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    MILLER v. MICHIGAN CENTRAL RAILROAD CO.
    1. Master and Servant — Negligence — Employer’s Liability — Federal Act.
    In a suit under the Federal employer’s liability statute, 35 U. S. Stat, 65 (U. S. Comp. Stat. §§ 8657-8665), the employer is not made an insurer of the lives of his servants; unless some negligence is proved plaintiff is not entitled, to a judgment.
    2. Same — Railroads—Custom—Presumptions.
    Where plaintiff claimed that the defendant railroad company was negligent because it did not cause its freight house door to be - enlarged so as to provide for the entrance of unusually large cars, and it appeared that the situation as it existed at the time of the injury had been in existence for thirty years, and the door used during a large part of the time continuously in handling freight cars of this kind, no negligence was disclosed which would entitle plaintiff to a recovery, in the absence of any evidence tending to show that the construction was originally faulty or different from the way in which freight houses of other railroad corporations were constructed.
    3. Same.
    Negligence will not be presumed, it must be proved; and operations carried on in the usual manner with the customary precautions raised no presumption of negligence.
    4. Same — -Evidence—Negligence—Structures Near Track.
    It is -well settled that the rules relative to structures erected near railroad tracks on the main line and that applying to structures within the yards are entirely different and create different liabilities.
    5. Same — Assumption oe Risk — Workmen’s Compensation Act-Personal Injuries — Compensation.
    The contention that the assumption of risk is not a defense to an action under the Federal act relating to employer’s liability is not justified: it has been determined by the United States Supreme Court that the defense was not abolished by the terms of the statute.
    6. Same — Risks Assumed.
    Plaintiff, having knowledge of the existing danger and that the space between the refrigerator cars, which were frequently upon defendant’s line, and the door post of the freight house was a narrow one, was charged with the assumption of the risk of being caught between the post of the freight house and a large sized refrigerator car.
    Error to Bay; Collins, J.
    Submitted April 30, 1914.
    (Docket No. 23.)
    Decided April 19, 1915.
    Case by Susan Miller, as administratrix of the. estate of Andrew Miller, deceased, against the Michigan Central Railroad Company for the unlawful killing of plaintiff’s intestate. Judgment for plaintiff. Defendant brings error.
    Reversed; new trial denied.

      Humphrey, Grant & Humphrey, for appellant.

      Hall & De Foe, for appellee.
   McAlvay, J.

In this cause plaintiff brought suit as administratrix of her deceased husband against defendant to recover damages arising from injuries received by him which resulted in his death while in the employ of defendant company, caused, as is claimed, by the negligence of defendant. The trial of the issue joined in the cause resulted in a substantial verdict in favor of the plaintiff. The case is before this court for review upon errors assigned.

There appears to be but little dispute relative to the material facts involved in this case, which may be stated as follows:

Plaintiff's decedent, at the time of the accident, was employed by defendant as a freight conductor and was working with his crew switching cars in its yard at Bay City, where defendant railroad, which was engaged in interstate commerce, owned and used in its business a freighthouse located near the Saginaw river. This building was about 80' feet wide and 240 feet long, extending in length north and south. It was a substantial frame building, boarded and covered with corrugated iron on the outside. In the center of the north end is an opening 17% feet high above the top of the steel rails, and about 23 feet wide, through which are laid two parallel gauge tracks, running south into the building parallel with each other about 225 feet. The distance between these tracks is 6 feet 4 inches. Freight cars are run in and out upon them. The east track inside the building will hold six ordinary freight cars. The west track is a little shorter. Sliding doors were hung upon the above-described opening, through which the freight cars were taken in and out upon these tracks. On each side of this opening is a post 10 by 8 inches, resting upon a sill 10 by 10 inches, which forms the framework of the sides of the door. East of the easterly track inside the building is the platform or floor of this freighthouse, 3 feet and 11 inches above the top of the rail, and 3 feet 4 inches east of the easterly rail and parallel with it. This floor is built upon piers, and extends to the east side of the freight-house and its entire length from the north end to the freight offices on the south. It is about as high as the floor of the cars standing upon this track. Freight is unloaded from the cars onto this floor, where it is piled up or removed to the outside platform through the east doors. The outside of the door of an ordinary car standing upon this east track would be about 13 inches from the edge of this floor of the freighthouse. The west line of this floor of the freighthouse was flush with the west face of the east post of the north door above described, and they were the same distance from the east rail of the easterly track.

The freight offices of defendant company occupied the entire south end of the freighthouse beyond the snubbing posts at the end of these tracks. The floor of these offices was level with the freighthouse floor. On the west side of the west track there was a floor of the same character as that on the east side just described. There were doors on the east and west sides of the building and also two others doors in the north end, each about 15 feet away from the opening we have above described through which the cars went. The freighthouse is lighted from above by windows set into an elevation in the peak of the roof, making a skylight extending along the entire length of the roof over the freightroom.

Merchants’ Dispatch refrigerator cars are somewhat wider than ordinary freight cars, and from measurements given the distance from the face of the east doorpost to the side of such car with tiie car doors closed is 11 inches. With these car doors opened and hooked back this distance is between 3 and 4 inches. All cars are pushed into this freighthouse on these tracks by a locomotive. On the day of the accident, decedent, as conductor, was placing upon this east track five cars, the middle one of which was a Merchants’ Dispatch refrigerator car. These refrigerator cars had been handled by defendant company in and about this .yard and freighthouse for 15 years. By reason of the difference in the height of the freight-house floor above the car floor, which would not allow refrigerator car doors to be opened inside, it was necessary to open such doors and hook them back before putting them into the freighthouse. These cars had been picked up in the yard by decedent as conductor and Brakeman Jones, who with the engineer and fireman made up this crew, and as they were backed around the curve toward the freight-house, Jones, because of the curve to the east, to be able to signal the engineer, was riding on the east side of the car, which would first enter the freighthouse. Jones dropped off from the car when it was a few car lengths away from the freighthouse and moving slowly. He saw decedent, who had crossed the ya*rd to the freighthouse, standing east of the east track at the north door. He also saw Raymond, the freight-house foreman. Decedent, who had full control of this train, gave his signal to stop, which was immediately obeyed. Raymond then broke the seal of the refrigerator car and opened the doors, hooking back one door while Jones hooked the other. This was done in the presence of decedent, who at the time stood within two car lengths, looking at them.

Before backing the cars into the freighthouse it was the conductor’s duty to go up to the entrance and call out a warning to the men working inside that cars were to be backed in. Decedent gave this warning, and then signaled to back the train. In answer to this signal the cars started to back up slowly. He was standing not far from this east doorpost, which was the customary and proper place for a conductor to stand when he was placing cars in the freighthouse. He was looking toward the cars when they started to back, and then turned to look inside the freighthouse for a moment. He then turned his face north toward the cars, then looked south inside again, when Jones, who saw him step nearer to the opening, shouted to him, “Look out for the doors.” Decedent turned and looked at Jones, who was standing near the cars, and then looked back into the freighthouse. While he stood in that position he was caught between these car doors and the post and fatally injured. Jones, who saw what happened, signaled the engineer to stop the train, which was done at once. This accident occurred September 7, 1910, at about 2 o’clock p. m., on a bright, clear day. Decedent was at the time engaged in moving this refrigerator car, which contained an interstate shipment. He was an experienced freight conductor, acquainted with all the duties of such position and with all the conditions and surroundings of the work at this freighthouse, where he had been engaged in charge of switching operations continuously for a period of at least six years prior to the accident, during which time cars like the one by which he was injured were brought to this freighthouse every day and night in the same manner as the one on this occasion.

There were several counts contained in plaintiff’s declaration, all but one of which were abandoned upon the trial. This count upon which the case was submitted to the jury was based upon the Federal employer’s liability act. This count charged the breach of seven distinct duties, which, briefly stated, alleged negligence on the part of defendant in failing to provide intestate with a reasonably safe place to work; failure to provide a suitable depot and all appliances for the purpose for which they were employed; failure to build, construct, and maintain freighthouse entrances sufficiently large to be reasonably safe while looking along the sides of moving cars, so that intestate would not be required, when looking into the freighthouse in order to place the cars, to be in dangerous proximity to open refrigerator car doors; also charging that by reason of such negligence intestate, while employed in interstate commerce, performing his duties in placing cars in this freighthouse, in the exercise of due care, was caught between the open door of a refrigerator car and the side of the entrance to the freighthouse, causing injuries from which he died.

The record shows that during the trial of the case counsel for plaintiff stated, “We do not claim breakage, or anything of that kind,” and it is clear from the record that the only claimed negligence alleged and relied upon is that this freighthouse, which was built years before, when freight cars were smaller, did not have an entrance of sufficient width to allow trainmen to stand near it with safety while performing the work of placing these large cars within the freighthouse. This claim is briefly stated in plaintiff’s brief, as follows:

“We claim that, when the cars in use on these tracks became of such a size that the trainmen could no longer stand beside the door and do their work in safety, some provision should have been made therefor, either by widening the door, making a window, or other suitable opening through which the men could look in safety, or providing some place where they could stand to do their work without being in constant danger of being struck by cars.”

The record shows that this freighthouse and tracks in it were constructed in 1883 in accordance with plans of the engineer of the road, and was in accordance with the general plan of building such freight-houses and tracks for unloading purposes. There was no evidence in the case that any other railroads ever constructed freighthouses and tracks different from this one of defendant. It also appeared that there never before had been an accident at this place.

It appears from the record that at the close of plaintiff’s evidence defendant’s counsel also rested its case upon the record as it then stood. Defendant then moved the court to direct a verdict in its favor and against plaintiff of no cause of action, for the following reasons:

First, that there was no evidence showing, or tending to show, that defendant was guilty of any negligence that tended to cause or produce the accident resulting in the injuries to plaintiff’s decedent; second, that the happening of the accident could not be considered as evidence of defendant’s negligence; third, that by the undisputed evidence the accident resulting in the death of plaintiff’s decedent occurred as an ordinary risk of the business, and that the risk was assumed by the plaintiff’s decedent; fourth, that under the undisputed evidence the plaintiff was not entitled to recover.

The court denied this motion and counsel for defendant excepted. Plaintiff’s counsel then elected, as already stated, to go to the jury upon the count based upon the Federal employer’s liability act. Counsel for defendant called the court’s attention to the fact that this count charged the defendant with the violation of seven distinct duties, and asked the court to compel counsel for plaintiff to elect upon which of these allegations of negligence they relied. The court refused to compel such election, and defendant’s counsel excepted. The record also shows that plaintiff’s counsel asked to have the jury view the premises where the accident occurred. To this request defendant’s counsel objected. The court overruled such objection, and ordered the jury taken to the premises for that purpose. To this ruling and order defendant’s counsel excepted. Counsel for defendant proffered 24 requests to charge, which were refused by the court, and counsel excepted. A motion for a new trial was made later and refused, and reasons in writing were filed for denying the same, to which counsel for defendant excepted. The grounds upon which the motion for a new trial was based, other than those contained in the motion for a directed verdict, were: Because the verdict was against the weight of the evidence; because the damages allowed by the jury’s verdict were unwarranted and excessive; and because plaintiff’s decedent was guilty of contributory negligence.

Although the errors assigned by appellant are quite numerous, all but a few of them have been grouped by counsel for defendant, and those relied upon are considered under two general propositions:

First, that neither defendant nor any of its employees were guilty of any negligence causing or tending to cause plaintiff’s injury; second, that in any event it appears from the record that plaintiff assumed the risk.

These questions are duly raised by errors duly assigned upon exceptions taken to the denial of motions made and to certain portions of the charge of thé court and to the refusal to give certain requests to charge proffered by defendant, all in due and sufficient form, so that it will not be necessary to state them at length.

It is the contention of defendant and appellant that the record contains no evidence of negligence on its part. The consideration of this proposition will be much more easily presented when the negligence relied upon by plaintiff is clearly understood. As to the material facts in the case, there is practically no dispute between the parties, and from the statement already quoted from plaintiff’s brief it appears that the sole negligence upon which this action is founded is, as already quoted from plaintiff’s brief, as follows:

“We claim that, when the cars in use on these tracks became of such a size that the trainmen could no longer stand beside the door and do their work in safety, some provision should have been made therefor, either by widening the door, making a window, or other suitable opening through which the men could look in safety, or providing some place where they could stand and do their work without being in constant danger of being struck by cars.”

This eliminates the consideration of any and all negligence arising from all other sources, and bases the negligence relied upon entirely upon the construction of the tracks and the freighthouse. These tracks and this freighthouse were within the railroad yard of defendant company, and this work which plaintiff’s decedent was doing at the time of his injury, while engaged in interstate commerce, was within the same yard. This contention of plaintiff is based upon the claim that the evidence tends to show:

“That it was necessary for decedent to stand where he did and look into the building, and that he was doing this work in both of these particulars in the usual and ordinary manner, and in the only way in which it could be done, or ever had been done, by men of experience in the work, and that no one could stand in the usual and necessary position and look into the building without getting close enough to the cars to be caught as decedent was, unless he succeeded in dodging back every time a wide car or open door approached.”

Plaintiff follows this by again stating:

“There was no defect rendering this place unsafe in the sense of anything being broken or out of repair, but the place was defective and insufficient, in that it had become unsafe for and unsuited to the work required to be done.”

Plaintiff thereby claiming that the case is within the provisions of section 1 of the Federal employer’s liability act (35 U. S. Stat. 65), which provides that a common carrier railroad, while engaged in interstate commerce—

“shall be liable in damages to any person suffering injury while he is employed by such carrier in such commerce * * * for such injury * * * resulting * * * by reason of any defect or insufficiency, due to its negligence, in its cars, engines, appliances, machinery, track, roadbed, works, * * * or other equipment.”

It is clear from the record that this narrow space between the freighthouse floor and the sides of the cars on this east track, at most but 13 inches wide, was not a sufficient space for the men to stand and work, and plaintiff admits:

“There was no necessity for the men to work inside this building between the, platform and the cars, and they were not expected to do so.”

The foregoing states fully and at length the theory of plaintiff’s case largely as presented to this court in the exact words of counsel.

It is the contention of counsel for defendant that this claim of plaintiff does not state a case which constitutes negligence under the statute upon which this suit is brought; that the record clearly shows this train was not handled upon that day any different from the ordinary and usual way in placing trains and cars in defendant’s freighthouse. It may be stated without contradiction that the statute sued upon does not make the employer an insurer of the lives of its servants, and does not give a right of action for which the employer is made liable, unless negligence is shown. The negligence claimed in the instant case deals exclusively with the construction of this freighthouse and these tracks, used in this railroad yard by the defendant for about 30 years exactly in the same manner as it was used upon the day of decedent’s injury, and for 15 years of that time used continuously in handling these refrigerator cars, with other cars, all of which appears without dispute. As already stated, the construction of this freighthouse was upon the plans of the engineer of the road and in accordance with the general plan of building such freighthouses and tracks for unloading purposes. Plaintiff introduced no evidence to show that this was faulty construction, unusual or different from the manner in which freighthouses of other railroad companies were constructed and operated.

Where work is done and cars are switched and handled in the usual and customary way, with the usual precautions, negligence will not be presumed, but it must be proved that such usual manner is in itself improper. This court has so held.

“No negligence was established against the defendant. Gang planks of the same character had been used by the defendant for 15 years, and no accident had before occurred in their use. It cannot be said, as a matter of law, that it was negligence to use such a tool. * * * Defendant was using an appliance which long experience had shown to be safe. The law did not require it to do more.” La Pierre v. Railway Co., 99 Mich. 212, at page 214 (58 N. W. 60, at page 61).

This claim of plaintiff upon which recovery is based, reduced to its lowest terms, is that for the purposes of present use this freighthouse and these tracks were negligently constructed. It is well settled that the rule relative to structures erected near railroad tracks on a main line and that relative to structures within railroad yards are entirely, different as far as liability for negligence by railroad companies to their employees is concerned. We have already stated the only negligence upon which plaintiff relies in the instant case, and have already given in detail the length of time plaintiff’s decedent had been engaged in this work at this place, his intimate knowledge of all the surroundings, and the manner in which he for years had performed the identical service in which he was engaged at the time of the accident, his absolute control at this time of the cars which were being placed within this freighthouse, and his knowledge of the nearness of the east track to the doorpost and floor of the freighthouse. Our conclusion is that from all the evidence in the case no negligence on the part of defendant has been shown.

In a recent opinion handed down by this court, where an employee of a railroad company, who had been injured while riding into a roundhouse on the side of an engine tender of greater width than usual, which left so narrow a space between the side of the engine and the jamb of the door that he was caught and severely injured, and also where the counts in the declaration were predicated upon the liability of defendant under the Federal employer’s liability act, as well as the State act, this court said:.

_ “Liability of a common carrier railroad company, either under the Federal or State act, to its employees in case of injury, must be based upon some negligent act of the railroad company. * * * We are of opinion that the failure of the defendant to notify plaintiff of the danger in riding the tender into the roundhouse in the position assumed by him at the time of his injury was not negligence. The danger of assuming such a position upon any of the engines was an obvious one.” Hollingshead v. Railway Co., 181 Mich. 547 (148 N. W. 171).

This court also in the same case holds as follows:

“The rule which protects railroad employees from the existence of structures upon the right of way too close to the track is not applicable in a case of this character” (citing and quoting at length from Hogan v. Railroad Co., 209 N. Y. 20 [102 N. E. 555]).

2. In answer to the appellant’s contention that in this case plaintiff’s decedent assumed the risk of his injury, plaintiff insists that the defense of assumption of risk is not available in actions for personal injuries brought under the Federal employer’s liability act, arguing, not only that it is abrogated by the terms of the statute, but also that the statute, being remedial in character, should be construed to advance the remedy. The case was submitted to the jury by the trial court upon plaintiff’s theory.

Plaintiff further claimed at the time the case was submitted to this court that the question had not been passed upon by the Supreme Court of the United States, and that the weight of the authorities of the States and the Federal circuit courts of appeals favored the contention. An examination of the Federal authorities satisfies us that at that time there were indications in several opinions of the Federal Supreme Court of a contrary view. Later that court, in deciding the case of Seaboard, etc., Railway v. Horton, 233 U. S. 492, 34 Sup. Ct. 635, distinctly held that the defense of assumption of risk was available. That case came into the United States Supreme Court from the supreme court of the State of North Carolina. It was a case brought under the Federal employer’s liability act by plaintiff to recover damages for personal injuries sustained by him while engaged in interstate commerce, such injuries claimed to have been caused by the negligence of defendant in furnishing a defective water gauge for the steam boiler of his engine. On account of the importance of this case as the first positive utterance of that court, in construing the Federal employer’s liability act, bearing upon the issue of assumption of risk, we have quoted practically the entire opinion bearing upon the question. Mr. Justice Pitney delivered the opinion of the court. After a "brief statement of the facts in the case, and denying three motions to dismiss the writ of error as technical and without merit, the court said:

“Coming now to the merits, we need consider only certain assignments of error that are based upon exceptions to the action of the trial judge in giving and refusing to give instructions relating to the issues of defendant’s negligence, the assumption of risk, and contributory negligence.
“At the outset we observe that the judge evidently misapprehended the effect of the Federal act upon State legislation. Thus the jury was told that plaintiff had brought the action under the Federal statute; ‘And where Congress enacts a law, within the limits of its power, that law should be enforced uniformly throughout the entire United States. If it is in conflict with the State law, the State law is superseded. But where there is no conflict expressed by the statute of the United States, then the rule of the State prevails.’ This, of course, in the absence of a specific statement of the applicable rule of the State law, might be treated as academic. But the theory was carried into the specific instructions, to the extent that upon the questions of the employer’s duty and the assumption of risk by the employee, the charge was modeled rather upon the North Carolina statute than upon the act of Congress. * * *
“Upon the issue of defendant’s negligence, -the trial court charged the jury as follows: .‘It is the duty of the defendant to provide a reasonably safe place for the plaintiff to work, and to furnish him with reasonably safe appliances with which to do his work.’ And in various other forms the notion was expressed that the duty of defendant was absolute with respect to the safety of the place or work and of the appliances for the work. Thus: ‘If you find from the evidence that it [the locomotive engine] was turned over to him without the guard, and if you further find from the evidence that the guard was a proper safety provision for the use of that gauge, and that it was unsafe without it, then the defendant did not furnish him a safe place and a safe appliance to do his work, and if it remained in that condition it was continuing negligence on the part of the defendant, and if he was injured in consequence thereof, if you so find by the greater weight of the evidence, you should answer the first issue “Yes.” ’
“In these instructions the trial judge evidently adopted the same measure of responsibility respecting the character and safe condition of the place of work, and the appliances for the doing of the work, that is prescribed by the local statute. But it is settled that since Congress, by the act of 1908, took possession of the field of employer’s liability to employees in interstate transportation by rail, all State laws upon the subject are superseded. Second Employer’s Liability Cases, 223 U. S. 1, 55 [32 Sup. Ct. 169, 38 L. R. A. (N. S.) 44].
“The act is quoted in full in that case at page 6 (at page 169 of 32 Sup. Ct., 38 L. R. A. [N. S.] 44). By its first section a right of action is conferred (under conditions specified) for injury or death of the employee ‘resulting in whole or in part from the negligence of any of the officers, agents, or employees of such carrier, or by reason of any defect or insufficiency, due to its negligence, in its cars, engines, appliances, machinery, track, roadbed, works, boats, wharves, or other equipment.’
“This clause has two branches: the one covering the negligence of any of the officers, agent, or employees of the carrier, which has the effect of abolishing in this class of cases the coqimon-law rule that exempted the employer from responsibility for the negligence of a fellow employee of the plaintiff, and the other relating to defects and insufficiencies in the cars, engines, appliances, etc. But, plainly, with respect to the latter as well as the former ground of liability, it was the intention of Congress to base the action upon negligence only, and to exclude responsibility of the carrier to its employees for defects and insufficiencies not attributable to negligence. The common-law rule is that an employer is not a guarantor of the safety of the place of work or of the machinery and appliances of the work; the extent of its duty to its employees is to see that ordinary care and prudence are exercised, to the end that the place in which the work is to be performed and the tools and appliances of the work may be safe for the workmen. Hough v. Railway Co., 100 U. S. 213-217; Washington, etc., R. Co. v. McDade, 135 U. S. 554-570 [10 Sup. Ct. 1044]; Choctaw, Oklahoma, etc., R. Co. v. McDade, 191 U. S. 64-67 [24 Sup. Ct. 24], To hold that under the statute the railroad company is liable for the injury or death of an employee resulting from any defect or insufficiency in its cars, engines, appliances, etc., however caused, is to take from the act the words ‘due to its negligence.’ The plain effect of these words is to condition the liability upon negligence; and, had there been doubt before as to the common-law rule, certainly the act now limits the responsibility of the company as indicated. The instructions above quoted imposed upon the employer an absolute responsibility for the safe condition of the appliances of the work, instead of limiting the responsibility to the exercise of reasonable care. In effect, the jury was instructed that the absence of the guard glass was conclusive evidence of defendant’s negligence. In this there was error.
■ “The questions more particularly discussed, however, and upon which the decision seems to have turned in the supreme court of North Carolina, pertain to the issues of assumption of risk and contributory negligence. By section 3 of the act of 1908 it is declared that: ‘The fact that the employee may have been guilty of contributory negligence shall not bar a recovery, but the damages shall be diminished by the jury in proportion to the amount of negligence attributable to such employee: Provided, that no such employee who may be injured or killed shall be held to have been guilty of contributory negligence in any case where "the violation by such common carrier of any statute enacted for the safety of employees contributed to the injury or death of such employee.’ And by section 4: ‘Such employee shall not be held to have assumed the risks of his employment in any case where the violation by such common carrier * * * contributed to the injury or death of such employee.’ By the phrase ‘any statute enacted for the safety of employees,’ Congress evidently intended Federal statutes (citing such statutes). For it is not to be conceived that, in enacting a general law for establishing and enforcing the responsibility of common carriers by railroad to their employees in interstate commerce, Congress intended to permit the legislatures of the several States to determine the effect of contributory negligence and assumption of risk, by enacting statutes for the safety of employees, since this would, in effect, relegate to State control two of the essential factors that determine the responsibility of the employer.
“It seems to us that section 4, in eliminating the defense of assumption of risk in the cases indicated, quite plainly evidences the legislative intent that in all other cases such assumption shall have its former effect as a complete bar to the action. And, taking sections 3 and 4 together, there is no doubt that Congress recognized the distinction between contributory negligence and assumption of risk; for, while it is declared that neither of these shall avail the carrier in cases where the violation of a statute has contributed to the injury or death of the employee, there is, with respect to cases not in this category, a limitation upon the effect that is to be given to contributory negligence, while no corresponding limitation is imposed upon the defense of assumption of risk — perhaps none was deemed feasible.
“The distinction, although simple, is sometimes overlooked. Contributory negligence involves the notion of some fault or breach of duty on the part of the employee, and since it is ordinarily his duty to take some precaution for his own safety when engaged in a hazardous occupation, contributory negligence is sometimes defined as a failure to use such care for his safety as ordinarily prudent employees in similar circumstances would use. On the other hand, the assumption of risk, even though the risk be obvious, may be free from any suggestion of fault or negligence on the part of the employee; the risks may be present, notwithstanding the exercise of all reasonable care on his part. Some employments are necessarily fraught with danger to the workmen — danger that must be and is confronted in the line of his duty. * * * And a workman of mature years is taken to assume risks of this sort, whether he is actually aware of them or not. But risks of another sort, not naturally incident to the occupation, may arise out of the failure of the employer to exercise due care with respect to providing a safe place of work and suitable and safe appliances for the work. These the employee is not treated as assuming until he becomes aware of the defect or disrepair and of the risk arising from it, unless defect and risk alike are so obvious that an ordinarily prudent person under the circumstances would have observed and appreciated them. These definitions have been recognized and applied in numerous decisions of this court (citing cases).
“When the employee does know of the defect, and appreciates the risk that is attributable to it, then if he continues in the employment, without objection, or without obtaining from the employer or his representative an assurance that the defect will be remedied, the employee assumes the risk even though it arise out of the master’s breach of duty. If, however, there be a promise of reparation, then during such time as may be reasonably required for its performance, or until the particular time specified for its performance, the employee, relying upon the promise, does not assume the risk, unless at least the danger be so imminent that no ordinarily prudent man under the circumstances would rely upon such promise (citing cases).
“In the light of these principles, the rulings of the trial court in the case at bar must be considered.
“Defendant specifically requested an instruction that plaintiff’s right to recover damages was to be determined by the provisions of the Federal act, and that: Tf you find by a preponderance of evidence that the water glass on the engine * * * was not provided with a guard glass, and the condition of the glass was open and obvious and was fully known to plaintiff, and he continued to use such water glass with such knowledge and without objection, and that he knew the risk incident thereto, then the court charges you that the plaintiff voluntarily assumed the risk incident to such use, and you will answer the second issue, “Yes.” ’ The court gave this instruction as applicable to the issue of contributory negligence, and instead of the words ‘then the court charges you that the plaintiff voluntarily assumed the risk incident to such use, and you will answer the second issue “Yes,” ’ used the words, ‘then the court charges you that the plaintiff was guilty of contributory negligence, and you will find the third issue “Yes.” ’ To the refusal to give the instruction as requested, and the modification of it, defendant excepted.
“The trial court evidently deemed, as did the State supreme court, that the topic of assumption of risk, with reference to the circumstances of the case, was sufficiently and properly covered by the instruction actually given, as follows: After stating in general terms that ‘a man assumes the risk, when he takes employment, incident to the class of work which he is to perform/ but that ‘he does not assume the risk incident to the negligence of his employer in providing machinery and appliances with which he is to work/ the court proceeded as follows:
“ ‘On the other hand, the employer has the right to assume that his employee will go about the work in a reasonably safe way, and give due regard to the machinery and appliances which are in his hands and under his control, and if you should find from the evidence, by its greater weight, because the burden in this instance is on the defendant, that the plaintiff knew of the absence of the guard or shield to the water gauge and failed to give notice to the defendant, * * * whose duty it was to furnish the water gauge and appliance, and he continued to use it without giving that notice, it being furnished to him in a safe condition, then he assumed the risk incident to his work in the engine with the glass water gauge in that condition, although he might have handled his engine in every other respect with perfect care/ (Italics ours.) (The above italics are those of the Federal Supreme Court.)
“It will be observed that by this instruction the application of the rule of assumption of risk was conditioned upon the jury finding that the water gauge, when furnished to the plaintiff, was in a safe condition. Here again the court appears to have followed the local statute, rather than the act of Congress; for section 2646, Nor. Car. Revisal 1905, already quoted, has been held by the State supreme court to abolish assumption of risk as a bar to an action by a railroad employee for an injury attributable to defective appliances furnished by an employer. Coley v. Railroad Co., 128 N. C. 534 [39 S. E. 43, 57 L. R. A. 817]. The trial court, while recognizing that the act of Congress applied so far as its terms extended, but that by its terms the employee is not to be held to have assumed the risk in any case where the violation by the carrier of a statute enacted for the safety of employees contributed to the injury, at the same time held that, since no statute had been enacted covering such an appliance as the water glass gauge, the rights of plaintiff were such as he would have had under the State law. An instruction to the jury to this effect preceded the instructions we have just quoted.
“It is true that such an appliance as the water gauge and guard glass in question is not covered by the provisions of the safety appliance act [27 U. S. Stat. 531 (U. S. Comp. Stat., §§8605-8612)], or any other law passed by Congress for the safety of employees. * * * But the necessary result of this is, not .to leave the employer responsible for the consequences of any defect in such appliance, excluding the common-law rule as to assumption of risk, but to leave the matter in this respect open to the ordinary application of the common-law rule. The adoption of the opposite view would, in effect, leave the several State laws, and not the act of Congress, to control the subject-matter.
“By the instruction as given the application of the rule of assumption of- risk was confined to a single hypothesis that the jury should find the guard glass was in position when the engine was delivered to plaintiff on the morning of July 27th. This, as already pointed out, was one of the questions in dispute, plaintiff having testified that the guard glass was missing at that time, while his fireman testified (and in this was corroborated by circumstantial evidence) that it was in place at that time, and was subsequently broken. But by the common law, with respect to the assumption by the employee of the risk of injuries attributable to defects due to the employer’s negligence, when known and appreciated by the employee and not made the subject of objection or complaint by him, it is quite immaterial whether the defect existed when the appliance was first placed in his charge or subsequently arose. Hence, if the guard glass was missing when plaintiff first took the engine, as he testified, and he, knowing of its absence and the consequent risk to himself, continued to use the water gauge without giving notice of the defect to the defendant or its representative, he assumed the risk. _
_ “Defendant was entitled to have the requested instruction given respecting assumption of risk; and, as the charge actually given did not cover the same ground, there was error. * * *
“The judgment of the supreme court of North Carolina must be reversed, and the cause remanded for further proceedings not inconsistent with this opinion.”

In plaintiff’s brief it is admitted:

“If the common-law doctrine of assumed risk is applicable in this case, it was improperly submitted to the jury under the charge as given, as the trial court was of the opinion that there was no assumption of risk in any case where the statute created liability.”

This question of assumed risk has been decided by the Supreme Court of the United States against the contention of plaintiff in Seaboard, etc., Railway v. Horton, supra. It follows that no further discussion is necessary. The trial court was in error in not granting defendant’s motion, made at the close of plaintiff’s case, for an instructed verdict in its behalf, both upon the ground that no negligence on the part of defendant was shown, and also that plaintiff’s decedent assumed the risk of his injury.

The judgment of the circuit court is reversed, and no new trial is granted.

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


source: Caselaw Access Project

author: Brooke, C. J. Moore, J.

license: Public Domain

text:
    LORANGER v. CITY OF FLINT.
    1. Waters and Watercourses — Riparian Rights — Municipal Corporations — Waterworks—Diversion op Water — Dams.
    Oil an appeal from a decree of the circuit court enjoining defendant municipal corporation from diverting water from defendant’s millpond in excess of the quantity fixed by the decree which defendant was entitled by adverse user to divert, by an equal division of the court the decree is modified and affirmed by denying injunctive relief and remanding the case to the lower court for a determination of the damages on the ground or theory that the municipality has no such paramount right to the use of the water as to .entitle it to divert a part of the flow of a navigable river for domestic purposes.
    2. Same — Damages—Compensation—Power Rights.
    Without compensation to be paid, the waters of a stream cannot be diverted for municipal purposes to the injury of a riparian owner who is entitled to power rights in a river and maintain a dam and a mill operated thereby.

    Brooke, C. J., and McAlvay, Kuhn, and Steere, JJ„ dissenting.
    3. Same — Waters—Damages.
    In determining the damages to be allowed to a mill owner, whose ancestor sold property along the river to the defendant city for waterworks, and who tacitly consented to the use made of the water supply, for municipal purposes, the basis should be the amount diverted at times when complainant’s requirements for power purposes were affected, not the total volume consumed nor the water diverted when complainant’s power requirements were amply met by the remaining flow of the stream.
    Per Stone, Ostrander, Bird, and Moore, JJ.
    Appeal from Genesee; Withey, J., presiding.
    Submitted June 3, 1914.
    (Docket No. 9.)
    Decided April 19, 1915

      Bill by Minnie Loranger against the city of Flint to restrain defendant from diverting water from complainant’s mill pond. From a decree for complainant, both parties appeal.
    Modified and affirmed.

      Carton, Bray & Stewart, for complainant.

      Homer J. McBride (Brennan, Cook & Gundry, of counsel), for defendant.
    The complainant in this cause is the owner of a milling property and water power situated upon the Flint river, near the business center of the city of Flint. She inherited the property in question in 1899 from her father, William Hamilton. Her right to maintain her dam across the Flint river is derived from an act of the sixth legislative territorial council, approved March 30, 1835, entitled “An act to authorize the building of a dam across the Flint river.” Territorial Laws of Michigan 1834-35, p. 200. The act provides for the location of the dam at a point certain, and further provides that said dam shall not exceed five feet in height above common low water, and shall contain a convenient lock for the passage of boats, barges, canoes, rafts, and other watercrafts, not less than 90 feet in length and 16 feet in width. It further provides that nothing in the act contained shall be construed as giving to said grantees the right of flowage on lands belonging to the United States or any person without the consent of the United States or such person or persons, or in any manner interfering with other mills theretofore erected, and reserves the right to alter and amend the act at any time.
    This dam has been continuously maintained since the grant, and power generated by the use of the impounded waters is at the present time employed in the operation of a grist mill with a capacity of about 200 barrels a day.

      In the year 1883 a waterworks system for the city of Flint was established by a private company under a 30-year franchise obtained from said city. Complainant’s father, William Hamilton, was for a great many years president and general manager of said company. When first established, the plant of the water company was located at a considerable distance below Mr. Hamilton’s dam. Several large wells were dug in the expectation that a sufficient supply of pure water would be obtained to enable the water company to carry out its contract with the city. In this the city was disappointed, as the water obtained was sufficient in neither quality nor quantity. After much negotiation between the company and the city, the company moved its plant from its location below the dam to a point about one mile above the dam and upon the banks of the pond. There a site was selected by William Hamilton, the owner of the dam and water power, and he sold to the water corporation 2.65 acres for a consideration of $352.45. The deed to the company, dated March 1, 1890, conveyed no rights to draw water from the pond, although the company became, by force of the deed, a riparian owner. In 1903 the city, under the provisions of the franchise granted to the company, elected to purchase the waterworks system and property. The property was deeded by the water company to the city on December 1, 1903. No reference is made in said deed to water rights. After the location of the pumping plant above complainant’s dam, the water, though sufficient in quantity, was unsatisfactory in quality. Typhoid fever became frequently epidemic, which the health authorities attributed to the pollution of the city’s water supply by reason of sewage in the millpond. Agitation for a better supply continued until in April, 1909, when a resolution was adopted authorizing the mayor to appoint a commission for the purpose of investigating and reporting to the common council upon all questions for the betterment of the waterworks, plant, and property, extension of its mains, and providing for the inhabitants of the city an adequate supply of pure and wholesome water. As a result of the report of the water commission, it was determined by the city to establish a filtration plant in connection with its pumping plant. It was also determined to change the site of the pumping plant to a point a mile or more above the old plant, but still within the city and at a point well within the limit of complainant’s millpond, which backs the water up for a distance of eight or ten miles above the dam. A bond issue of $400,000 was authorized by a popular vote. Before the bonds were sold, complainant caused a notice to be served upon the city to the effect that she was advised that the present and prospective use of the waters of the Flint river by the city of Flint was unlawful and an invasion of her rights, and that it was her purpose to seek redress for the injury to her occasioned thereby. Negotiations for an adjustment of the rights of the parties having failed, the city proceeded with the erection of a new plant at the point decided upon, and it is now, and has for some time been, operating the same with success, and is supplying to the inhabitants of the city water suitable for domestic and other purposes. The connected capacity of the new plant is 23,000,000 gallons per day; that of the old was approximately 8,000,000 gallons per day. The filtration basins now in use have a normal capacity of 8,000,000 gallons per day.
    Complainant files her bill for the purpose of enjoining defendant city from diverting water from her millpond and for past damage, and, if injunctive relief is denied, then for future damages. The trial court made a decree, which, among other, things, granted the defendant the right to continue to divert the average volume of water which had been taken and pumped from the years 1890 to 1908, inclusive, or 353,000,000 gallons per year, and assessed complainant’s past damages at the sum of $1,097, and enjoining the city from taking any water from complainant’s pond in the future in excess of 353,000,000 gallons per annum. Defendant appeals generally. Complainant appeals from that part of the decree which allows defendant the continued use of 353,-000,000 gallons of water per year and from the assessment of complainant’s damages at the sum of $1,097. Complainant conceded upon the trial that defendant had acquired a right by prescription to take from said pond 235,790,000 gallons of water per annum.

      As to the right to divert water from nontidal stream for water supply purposes without compensation to owner, see note in 37 L. R. A. (N. S.) 312.

   Brooke, C. J.

(after stating the facts). Defendant’s first position is: That the defendant city has the absolute paramount right to divert from the Flint river (a public navigable stream) sufficient water for the use of the inhabitants of said city, for fire, domestic, sanitary, and other public purposes. That such right is superior to all riparian property rights acquired by complainant and her grantors. That all such rights now possessed by complainant in said stream are and always have been subordinate to the rights, of the public.

By section 3247, 1 Comp. Laws, incorporated cities are given authority to purchase, construct, and maintain waterworks for the introduction of water into such city and supplying the inhabitants thereof with pure, wholesome water for their ordinary and extraordinary uses, the extinguishment of fires, and for such other purposes as the council may prescribe. At the outset it may be said that there is a conflict in authority as to the right of a municipality to divert water from streams for the purpose of furnishing its inhabitants such water for domestic use without compensating injured riparian owners, and it is claimed the weight of that authority is against such right. The cases from foreign jurisdiction sustaining complainant’s view upon this point will be found collected in 37 L. R. A. (N. S.) 312, and note. There are, however, several jurisdictions in which a different view obtains, to which reference will be made later in this opinion. Complainant relies upon the following decisions in this State: Thunder Bay, etc., Booming Co. v. Speechly, 31 Mich. 336 (18 Am. Rep. 184); Hall v. City of Ionia, 38 Mich. 493; Stock v. Township of Jefferson, 114 Mich. 357 (72 N. W. 132, 38 L. R. A. 355); People v. Hulbert, 131 Mich. 156 (91 N. W. 211, 64 L. R. A. 265, 100 Am. St. Rep. 588); Stock v. City of Hillsdale, 155 Mich. 375 (119 N. W. 435). An analysis of these cases will demonstrate that they are not controlling of the question here presented. The one nearest in point is the case of Stock v. City of Hillsdale, supra. The distinctions to be noted between the facts in this case and the one at bar are that Bawbeese lake, the body of water from which the city of Hillsdale drew its supply, was in a sense private in character, and, in any event, lacked the qualities which are necessarily characteristic of a public navigable river. Again, the city of Hillsdale is not located upon the banks of said lake, whereas, the Flint river runs directly through the center of the city of Flint. At this point, and while considering the law as settled by this case, it is well to remark that, if the complainant is entitled to recover at all, the decree entered is wrong in two notable respects: First, under the circumstances of the case, she is not entitled to an injunction; and, second, she is not entitled to recover from the defendant for the value of water taken by it in excess of the prescriptive quantity, except at such times as such excessive use actually causes damage to her. We are of opinion that complainant’s right to recover must be wholly denied upon broader grounds. The following authorities sustain this view:

In the case of City of Philadelphia v. Collins, 68 Pa. 106, at page 123, it is said:

“It was conceded on the trial that, upon taking water for the citizens of the city for domestic purposes, no restriction could be placed by legislation or grant, and none was placed. If it could have been shown that it was this supply for domestic purposes only which occasioned the insufficiency for navigation, then the law of a paramount necessity would have existed, and have brought into play the doctrine of riparian rights, and justified the taking.”

In the case of City of Auburn v. Power Co., 90 Me. 576, at page 585 (38 Atl. 561, at page 565, 38 L. R. A. 188), we find the following language:

“We think the doctrine of the majority opinion is correct. It is sustained by reason as well as authority. Water for domestic use is a necessity. Man cannot exist without it. Water for the use of mills is a convenience only. And there is no conceivable reason why those who want it for domestic use should be compelled to buy it of those who want it for the use of mills.”

And it was said in Davis v. Winslow, 51 Me. 264 (81 Am. Dec. 573):

“Water, air, and light are the gifts of Providence, designed for the common benefit of man, and every person is entitled to a reasonable use of each. * * * A reasonable use is the touch-stone to which cases of this description must be subjected.”

In Davis v. Getchell, 50 Me. 602 (79 Am. Dec. 636), it is held that this right to a reasonable amount of water for domestic purposes necessarily implies a right to diminish the volume of the water.

In Haupt’s Appeal, 125 Pa. 211, at page 224 (17 Atl. 436, at page 438, 3 L. R. A. 536), the Chief Justice, quoting from City of Philadelphia v. Collins, supra, says:

“Every individual residing upon the banks of a stream has a right to the use of the water to drink and for the ordinary uses of domestic life; and where large bodies of the people live upon the banks of a stream, as they do in large cities, the collective body of the citizens has the same right, but, of course, in a greatly exaggerated degree.”

And again quoting from City of Philadelphia v. Com’rs of Spring Garden, 7 Pa. 348:

“The inhabitants of the district might have lawfully dipped, from the margin of the pool, water enough for their several necessities; but instead of drawing it by hand they have combined their funds to produce a cheaper and better transportation.”

Continuing, he says:

“There can be no such thing as ownership in flowing water; the riparian owner may use it as it flows; he may dip it up and become the owner by confining it in barrels or tanks, but, so long as it flows, it is as free to all as the light and the air. It follows, from what has been said, that dwellers in towns and villages watered by a stream may use the water as well as the riparian owner, provided they have access to the stream by means of a public highway.”

In the early case of Evans v. Merriweather, 3 Scam. (4 Ill.) 492, at page 495 (38 Am. Dec. 106), a case cited in nearly all the later authorities, we find the following language:

“It is proper to consider the wants of man in regard to the element of water. These wants are either natural or artificial. Natural are such as are absolutely necessary to be supplied, in order to his existence. Artificial, such only, as by supplying them, his comfort and prosperity are increased. To quench thirst, and for household purposes, water is absolutely indispensable. In civilized life, water for cattle is also necessary. These wants must be supplied, or both man and beast will perish. The supply of man's artificial wants is not essential to his existence; it is not indispensable; he could live if water was not employed in irrigating lands, or in propelling his machinery.”

In Barre Water Co. v. Carnes, 65 Vt. 626, at page 629 (27 Atl. 609, at page 610, 21 L. R. A. 769, 36 Am. St. Rep. 891), it is said:

“Dwellers in towns and villages watered by a stream may use the water for domestic purposes to the same extent that a riparian owner can, provided they can reach the stream by a public highway or secure a right of way over the lands of others. It is immaterial how the dwellers on the stream take the water for the purposes for which they may lawfully use it. They can drive their cattle to the stream and allow them to quench their thirst, and can carry water in pails to their homes; or each individual can carry the water in a pipe to his dwelling for such use, provided he can secure a right of way for that purpose; or the dwellers on the stream may combine their funds to procure cheaper and better transportation by means of a pipe, and may use the water for their several necessities to the same extent that they could if it flowed past their dwellings in a natural channel.”

The case of City of Elgin v. Hydraulic Co., 85 Ill. App. 182, is in point. There it is said, at page 193 of 85 Ill. App., quoting from City of Auburn v. Power Co., 90 Me. 576 (38 Atl. 561, 38 L. R. A. 188):

“Health is of more importance than wealth, and cleanliness is next to godliness; and we hold that the right of the people to an abundant supply of pure water, by which their health and cleanliness may be secured, is paramount to the right of millowners to have the water for propelling their machinery, and that, to the extent that the two rights conflict, the latter must yield.”

Continuing, the court said:

“We are therefore of opinion that the right of the public residing along Fox river to take water out of the same for domestic, sanitary, and fire purposes is paramount .to the right of the owners of said water power to use the same for the purpose of propelling the machinery of their mills.”

See, also, Watuppa Reservoir Co. v. City of Fall River, 147 Mass. 548 (18 N. E. 465, 1 L. R. A. 466).

In 1902 the supreme court of the State of Ohio passed upon the question in City of Canton v. Shock, 66 Ohio St. 19, at page 31 (63 N. E. 600, at page 603; 58 L. R. A. 637, 90 Am. St. Rep. 557), where the court said:

“From the earliest dawn of history to the present time, the primary use of water has been for domestic purposes, and' its secondary use for the purposes of power. People on the upper stream have the right to quench their thirst, and the thirst of their flocks and herds, even though by so doing the wheels of every mill on the lower stream should stand still. Pennsylvania R. Co. v. Miller, 112 Pa. 34, 41 [3 Atl. 780]. And the same right in the use of water as to quenching thirst extends to all uses for domestic purposes; and the rights of a lower proprietor to the use of the waters of a stream for power purposes is subject to the superior right of all upper proprietors for domestic purposes, and must yield thereto. All water powers of a stream are established subject to the superior right of all upper proprietors to use water out of the stream for domestic purposes; and if the upper proprietors have grown so large, or become so numerous, as to consume most or all of the water, the lower proprietors have no cause of complaint, because it is only what they should have reasonably expected in the growth and development of the country, and subject to which contingency they established their water powers.”

The supreme court of Minnesota has reached the same conclusion in Minneapolis Mill Co. v. Water Com’rs, 56 Minn. 485. At pages 489, 490 (58 N. W. 33, at page 34), the court there said:

“The plaintiffs are riparian owners on a navigable or public stream, and their rights as such owners are subordinate to public uses of the water in the stream. And their rights under their charters are, equally with their rights as riparian owners, subordinate to these public uses. There can be no doubt but that the public, through their representatives, have the right to apply these waters • to such public uses without providing for or making compensation to riparian owners. The navigation of the stream is not the only public use to which these public waters may be thus applied. The right to draw from them a supply of water for the ordinary use of cities in their vicinity is such a public use, and has always been so recognized. At the present time it is one of the most important public rights, and is daily growing in importance as population increases. The fact that the cities, through boards of commissioners or officers whose functions are to manage this branch of the municipal government, charge consumers for water used by them, as a means for paying the cost and expenses of maintaining and operating the plant, or that such consumers use the water for their domestic and such other purposes as water is ordinarily furnished by city waterworks, does not affect the real character of the use, or deprive it of its public nature. In thus taking water from navigable streams or lakes for such ordinary public uses, the power of the State is not limited or controlled by the rules which obtain between riparian owners as to the diversion from, and its return to, its natural channels. Once conceding that the taking is for a public use, and the above proposition naturally follows.”

This case was affirmed on appeal to the Supreme Court of the United States. See St. Anthony Falls Power Co. v. Water Com’rs, 168 U. S. 349, at page 371 (18 Sup. Ct. 157, at page 166). Mr. Justice Peckham, writing the opinion of the court, says:

“We are of opinion that the true construction of these territorial charters does not give such contract rights as are claimed by the plaintiffs in error. They were grants of power to the respective companies, under which they were licensed to build their dams out into the river for the purpose of utilizing the power, and of using the water that flowed down the river. These grants were in legal effect subject at all times to the paramount right of the State as trustee for the public to divert a portion of the waters for public uses, and they were also subject to the rights in regard to navigation and commerce existing in the general government under the Constitution of the United States. * * * There was no contract, by virtue of these charters, that the companies should always and for all time be entitled to all the natural flow of the water in the river, without regard to the right of the State, as above mentioned. The claim made by the companies seems to us most extravagant. The State or any particular subdivision thereof, acting under its authority, would, if these claims were valid, be forever thereafter prevented from using any portion of the waters of the river for any public purpose, unless compensation for such use were first made these plaintiffs. This construction of the meaning of the charters assumes the power of a territorial or State legislature t,o bind future legislatures in dealing with these public rights, and it prevents the latter from providing for the use of any portion of the waters for public purposes of the most important character without first making compensation to the plaintiffs for that use. If we should assume the validity of an act of the legislature of such a character (which, under the decision of this court in Illinois Central Railroad v. Illinois, 146 U. S. 387 [13 Sup. Ct. 110], is at least doubtful), it is clear that we ought not to adopt a construction leading to that result, unless the legislative act be plain and beyond all doubt. We are of opinion that these particular charters of the plaintiffs are not to be thus construed. The sections of the acts which are material upon this point simply authorize the companies to maintain their dams and sluices, and permit them to construct and maintain other dams, etc., for the purpose of manufacturing, or for improving any water power owned or possessed by the companies, in such manner or to such extent as shall be authorized by the directors. But there is no language in the acts providing that the companies shall thereafter and always have the right to the use of all the natural flow of the water down the river. Nor is such right a necessary and legal consequence of the language used. They may have acquired by these acts the right to build dams, etc., and the right to use such water as in fact and from time to time should flow down to their dam; but there is nothing in the language of the charters showing or implying that it was the intention of the State to grant to these parties the rights now claimed by them. ' It is difficult to believe that a legislature would ever grant to individuals or companies rights of that nature, even if it be assumed it had the power. It was proper and in accordance with a wise public policy to grant a privilege to these companies to build dams, etc., as stated in the charters, and to permit them, by virtue of the dams and sluices, to use the water that in fact and from time to time might come down the river; but it cannot be supposed that the legislature meant by any grant of this kind to warrant that for all future time no part of the water that might otherwise naturally flow down the river should ever be used under the authority of the State for any public purpose, without compensating the plaintiffs for that diversion.” •

The great and constantly increasing use of the waters of the rivers of this State for the production of power makes the matter here in issue one of prime importance.

The basic question involved is an open one in this State, and we are at liberty to follow such rule as is supported by sound reason and what we conclude to be the weight of authority. In the light of the foregoing authorities, and in consonance with the humanitarian principles there announced, we have no difficulty in reaching the following conclusions:

(1) The Flint river is in fact and in law a public navigable stream flowing through the heart of the city of Flint.

(2) The city of Flint is a riparian owner situated upon the banks of said river, and as such, and as an incident to such ownership, it is entitled to take from said river so much water as is reasonably necessary for the personal use of its inhabitants and its ordinary municipal needs without compensation to complainant.

In Attorney General v. City of Grand Rapids, 175 Mich. 503 (141 N. W. 890, 50 L. R. A. [N. S.] 473), we lately held the city of Grand Rapids to be an upper riparian owner and liable as such owner for pollution of the Grand river affecting a lower riparian municipality.

(3) The question of the right of the city of Flint to compel complainant to maintain her dam for the purpose of providing a reservoir for the use of defendant city without charge to the city is not involved in this case.

(4) The rule announced as to small private streams (Hall v. City of Ionia, supra), or as to small inland lakes (Stock v. City of Hillsdale, supra), has no application to the case at bar, which involves a public navigable river passing through the heart of defendant city.

The decree of the court below is reversed, and the bill dismissed.

McAlvay, Kuhn, and Steere, JJ., concurred with Brooke, C. J.

Moore, J.

I cannot agree with the result reached in this case by the Chief Justice. Many of the cases he cites are clearly distinguishable from the instant case.

In City of Philadelphia v. Collins, 68 Pa. 106, the question of the liability of the city for the diversion of water for domestic purposes was not involved. The city was sued for damages for impeding navigation by drawing down the water by using it for power purposes, and a judgment against it for damages was sustained.

In Auburn v. Water Power Co., 90 Me. 576 (38 Atl. 561, 38 L. R. A. 188), it was said:

“It is a settled rule of law in this State and Massachusetts that all great ponds (that is, ponds containing more than ten acres) are owned by the State. This is a rule of law peculiar to this State and Massachusetts. It is said to have been derived from the Colonial Ordinance of 1641-47. The rule, as stated by Chief Justice Morton, in a recent Massachusetts case, is as follows: ‘Under the ordinance, the State owns the great ponds as public property, held in trust for public uses. It has not only the jus privatum, the ownership of the soil, but also the jus publicum, and the right to control and regulate the public uses, to which .the ponds shall be applied. The littoral proprietors of land upon the ponds have no peculiar rights in the soil, or in the waters, unless it be by grant from the legislature.’ Watuppa Reservoir Co. v. City of Fall River, 147 Mass. 548 [18 N. E. 465, 1 L. R. A. 466].”

The court is careful to say:

“And it is only of our great public ponds and lakes that we are now speaking. We are not declaring or attempting to define the rights appertaining to wells, springs, rivulets, or small ponds. It is only of great ponds and lakes, the titles to which are held by the State for the use of the public, that we are now speaking. And of these great public ponds and lakes we affirm that, by the rules of the common law of this State, the people are entitled to a reasonable .portion of their waters for domestic purposes without being obliged to buy it of the owners of mill privileges.”

This language will indicate the reason of the Maine and Massachusetts cases.

The language quoted from Elgin v. Hydraulic Co., 85 Ill. App. 182, was taken from Auburn v. Water Power Co., supra, and was obiter dictum, for the opinion had already stated the plaintiff had no cause of action because not a riparian proprietor, and for the further reason that the city which was a riparian proprietor had not diverted more of the water than its reasonable share as a riparian owner.

Two of the cases cited by the Chief Justice are in harmony with his opinion. Canton v. Shock, 66 Ohio St. 19 (68 N. E. 600, 58 L. R. A. 637, 90 Am. St. Rep. 557), and Minneapolis Milling Co. v. Water Works, 56 Minn. 485 (58 N. W. 33). The last-named case was affirmed on appeal in 168 U. S. 349, 18 Sup. Ct. 157. The learned justice who wrote the affirming opinion stated therein that the property rights of the riparian owners are to be measured by the rules and decisions of the State courts of Minnesota. We think it must be said as to these two cases that they are not in harmony with the great weight of authority.

In 37 L. R. A. (N. S.) at page 312, it is said:

“There is some conflict among the authorities as to whether or not nontidal waters may be diverted for the purpose of furnishing a municipality and its inhabitants with water for domestic use without compensating injured riparian owners, but the great weight of authority denies such a right even where the municipality is located on the banks of the stream. The following cases adhere to the general rule that the waters of a stream cannot be diverted for municipal purposes to the injury of a riparian proprietor without compensating him for the resulting damage: Pine v. New York [C. C.] 103 Fed. 337, affirmed in 50 C. C. A. 145, 112 Fed. 98, and reversed on other grounds in 185 U. S. 98, 22 Sup. Ct. 592; United States v. Great Falls Manfg. Co., 112 U. S. 645, 5 Sup. Ct. 306; Ulbricht v. Eufaula Water Co., 86 Ala. 587 (6 South. 78, 4 L. R. A. 572, 11 Am. St. Rep. 72); Beckerle v. Danbury, 80 Conn. 124 (67 Atl. 371); Oelschleger v. City of Boston, 200 Mass. 425 (86 N. E. 883); Acquackanonk Water Co. v. Watson, 29 N. J. Eq. 366; Higgins v. Flemington Water Co., 36 N. J. Eq. 538; Gilzinger v. Saugerties Water Co., 66 Hun (N. Y.), 173 (21 N. Y. Supp. 121), affirmed without opinion in 142 N. Y. 633 (37 N. E. 566), (nonnavigable stream); Standen v. New Rochelle Water Co., 91 Hun (N. Y.), 272 (36 N. Y. Supp. 92) (nonnavigable stream); Sumner v. Gloversville, 35 Misc. Rep. 523 (71 N. Y. Supp. 1088) (holding, however, that the amount must be material); Fischer v. Clifton Springs [Sup.] 121 N. Y. Supp. 163, affirmed without opinion in 140 App. Div. 918 (125 N. Y. Supp. 1119); Gallagher v. Kingston Water Co., 25 App. Div. 82 (49 N. Y. Supp. 250); Gray v. Ft. Plain, 105 App. Div. 215 (94 N. Y. Supp. 698); Gardner v. Newburgh, 2 Johns. Ch. [N. Y.] 162 (7 Am. Dec. 526); Ehrgood v. Moscow Water Co., 4 Lack. Legal News (Pa.) 151; Heckscher & Co. v. Shenandoah Citizens’ Water & Gas Co., 2 Legal Chron. 273, affirmed in Shenandoah Co.’s Appeal, 2 Wkly. Notes Cas. (Pa.) 46 (nonnavigable stream); Reading v. Althouse, 93 Pa. 400; Lycoming Gas & Water Co. v. Moyer, 99 Pa. 615; Haupt’s Appeal, 125 Pa. 211, 17 Atl. 436 (3 L. R. A. 536); Leonard v. City of Rutland, 66 Vt. 105 (28 Atl. 885); Rigney v. Tacoma Light & Water Co., 9 Wash. 576 (38 Pac. 147, 26 L. R. A. 425); Swindon Waterworks Co. v. Wiltz & B. Canal Nav. Co., L. R. 7 H. L. 697; 45 L. J. Ch. (N. S.) 638, 33 L. T. (N. S.) 513; 24 Week. Rep. 284, 22 Eng. Rul. Cas. 226. And in Smith v. Rochester, 92 N. Y. 463 (44 Am. Rep. 393), referred to in Fulton Light, Heat & P. Co. v. State, the court, adhering to the rule that the title to the beds of fresh water streams is in the owners of the adjacent lands, held that, although actually navigable, such public easement gives the State no right to divert the water of such a stream or its source, or to authorize their diversion for any use other than navigation, except by virtue of the right of eminent domain and upon making just compensation; and that therefore a city cannot divert waters which would naturally flow through a nontidal stream for the purpose of furnishing a municipal water supply, without compensating the riparian owners injured by the diversion.”

The question of riparian rights has been before this court in several cases. See Thunder Bay, etc., Booming Co. v. Speedily, 31 Mich. 336 (18 Am. Rep. 184), and Hall v. City of Ionia, 38 Mich. 493.

In Stock v. Township of Jefferson, 114 Mich. 357 (72 N. W. 132, 38 L. R. A. 355), and People v. Hulbert, 131 Mich. 156 (91 N. W. 211, 64 L. R. A. 265, 100 Am. St. Rep. 588), there are many authorities collected from which quotations are freely made. A reference to these authorities may be helpful.

The case of Stock v. City of Hillsdale, 155 Mich. 375 (119 N. W. 435), is on all fours with the instant case. The only differences are in the names of the streams from which the water was diverted, the quantity thereof, and the names of the parties to the litigation. The streams ran through the defendant cities. The water diverted was for the use of the citizens of the respective municipalities, chiefly for domestic use. Justice Montgomery, speaking for the court, said:

“The circuit judge properly held that the city had not the right to divert the water as an upper riparian owner and to pump the water out of this lake for the use of citizens generally and to supply manufacturing establishments within its limits, and he also found that the use of the water in the manner in which it was used by the city had affected seriously the flow of water to the complainant’s mill properties, and implied that he had suffered some damage.”

In view of the facts disclosed by the record, it was held injunctive relief should not be granted:

“It is undeniable, however, that the complainant’s rights were infringed by diverting this water, and that the value of his property (the mill at Hillsdale) was to some extent affected by this fact, and we think that the rights of complainant may well be adjudged in this case. The complainant’s damages should be awarded in gross, even though he has not shown himself entitled to a writ of injunction. See Blake v. Cornwell, 65 Mich. 467 (32 N. W. 803), and Allen v. Electric Co., 144 Mich. 370 (108 N. W. 79, 115 Am. St. Rep. 453).
“The decree will be modified to this extent, and the case will be remanded, with the privilege of putting in further testimony upon the distinct question of the damages to complainant’s property by the conversion of the water for the use of the city to the extent of the capacity of the improved plant, as well as for the damage sustained by the increased use of water above the amount fixed by the prescription for the period of six years prior to the filing of this bill, and for this amount decree should be entered by the circuit court for the complainant, with costs.”

It is possible the time may come when the paramount necessity of a city to use the water of a navigable stream for domestic purposes will become so pressing that legislative action will be justified in changing the rule now existing, but this record does not disclose such necessity.

In the case before us the plant was originally erected with the tacit, if not express, consent of the millowner. It was conceded by the complainant on the trial that defendant had acquired a prescriptive right to take from the pond 285,790,000 gallons of water annually, while the learned trial judge found the quantity to be 353,000,000 gallons. If we apply the reasoning in Stock v. Hillsdale to the instant case, we should deny, because of the facts disclosed by the record, injunctive relief, and fix the damages in this proceeding once for all, and remand the case with the privilege of putting in further testimony upon the distinct question of the damage to complainant’s property by the conversion of the water for the use of the city, as well as for the damages by the increased use of water above the quantity fixed by the prescription for the period of six years prior to the filing of this bill, and for these amounts decree should be entered in the circuit court in favor of complainant.

In determining these damages, no allowance should be made the complainant for the use of water at times when such use did not reduce the volume of the water below the needs of the complainant’s mill. Complainant will recover costs.

Stone, Ostrander, and Bird, JJ., concurred with Moore, J.


author: McAlvay, J.

text:
    BERWICK STORE COMPANY, LTD., v. STARKS.
    1. Contracts — Acceptance — Waiver of Inspection — Freight — ■ Wrongful Delivery.
    Defendant claimed, in an action brought by the purchaser of a carload of potatoes, that it had shipped the property to the plaintiff with a sight draft attached to bill of lading containing directions to the carrier to deliver to the plaintiff only upon payment of the draft. Upon arrival of the carload of potatoes, plaintiff declined to receive the goods on the ground that the potatoes were frosted, the broker who made the sale advising defendant of the fact and that the plaintiff would take the car if defendant would protect it from loss. Defendant telegraphed to have plaintiff accept the carload subject to loss, if any. In the meantime, the carrier surrendered'the car of potatoes to plaintiff without requiring the presentation of the draft. Plaintiff wrote defendant for advice how the loss would be repaid, stating that if it paid the draft in full and a feasible proposition was made it would close the deal. The agent of the terminal carrier also wrote to the defendant stating that the position of plaintiff was that it was unwilling to pay the face of the draft and wait for an adjustment. There was no further correspondence or acceptance of the offer of settlement made by defendant. Plaintiff subsequently paid the draft. Held, that the correspondence did not constitute a valid contract or adjustment binding upon the defendant to permit plaintiff to recover from defendant the amount of damage by frost; that when plaintiff accepted the car without payment of the draft or production of the original bill of lading, it became liable for the contract price.
    2. Same — Sales—Acceptance and Receipt — Freight—Carriers— Right of Inspection- — Waiver.
    Where plaintiff received a carload of freight and took possession without the production of the order bill of lading to which a sight draft had been attached and forwarded by defendant, granting to plaintiff the right of inspection before delivery, and plaintiff did not pay the draft or produce the bill of lading upon receipt of the goods, it waived the right of inspection authorized in the bill of lading and accepted such freight absolutely, becoming liable for the purchase price.
    Error to Kent; Perkins, J.
    Submitted June 17, 1914.
    (Docket No. 91.)
    Decided April 19, 1915.
    Assumpsit by Berwick Store Company, Ltd., a co-partnership, against Leonard Starks for an alleged loss upon a carload of potatoes. Judgment for plaintiff. Defendant brings error.
    Reversed; new trial denied.

      Hall & Gillard, for appellant.

      Hatch, McAllister & Raymond, for appellee.
   McAlvay, J.

Plaintiff sued defendant in assumpsit for the amount of a certain claimed loss on a car load shipment of potatoes. Upon an issue joined, the case was tried before a jury. At the close of the proofs in the case, defendant moved for a directed verdict in his favor upon the following grounds: That the proofs fail to support the allegations of the declaration, and there was a fatal variance between the declaration and the proofs; that there was no written acceptance of the offer made by defendant, and no proof showing that the potatoes were accepted on the strength of the telegram of January 15th; that the proof shows no acceptance of the offer, but only a counter proposition; that the claim was not made within ten days from the date of the invoice; that the action was barred by the statute of limitations, which was pleaded. This motion was overruled by the court, holding that the plaintiff was entitled to recover; that the amount due plaintiff was a question for the jury, reserving a decision on the question relative to the statute of limitations. The court submitted the above question of fact to the jury which found for plaintiff the amount claimed, with interest. Later the court held that the statute of limitations was no bar to the action, and a judgment was entered. From the judgment which plaintiff has recovered against him, defendant has removed the case to this court for review upon errors duly assigned.

The material facts in the case necessary to be stated are as follows:

Plaintiff was a limited partnership located at Berwick, Pa. Defendant resided at Plainfield, Wis., and was engaged in the wholesale potato business, with headquarters at Chicago. He had for several years maintained an office at Grand Rapids, Mich., in charge of a manager, where, at the time of the transaction involved in this suit, he did business in his own name. In March, 1903, the business was incorporated under the name of L. Starks Company, an Illinois corporation, which was shortly after licensed to do business in Michigan. A branch office has since been maintained in Grand Rapids.

On January 9, 1903, W. S. Reed, of Bloomsburg, Pa., a broker, submitted to the Grand Rapids office of defendant an offer for a car load of potatoes at 60 cents per bushel, made by plaintiff, which was confirmed and then accepted by defendant. On January 9, 1903, the car load of potatoes was shipped from Mt. Pleasant, Mich., a shipping point of defendant, containing 33,000 pounds, and, in accordance with the offer, acceptance, and the bill of lading, a draft was prepared, with bill of lading attached, and sent forward to the bank at Berwick for collection. The invoice of the car was made on January 10, 1903. The exact date the car arrived at Berwick is not stated. It is admitted that this shipment was made upon a bill of lading which allowed inspection, and required surrender of the bill of lading before delivery of the property.

It appears from the record without dispute that the plaintiff for some time previous to the purchase of this car load of potatoes had an arrangement with the terminal carrier at that place to the effect that, by giving a general indemnity bond to the carrier, it would deliver on the switch of the American Car &■ Foundry Company, which was used by the Berwick Store Company, all cars received for them, without surrender of the bill of lading. The car in question under this agreement was so placed on this switch immediately upon its arrival without the payment of the draft or the delivery of the bill of lading. The record also shows that, after these cars were delivered on this switch by the terminal carrier, it had no supervision or control over them; that they were moved by the American Car & Foundry Company’s engines, and no claims arising against the railroad company for such delivery were intended to be covered by the general bond indemnity given by plaintiff.

After this shipment made by defendant, his first-knowledge that it had arrived at its destination was from a cipher telegram sent by the broker, W. S. Reed, from Bloomsburg, Pa., a place 12 miles from Berwick, dated January 14, 1903, which, translated,, reads as follows:

“Berwick, Penn., Jan. 14, 1903.
“Berwick Store refuses car, stock frosted. Car' shows frost. Will take it if you will protect from loss. Give us all the information you can about this. Will do best possible for you. We are awaiting instructions. Have rushed car into nearest round house.”
To which defendant answered:
“Grand Rapids, Mich., Jan. 15, 1903.
“W. S. Reed, Bloomsburg, Penn.: Have Berwick Store take car throwing out frost, if any, our loss. Confident will be very light. L. Starks.”
Defendant next wrote the following letter:
“Grand Rapids, Mich., Jan. 19, 1903.
“W. S. Reed,
“Bloomsburg, Penn.
“Dear Sir:'
“Yours of the 15th at hand and contents noted. We are confident loss on account of frost in Berwick car will not amount to anything at all. As soon as car is unloaded wish you would have him advise us just how they came out on the car, but we are confident that the loss, if any, will be very light indeed.
“Yours truly,
“L. Starks.”

On January 22d defendant telegraphed Reed:

“Railroad people report car to Berwick Store refused. Undelivered. What’s trouble? Answer.”

From the date of this telegram until the 30th of January following, defendant telegraphed daily to plaintiff, to Reed, and to the terminal carrier’s agent, to ascertain whether plaintiff had accepted or unloaded the potatoes, when he received an answer from Reed :

“Berwick Store wants to know if you are going to lift draft. Answer quick.”

And from the terminal carrier’s agent a reply:

“Potatoes in round house. Berwick Store will accept if draft is withdrawn.”

On February 2d following, he received from the terminal carrier’s agent the following message:

“Potatoes delivered on bond of indemnity. Bill of lading unsurrendered.”

Immediately after receipt of the terminal carrier’s telegram that the car had been delivered without the surrender of the original bill of lading, defendant notified this carrier company he would hold it responsible for the value of the potatoes. Plaintiff then wrote defendant, on February 6th, a letter, of which the following is a part:

“Kindly advise us how you intend to return to us the amount of loss we have suffered on car of potatoes. If we pay draft in full upon receipt of same and your proposition seems feasible we would be glad to close the deal.”

On February 7th the terminal carrier’s agent wrote defendant a letter in which he said, referring to the Berwick Store Company:

“The position they take is that they are unwilling to pay the face of the draft and then wait for an adjustment later on. I have every reason to believe that their bond of indemnity to our company is good.”

The case was tried by the plaintiff upon the theory that it accepted the car of potatoes on the strength of defendant’s telegram to Reed of January 15th, as follows:

“Have Berwick Store take car throwing out frost, if any, our loss. Confident will be very light.”

This was the theory upon which the case was submitted to the jury by the court, and is the sole reliance of the plaintiff in this court. The question, therefore, before this court, is reduced to very narrow limits.

It is appellant’s claim that this car of potatoes was shipped to plaintiff as consignee upon an order bill of lading allowing inspection, property not to be delivered before surrender of the original bill of lading; that upon arrival the car, without surrender of the original bill of lading, was at once delivered to plaintiff, who received it without inspection and took exclusive possession and control of it; that the telegram relied upon was in answer to a telegram sent by Reed from Bloomsburg, January 15th, as follows:

“Berwick Store refuses car, stock frosted. Car shows frost. Will take it if you will protect from loss. Give us all the information you can about this. Will do best possible for you. We are awaiting instructions. Have rushed car to nearest round house.”

Plaintiff also contends that there was no evidence in the case showing that the potatoes were accepted on the strength of the telegram of January 15th; that the telegram was a proposition which was never accepted by the plaintiff.

It is not disputed that the car, under a standing agreement between the terminal carrier and plaintiff, whereby plaintiff indemnified the carrier by bond, was at once delivered to the plaintiff upon its arrival, wrongfully and without any authority on the part of the carrier, and contrary to the terms of the bill of lading. Upon this subject the court said:

“In the first place it is conceded that this car load of potatoes was shipped down into Pennsylvania to the plaintiff as consignee with the privilege of inspection before acceptance and payment of the draft which was sent forward attached to the bill of lading. It is undisputed that, when the car arrived at Berwick, it was immediately placed upon the spur track leading to the plaintiff’s warehouse and was practically turned over by the railroad company to the plaintiff company.”

This undisputed proposition, standing alone, in our opinion, as a matter of law, was a delivery and an acceptance without inspection, which was waived by the plaintiff.

The controlling question in the case, therefore, is whether the telegram of January 15th, sent by defendant to Reed, under the circumstances, relieved the plaintiff from the effect of an acceptance without inspection. It must be admitted that had the car at that time been in the possession of the terminal carrier, and been inspected by plaintiff and acceptance refused on' account of the frozen condition of the potatoes, and plaintiff, after receiving this telegram, had paid the draft and taken the car, defendant would have been liable to pay for loss on account of frost. That was the condition defendant had a right to suppose existed at the time the telegram from Reed was received and his telegram answering it was sent. This is apparent from both these telegrams. Reed said:

“Berwick Store refuses car, stock frosted. Car shows frost. Will take it if you will protect from loss.”

Defendant’s answer says:

“Have Berwick Store take car throwing out frost, if any, our loss.”

In this telegram no authority was given to the railroad company to deliver the car, and none can be inferred. The record shows, without dispute, that defendant never authorized a delivery until the draft was paid. This was the situation, as far as any knowledge by defendant of a delivery of the car was concerned, until February 2d, although in the meantime he was repeatedly telegraphing to Reed, the plaintiff, and the railroad company to know whether plaintiff had accepted the car and unloaded the potatoes. On that date defendant was informed for the first time by a telegram from the terminal carrier’s agent:

“Potatoes delivered on bond of indemnity. Bill of lading unsurrendered.”

During this interim the only information defendant could get was to the effect that plaintiff would not accept this proposition unless defendant withdrew the draft. These telegrams and the letter of plaintiff show that plaintiff and the carrier’s agent both knew that plaintiff had no right to the car until it was released by the presentation of the bill of lading.

The undisputed testimony on the part of plaintiff in this case shows that under defendant’s telegram of January 15th plaintiff understood, before it was entitled to a delivery of the car, it was its duty to pay the draft and get possession of the bill of lading. It appears from the telegram sent by Reed and by the terminal carrier’s agent that defendant’s proposition would not be accepted unless the draft was withdrawn. Defendant never released the car and refused to withdraw the draft.

Defendant’s telegram of January 15th, made by him in ignorance of the actual facts of the situation, was a proposition to plaintiff which was not accepted, but was met by a counter proposition by the plaintiff, which defendant refused to accept. It follows that this telegram, upon which plaintiff relies, did not relieve it from the effect of its voluntary acceptance of this car of potatoes without inspection. As a matter of law, plaintiff accepted this consignment of potatoes when it took possession of them without inspection, on or before January 14, 1903. Williams v. Robb, 104 Mich. 242 (62 N. W. 352); Jones v. Bloomgarden, 143 Mich. 326 (106 N. W. 891). See, also, Weyl v. South Pacific Co., 156 Ill. App. 493. After-wards, while the car was in its own possession and under its absolute control, inspection was made. This occurred before defendant had any notice that the car had been delivered to plaintiff, and at least one day before the telegram of January 15th was sent by him. The evidence in the case shows that the potatoes were not accepted by plaintiff on the strength of this telegram.

Two of the grounds of defendant’s motion for an instructed verdict were: That “the proof shows no acceptance of defendant’s offer, but only a counter propositionalso that there- was no proof showing that the potatoes were accepted on the strength of the telegram of January 15th.

Our conclusion is that the court was in error in not directing a verdict for defendant as requested. Other questions do not require consideration.

The judgment is reversed, and no new trial granted.

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