and. other necessaries; also' whether her assistance would grow more valuable as she became older.

    2. Same — Value of Services — Minor.
    -Testimony that tended to throw some light upon what the pecuniary loss resulting from an infant’s death might be was admissible, and it has been held that some showing of injury or loss must appear.
    3. Same — Presumption.
    The law presumes, in the case of an infant’s death by wrongful act, that there has been a loss for which compensation may be given under the statute, and the loss may be estimated from the facts proved, in connection with the knowledge and experience possessed by all persons, in relation to matters of common observation.
    4. Same — Disposition—Damages.
    And it was improper to rule out testimony of the child’s teacher as to her disposition and habit of obedience, upon the alleged ground that it related to the school only.

    5. Same — Damages—Verdict.
    On error to review the denial of a motion for a new trial, the size of a verdict for plaintiff amounting to $71, covering the evidence relating to funeral and burial expenses only, was not so greatly insufficient as to require the court to reverse the case.
    Error to Manistee; Withey, J.
    Submitted October 18, 1915.
    (Docket No. 146.)
    Decided December 21, 1915.
    Case by Joseph Sceba, as administrator of the estate of Rosalia Sceba, deceased, against the Manistee Railway Company for the wrongful death of plaintiffs intestate. Judgment for plaintiff for an inadequate amount. Plaintiff brings error.
    Reversed.

      Thomas Smurthwaite, for appellant.

      Peter T. Glassmire (Max E. Neal, of counsel), for appellee.

      On damages in action by parent for death of child, see note Sn 17 L. R. A. 77.

      As to evidence of habits or character of person killed as affecting damages, see note in 1 L. R. A. (N. S.) 198.

   Stone, J.

This is an action on the case brought under the “Death Act” (3 Comp. Laws, §§ 10427,10428), to recover damages by reason of an injury resulting in the death of plaintiff's decedent. At the time of the injury complained of, the defendant owned and operated an electric street railway line in and through the city of Manistee. It was laid upon Eighth street, two blocks, from Kosciusko street on the' west, to Vine street on the east. Englemann street crosses Eighth street one block east of Kosciusko street, in a well-settled neighborhood, where there were many people, including children, passing. The closed cars used by the defendant at that time were known as “pay as you enter” cars, and one man performed the duties of conductor and motorman. The plaintiff, with his wife and two children — a boy about seven years old, and Rosalia, a girl aged five years and three months — resided on the east side of Englemann street about 200 feet north of Eighth street. He owned a house and lot there. Plaintiff was a laboring man, and had steady employment only a part of the time. In September, 1914, the child Rosalia began going to school, attending the kindergarten department, located south and west of the home. The usual course traveled by the little girl in going to school was south from the home, crossing the street railway track to the south side of Eighth street, then west one block to Kosciusko street, and thence south one block to the schoolhouse. She usually returned by the same route. Her school hours consisted of the forenoon session only. On October 28, 1914, Rosalia went to school at the usual hour and remained during the session, was released at about 11 o’clock, and started for home. One witness, who saw her, said she was “tripping” along on the sidewalk on the south side of Eighth street. She arrived at the corner of Englemann and Eighth streets, and took a diagonal course from the southwest to the northeast corner. While crossing the track she was overtaken and struck by one of the defendant’s east-bound cars, described as above, and was instantly killed. It was a bright, clear day, and there were no objects to prevent a clear view of the situation. The declaration alleged numerous acts of negligence, among them being that defendant failed and neglected to operate its car slowly, and failed and neglected to have its car under proper control, and failed to keep and maintain a diligent outlook for the safety of persons upon said street crossing, and also failed and neglected to use quick stopping devices, and to ring gongs, bells, or other known signals when approaching the said crossing.

The evidence varied as to the speed of the car; the motorman swearing that he was not running to exceed 10 or 12 miles an hour, while another witness testified as follows:

“In my judgment that car which struck this child was traveling at that time at 20 miles an hour, anyway; that would be my best judgment.”

We shall not state in detail the evidence relating to the claimed negligence of the defendant, for the reason that the question was submitted to the jury, and they found a verdict for the plaintiff, and the defendant has not appealed.

It is sufficient to say that an examination of the record satisfies us that the question of negligence was one for the jury; and, they having found for the plaintiff, he cannot be heard to complain of the charge upon that branch of the case, the error, if any, being harmless.

Upon the trial of the case it appeared that Rosalia was an active girl, in good physical condition; that the plaintiff was 39 years old; that his father and mother were both living; that the former was 77 and the latter 65 years of age; and that the expenses of the child’s funeral and burial were $71, not including the cemetery lot.

The mother of the child, Josephine Sceba, was sworn on behalf of the plaintiff. The following is her testimony, and the rulings of the trial court relating to it:

“I am the wife of Joseph Sceba and the mother of Rosa Sceba. I am 28 years old. My father and mother are both living. They live out in the country. My father is 64 years of age and my mother is 59. They are in good health. My health is fine. At the time of her death Rosa was 5 years, 2 months, and about 18 days old. She was born on the 10th day of August, in the year of 1909. Up to the time of her death she had good health.
“Q. And what was her disposition as to being kindly, tractable, and obedient?
“Counsel for Defendant: We object to that as immaterial and incompetent, and the manner in which the question was. asked.
“The Court: The objection is sustained.
“Counsel for Plaintiff: Note an exception.
“Counsel for Plaintiff: I didn’t get the ground of the objection or the ruling?
“The Court: Well, it simply goes to the measure of damages, and that is what you are after.
“Counsel for Plaintiff: Yes.
“The Court: And that- has no tendency to prove damages or disprove it. It is liable to be prejudiced on that subject.
“Counsel for Plaintiff: Well, I will want to ask her some more questions on that line, and I will say to you that in several cases it is held to be competent.
“The Court: I think, if you will examine that case, you will find the questions were put in a different' aspect.
“Counsel for Plaintiff: If it is the form of my question, I would be glad to change that for you.
“The Court: You can prove the usefulness of this girl.
“Counsel for Plaintiff: That is what I want to do.
“The Court: Proceed and do it. It has no tendency to do it the way you put it.
“Q. State whether or not, Mrs. Sceba, this child was of a helpful nature?
“A. Yes, sir. She was willing to do anything she could do, or help me in any way she could. She was good, and willing to work, and she was always coaxing me to do something, and she would always kiss me after I should tell her to do something, and I -always put her at something she could do. That is, quite a bit she could do that I would not have to do.
“Q. What, if any, work did you do, other than your housework, to help in supporting the family?
“A. Well, in summer I had a garden to take care of, and house work, and in the winter I did sewing and the housework. I had all I wanted to do. It kept me going. Before I was married, my work was farm work. Since I was married, I have had a garden on our own lot. We raised all the vegetables that were used in the house. I raised practically all the vegetables the family needed. Rosa helped me. She would water the cabbage and tomato plants. She would help me weed. She would water the chickens and feed them and gather the eggs. It helped me quite a good deal. I could be at something else, busy, and tell her what she could do. I could depend on her. She was skillful. I made the clothes for myself and children. We had quite a few fruit trees on the lot, and she picked the fruit.
“Q. In the manner you have stated, Mrs. Sceba, how would the benefits derived from her work and earnings, done by Rosa for you, compare with the cost of her maintenance?
“Counsel for Defendant: We object to that as immaterial and incompetent, as the record now stands.
“The Court: I am inclined to think it is incompetent.
“Counsel for Plaintiff: Think it is what?
“The Court: Incompetent. There is no proof that the lady has ever brought up any other children, or had any experience in that line.
“Counsel for Plaintiff: I did not hear.
“The Court: There is no proof this lady ever brought up and reared any other child, and no proof along that line, and no proof of experience or knowledge on her part, and you are calling for a conclusion.
“Counsel for Plaintiff: On her personal knowledge, she knows what it cost to maintain the child.
“The Court: There is no proof she had any knowledge what it cost to maintain the child, or what it would cost.
“Q. I will ask that question.
“Q. Do you know, Mrs. Sceba, about what it would cost to feed and clothe the child outside of your vegetables?
“Counsel for Defendant: I also object to that for the reason it is incompetent.
“The Court: The objection is sustained. It was all right until you spoiled it.
“Q. You have no knowledge of about what it would cost to feed and clothe your daughter?
“A. Of course, she could just now about earn her living while she was growing better and healthier, or I mean stronger, with her work that she helped me. I never kept track of what it cost to clothe her. It did not cost very much, because I made all her clothes myself and her hats and bonnets — all except her shoes. Her shoes were about all we had to buy for her.
“Q. I will ask you now, how the cost of materials, that you purchased for her food and clothing, would compare with what benefits you derived from her little efforts to help you out?
“Counsel for Defendant: We object to that as incompetent the way the record stands.
“The Court: I will sustain the objection, for the reason she has already answered the question, and I am doubtful whether it is competent or not. She has already said it was about even.
“Counsel for Defendant: I move to have that answer stricken out, if she answered it.
“Counsel for Plaintiff: I think it is fairly competent.
“The Court: I will let it stand for the time being, but it is pretty close to the line.
“Q. Now, Mrs. Sceba, with your knowledge of the disposition of Rosa, you can state whether or not her efforts in that behalf, and the benefits that were derived from her services, would increase or diminish?
“Counsel for Defendant: I object to that as incompetent.
“The Court: The objection is sustained. I think it 'is a question for the jury.
“Counsel for Plaintiff': Give me an exception.
“A. Rosa was of medium size for her age. I did not work out for other people at any other work except sewing.
“Q. State whether or not you have had opportunity to work out to any greater extent as this child grew older ?
“Counsel for Defendant: We object to that as incompetent and immaterial.
“The Court: I think so. It calls for a conclusion based upon the future, of which she could' have no knowledge, from the evidence already in, and which, may hereafter be put in the case. In other words, I think to admit that line of proof would be an invasion of the province of the jury.
“Counsel for Plaintiff: There are two classes of cases in Michigan on that subject. * * * (Here followed a discussion of the Michigan cases herein referred to.)
“The Court: I am trying to rule right along the other case you are talking about.
“Counsel for Plaintiff: If your honor is aware of the case, I have nothing further to say.
“The Court: I don’t think there is anything in that case that would admit the proof I have ruled out.
“Counsel for Plaintiff: Under the prior case it was.
“The Court: I do not know any case it was.
“Counsel for Plaintiff: I think they have got that pretty well down to solid rock, when they state the jury was as good a judge as the parents or anybody else. That is all of this witness. You may cross-examine.”
Cross-Examination: “Our little girl first began going to school the beginning of September, 1914. She was in the kindergarten. Miss Lorenz was her teacher.
“The Court: I think, in order to make this record safe, I will strike from the record the testimony of this witness of what the child earned and expenses of maintenance, as about equal. That is the substance or gist of what she said. I will strike it out. It calls for a conclusion, and it calls for simply the sentiment of this mother, as to the value of the services of this little girl; There is nothing to base it upon. She has given her testimony, and she has nothing upon which she can make that assertion. It is for the jury to say, and not for her to say. It can be stricken out.
“Counsel for Plaintiff: Note an exception.”

The case was submitted to the jury, and the trial resulted in a verdict for the plaintiff in the sum of $71.

In the course of its charge to the jury the court instructed them that if they found for the plaintiff, and found that the services of the child during her minority would have exceeded the cost of her maintenance, then the father was entitled to recover that amount, whatever they found it to be; that in passing upon that question they should take into consideration the probabilities of the life of the child and the probabilities of the lives of the parents; and the attention of the jury was called to the length of the lives of the grandparents, and of the father and mother of the child, and of the state of health of the grandparents and of the father and mother, and of the state of health of the child at the time of her death. The court said:

“All these things you are to take into consideration in passing upon this subject. If you find for the plaintiff, if he is entitled to recover anything, he shall recover the cost of the burial, of the child, the amount of which has been testified in the evidence and is uncontradicted — $71. * * *
“The law says that you are to give fair and just compensation to these parents and this father, the plaintiff in the case, if you find for the plaintiff, in regard to his pecuniary loss, and nothing else at all.
“Counsel has made some figures in your presence. They are not controlling upon you, and they were permitted, simply as a part of his argument, and the deductions he makes, or seeks to make, from the proofs in the case. It is your province to say finally what has been proven in the case, and what the damages are, if there are any over and above the $71.
“So I say to you finally and briefly that if you find the defendant’s negligence has been established, on any of these declared heads, in the manner I have suggested, your verdict will be for the plaintiff. * * *
“If you find for the plaintiff, he is entitled to receive at least $71, the cost of the burial of the little girl. If you find he has suffered a pecuniary loss because of her premature and early death, then he is entitled, in addition to the $71, to whatever you may fairly and justly find on that head, taking into consideration all the evidence in the case.”

There was a motion for a new trial, based upon the grounds, among others, that the verdict was wholly inconsistent, unjust, and contrary to law, and that the damages awarded were wholly inadequate.

In his reasons for the denial of the motion for a new trial, the circuit judge, among other things, said:

“It is true that a verdict like this shocks the sense of mankind, but that is because we have a sympathy which the law absolutely prohibits the jury from indulging in, or the court either. In my opinion, the law should permit damages for grief and sorrow, and then there would be damages of a substantial and tangible kind. My understanding is, the lawmakers refuse to indulge that, because it has been said by some writers that that would put a premium on the death of the child and jeopardize its life in very many cases; and that is probably true, nevertheless, so long as the law is as it is, and makes it purely and solely a question of pecuniary loss or profits, I think the verdict is right. I think that is the view the jury took of it. I made that plain to them, or tried to — that they could not indulge in either sympathy or prejudice, and that it was simply a matter of dollars and cents. There were men on that jury who know, I am sure, that to rear a girl from the cradle to her legal majority is an expensive proposition. Of course, it is not as expensive among the laboring classes, but there were members of that class on the jury, and they know. And the peculiar thing about it is that the latest decisions on that subject leave the whole question of damages or lack of it to the judgment of the jury, regardless of the proof. To my mind, that is a perversion of every principle of the law, but if it is the law, and is to obtain as the law1, then this court has no right to enter the jury box and say that they are mistaken in their judgment, because it is their judgment and nothing else, and it is based upon nothing. There wasn’t a word of proof in the case as to what it cost to maintain this child, or any other child, or what it could earn, or what any other child could earn. There was some proof — a little— as to what the child did. And I say, if that is the law, then I have no right to meddle with this verdict at all, on this ground.”

A judgment was entered in accordance with the verdict, and the plaintiff has brought the case here upon a writ of error, and there are 29 assignments of error. Many of these relate to the question of negligence, and, for the reason already stated, will not be considered by us. The assignments of error relating to the question of damages were:

(2) That the court erred in sustaining the objection of counsel for defendant to the following question put to Josephine Sceba on direct examination: “What was her disposition as to being kindly, tractable, and obedient?”
(3) Also, in sustaining the objection of counsel for defendant to the_ following question asked Josephine Sceba: “Q. I will ask you now how the cost of the materials, that you purchased for the food and clothing, would compare with the benefits you derived from her little efforts to help you?”
(4) Also, in sustaining the objection to the following question: “Q. Now, Mrs. Sceba, with your knowledge of the disposition of Rosa, you can state whether or not her efforts in that behalf, and the benefits that were derived from her services, would increase or diminish?”
(5) Also, in sustaining a like objection to the following question: “Q. State whether or not you would have had opportunity to work out, to any greater extent, as this child grew older?”
(6) That the court erred in ruling upon its own motion in striking certain of the testimony of Josephine Sceba from the record, as above set forth.
(7) That the court erred in sustaining the objection of counsel for defendant to the following question asked Nina Lorenz: “Q. What was her disposition, Miss Lorenz, as to being an obedient child?”

The twenty-third assignment of error is to the effect that the court in its charge to the jury erred, in that the cost of the burial was emphasized, and practically and in effect made the sole basis of damages, if the jury should find for the plaintiff. The twenty-fifth, twenty-sixth, and twenty-seventh assignments of error are based upon the portion of the charge above set forth. The twenty-eighth assignment of error is to the effect that the court erred, in that it did not instruct the jury as to the proper and lawful manner of computing the damages, or as to the elements of damages to the plaintiff, if the jury should find the defendant negligent as charged, which caused the death of Rosalia Sceba. The twenty-ninth assignment of error is to the effect that the court erred in denying the motion of plaintiff to set aside the verdict of the jury and the judgment entered thereon, and to grant a new trial for the reasons set forth in said motion. The second, third, fourth, fifth, and sixth assignments of error will be considered together. We note the fact that the rul-' ing upon which error is assigned in the third and fifth assignments of error, do not appear to have been excepted to, but the ruling of the court in striking from the record certain testimony covered by the sixth assignment of error was duly excepted to.

A careful perusal of this record has satisfied us that there was prejudicial error in the rulings of the court relating to the testimony of Josephine Sceba. In the earlier cases of Cooper v. Railway Co., 66 Mich. 261 (33 N. W. 306); Rajnowski v. Railroad Co., 74 Mich. 20 (41 N. W. 849); Hurst v. Railway, 84 Mich. 539 (48 N. W. 44); Charlebois v. Railroad Co., 91 Mich. 59 (51 N. W. 812); and Snyder v. Railway Co., 131 Mich. 418 (91 N. W. 643)—it was the practice to offer testimony generally, consisting of the judgment or opinion of witnesses as to the probable earnings, on the one hand, and cost or expense of rearing a child until majority, upon the other; and it was held that testimony, throwing any light upon what the pecuniary injury resulting from death would be, was admissible. And in the Hurst Case this court said:

“Some pecuniary injury or loss must be shown by the evidence.”

In the Charlebois Case it was said that the plaintiff must show that some person had suffered some pecuniary injury by the death, and that the statute did not imply that damages and pecuniary loss necessarily followed from the negligent killing. In the Rajnowski Case, it was held that:

“The testimony of witnesses who are shown by their knowledge or experience to be qualified to express an opinion upon the pecuniary value of such a life is admissible, not for the purpose of controlling, but of aiding, the jury in arriving at- a just conclusion.”

In the Cooper Case a judgment of $1,550 upon the death of a girl 11 years of age was sustained; and it was held that the jury could not give damages founded upon their fancy, or based upon visionary estimates of probabilities or chances. In the Snyder Case the action of the lower court in refusing to set aside, as. inadequate, a verdict of $250 for negligently causing the death of a boy between 11 and 12 years old, was. sustained.

In the case of Black v. Railroad Co., 146 Mich. 568 (109 N. W. 1052), this court did not hold that such evidence, as above referred to, was not admissible, but did hold that where evidence had been given as to the age, calling, and condition of health of the father, and of the age and condition of the mother, together with evidence that the child was healthy, intelligent, of a good disposition, and obedient to its parents, that was sufficient to authorize an award of substantial damages, and the court, in that case, refused to set aside a verdict of $1,500 damages. Justice MOORE, who wrote the opinion of the court, after quoting the reasons of the circuit judge in his denial of a motion for a new trial, and after calling attention to the cases of Parsons v. Railway Co., 94 Mo. 286 (6 S. W. 464), and City of Chicago v. Hesing, 83 Ill. 204 (25 Am. Rep. 378), and other authorities, concluded his opinion in these words:

“The jurors have all been boys. The average juror knows the conditions which surround a boy in a family like that of plaintiff. We think it cannot be said, as a matter of law, that there was no basis upon which to find a verdict for pecuniary loss.”

This case has since been cited with approval.

Applying either rule of evidence, as indicated by the above-named cases, we think the ruling of the trial court was prejudicially erroneous in refusing to permit Josephine Sceba to answer the question, “What was her disposition as to being kindly, tractable, and obedient?” and the question covered by the fourth assignment of error, and in striking out the testimony referred to by the court, covered by the sixth assignment of error. It is no answer to say that the mother did not testify in dollars and cents as to the value of the child’s earnings, or the expense of maintenance. She had testified generally, as to the nature and extent of those services, and the expense she had been put to in clothing the child. Her opinion or judgment, whether the child’s efforts, and the benefits derived from her services, would in the future increase or diminish, was admissible. We think she was competent to testify upon that subject. Such testimony» would not be mere speculation, .conclusion, or sentiment, but would have had a tendency to prove pecuniary damage. By the rulings above referred to, the jury were deprived of testimony which would probably have aided them in reaching a substantial verdict in the' case.

In denying the motion for a new trial, the trial judge said:

“There wasn’t a word of proof in the case as to what it would cost to maintain this child, or any other child, or what it could earn, or what any other child could earn. There was some proof — a little — as to what the child did.”

In our opinion, the principal reason why there was no evidence upon those subjects was because of the adverse rulings of the court in dealing with the testimony of Josephine Sceba. The infirmity in the charge of the court was that having erroneously narrowed the subject of the inquiry of the jury, by the rulings above referred to, the doctrine of the Black Case was not referred to, but was wholly ignored; so that the jury had no basis for the assessment of damages beyond the funeral expenses. We note the fact, however, that the plaintiff did not present any requests to charge, upon this subject, and we should hesitate to reverse the case upon the charge alone.

It has been held by many courts, including those cited in the Black Case, that the law presumes, in the case of the death of a minor child by wrongful act, that there has been a loss for which compensation may be given under the statute, and that the loss may be estimated from the facts proven, in connection with the knowledge and experience possessed by all persons, in relation to matters of common observation. 8 R. C. L. p. 885, citing many cases. While the verdict appears to have shocked the sense of the trial judge, had there been no errors in the rulings and charge, as indicated, we should not feel like holding that the damages awarded were wholly inadequate as matter of law. But we are satisfied that the amount of the verdict was the result of the errors above pointed out, and that the jury were too much circumscribed in their inquiry by the rulings and charge.

The witness Nina Lorenz, the teacher of the child, was asked a question, above referred to, which, being objected to as incompetent and immaterial, the court excluded, using the language, “Sustained so far as school is concerned,” to which ruling plaintiff’s counsel excepted. We hardly understand the purport of this ruling. We think it was competent for this witness, or any other person acquainted with the child, to testify to her disposition and habits of obedience. The record shows, however, that this witness later gave testimony as to the general disposition of the child, and we only refer to this ruling because it wa's consistent with other rulings which narrowed the scope of the jury’s inquiry, and led to the verdict and judgment in the case.

For the errors pointed out, the judgment of the court below is reversed, and a new trial granted,

Brooke, C. J., and Person, Kuhn, Ostrander, Bird, Moore, and Steere, JJ., concurred.