author: McAlvay, J.

text:
    HART MILLING & POWER COMPANY v. A. B. McCRILLIS & SON, INC.
    Principal and Agent — Corporations — Sales — Breach op Contract.
    In an action for damages for failure to perform a contract for the purchase of certain flour, testimony tending to show that defendant corporation had, in different instances prior to the sale in question, paid for flour ordered by another branch corporation of a similar name and having a number of identical stockholders, operating under the laws of Massachusetts, that it had been the practice during a long period of time for the Massachusetts corporation to order goods as agent for the defendant and drafts for the purchase price were drawn by plaintiff upon defendant; that the letterheads of the Massachusetts company advertised that it was sales agent of defendant; and other evidence tending to show previous dealings between the parties and the manner of doing business considered and held, to present a question of fact for the -jury whether the Massachusetts company was agent for defendant for the purchase of the flour.
    Error to Genesee; Wisner, J.
    Submitted January 20, 1914.
    (Docket No. 134.)
    Decided June 7, 1915.

      Assumpsit by Hart Milling & Power Company against A. B. McCrillis & Son, Inc., a foreign corporation, for the breach of a contract of sale. Judgment for plaintiff. Defendant brings error.
    Affirmed.

      Farley & Selby, for appellant.

      Brennan, Cook & Gundry, for appellee.
   McAlvay, J.

This suit was brought by plaintiff against defendant in assumpsit to recover damages for a breach of an alleged contract of sale of.ten car loads of flour. Plaintiff recovered a verdict and judgment, and defendant brings the case to this court by writ of error for review.

Most of the facts in the case are not disputed. These parties had been in business and dealt with each other in flour for a great many years. Plaintiff is a Michigan corporation engaged in the manufacture and sale of flour and feed at Flushing, Mich. Its secretary, treasurer, and general manager is R. O. Hart. It was organized from a copartnership, and the same business had been conducted by Mr. Hart and by his father for a great many years in the same mill now occupied by plaintiff. Defendant A. B. McCrillis & Son, Incorporated, is a Rhode Island corporation incorporated in March, 1908, from a copartnership known as A. B. McCrillis & Son, doing business in Providence, R. I. It was incorporated with a capital stock of $200,000, by A. B. McCrillis, A. M. Mc-Crillis, and Howard B. Briggs, as the incorporators; the principal incorporators being the members of the former copartnership. At the same time a branch of this copartnership then doipg business in Boston, Mass., was incorporated under the laws of Massachusetts with a capital stock of $5,000, A. B. Mc-Crillis, A. M. McCrillis, and William A. Rogers as the incorporators; the principal incorporators being the same as the members of the Providence copartnership and as the incorporators of the Rhode Island corporation. Each of these corporations had a third incorporator holding but one share of stock merely for the purpose of making the required number of stockholders. Arthur M. McCrillis was secretary and treasurer of the Rhode Island corporation, and also treasurer of the Massachusetts corporation. His home was in Providence, R. I., and, as such officer of both of these corporations, he transacted the bulk of all their business from the Providence office, where he kept a duplicate set of books of the Massachusetts corporation. He testified that the Rhode Island corporation from time to time loaned money to the Massachusetts corporation with which to conduct its business, which loans, with interest, were charged against it in a running account.

“The Massachusetts corporation charged its goods to its customers, and, as it collected for the same, it deposited the. collections to the credit of the Massachusetts corporation in Boston banks, and then drew checks in round sums which were handed over to the Rhode Island corporation and passed to the credit of the running account against A. B. McCrillis & Son Company.”

Collections of both corporations were made from the Providence office through a collection department established for that purpose. Before the incorporation of either the plaintiff, defendant, or the Massachusetts corporation, when these parties were co-partnerships, they had dealt together in purchases and sales of flour for from 15 to 20 years, and always through the Providence office, under the firm name of A. B. McCrillis & Son.

After these firms were incorporated the Rhode Island Company did not deal so largely in flour, but added real estate and stocks and bonds to its business. The Massachusetts company dealt exclusively in flour and feed. After the incorporation of the Rhode Island and Massachusetts companies in March, 1908, these parties continued their business dealings, and these two Eastern corporations from time to time each placed their orders for flour with the plaintiff company as they desired. The custom was to book these orders as soon as received and await shipping orders from Boston or Providence, as the case might be. The instructions to plaintiff were always to send invoices and drafts to Providence and all payments to plaintiff for sales, whether ordered from Boston or Providence, were made upon drafts drawn upon the Rhode Island corporation and paid by it, which drafts were invariably attached to the bill of lading of the shipment. As we understand the record, no payment was ever made in any other way.

It is the claim of the plaintiff that the Boston corporation was the agent of the defendant. Following is the letter head used by the Boston concern:

“A. B. McCrillis & Son Co.,
“Flour.
“Sales Agent for A. B. McCrillis & Son, Inc., Providence, R. I.
“329 Board of Trade Bldg., Boston, Mass.”
The letter head of the Providence, R. I., corporation reads:
“A. B. McCrillis & Son, Inc.
“Office, 11 Exchange Place.
“Warehouse, 348 Canal Street.
“Boston Office, 329 Board of Trade Bldg.
“Providence, R. I., June 10, 1909.”
Also:
“A. B. McCrillis & Son, Inc.
“Boston Sales Agent A. B. McCrillis & Son Co.,
329 Board of Trade Bldg.
“11 Exchange Place, Providence, R. I.”

Frequently ^letters were written by A. B. McCrillis & Son, Incorporated, on letter heads of the Boston office, and in letters from that company the Massachusetts company was referred to as “our Boston office.” In the dealings between plaintiff and defendant, whenever there were any claims against plaintiff for excess or demurrage on flour shipped under orders from the Boston office, statements for the same would be rendered to plaintiff by A. B. McCrillis & Son, Incorporated, of Providence, R. I., and checks drawn by plaintiff to either one of the companies in payment of these bills would be sent to Providence and indorsed, and the bills receipted by the defendant company.

The manner of doing business between these parties, of which we have given an outline, is not disputed, and appears from the following excerpt taken from the testimony of Mr. R. O. Hart, plaintiff’s general manager:

“So far as I can recollect, we had never sold the Boston house flour for which the Providence house did not pay. In all our dealings with the Boston house we made all drafts on the Providence house. If there were any rebates or claims against us they came from Providence. We paid Providence these rebates and claims. We understood that the Providence house looked after the financial end of the Boston house. We had always done our collecting at Providence; did not know anything to the contrary. These 105 shipping instructions state that they came from the Boston house. * * * In every instance we were instructed to draw on Providence house. These shipping instructions do not include all the flour that we shipped that year. I have run over it to ascertain thé date and how much flour we shipped them from orders received prior to the 8th day of March, 1910, for the year — somewhere in the neighborhood of 14,000 or 15,000 barrels. In each of these instances the draft was drawn on the Providence house, and paid by the Providence house. The Providence house never questioned the right to draw drafts on them, and we were never criticised for it; no question was ever raised in reference to it. That had been our uniform practice during all our business career with the Boston house.”

The dispute in this case arises out of an order or contract made March 8, 1910, between plaintiff and A. B. McCrillis & Son Company, of Boston, for ten car loads, being 2,050 barrels, of flour, at $5.70 per barrel. None of this order was ever delivered, because the party making such contract refused to order shipment of such flour, although often requested so to do. As stated by plaintiff:

“This suit was brought against the Providence house for breach of this contract on the theory that the credit was extended to defendant by the sale to its agent, A. B. McCrillis & Son Company, for and on its behalf.”

It is the contention of defendant and appellant that the contract of March 8, 1910, having been made with the Massachusetts corporation, and not with the defendant corporation, this suit should have been instituted against the Massachusetts corporation, no agency, express or implied, having been established between the two corporations, and that the letter of February 28, 1910, was of such a character that no agency, express or implied, could be established, and that for these reasons the court should have directed a verdict in favor of defendant. This letter, upon which defendant relies, reads as follows:

“A. B. McCrillis & Son, Inc.,
“Flour.
“Boston Sales Agent A. B. McCrillis & Son Co.,
329 Board of Trade Bldg.
“11 Exchange Place, Providence, R. I.
“Feb. 28th, 1910.
“Hart Milling and Power Co., •
“Flushing, Michigan.
“Gentlemen:
“Your favor of February 26th is at hand, and the part of'the letter which strikes me most forcibly is your request that we furnish you directions for flour which you owe the Providence office.
“Permit me to say once more, and I hope that this time I can get it sufficiently emphatic so that it will be understood, the Providence office has no flour bought of you,.
“I cannot understand your persistence in desiring to deliver this flour to Providence, when it belongs to Boston. I don’t know whether you made the mistake in booking the flour for Providence, or some one of us made a mistake and requested you to. It is absolutely immaterial. There is a mistake. The Providence office does not own that flour; never has owned it; never will own it; no matter how many times you ask us for directions on it. You have been written so many times to this effect that we are putting it as strongly as we know how. We don’t want you to take offense at the strong way we put it. We have no hard feelings in the matter at all. We simply want it straightened out so that you will ship the flour on Boston office orders as should be done on cars which went forward some time ago.
“We note your suggestions that you carry everything in the name of the Boston office in the future. We cannot have this done. Our Providence office, and our Boston office, or as they should properly be called, the Rhode Island corporation and the Massachusetts corporation, are two separate and distinct firms, and we want you to carry the purchases of these two corporations separately. It is true that it so happens that the writer is treasurer of both corporations, and it is not improbable that at some time one corporation may sell to the other flour which they have purchased of you or other mills, in which event a letter signed by an officer of the corporation will be sufficient authority for you to transfer.
“Do not let what we have said above relative to the separate nature of the two corporations, confuse you on the drawing of drafts. All drafts should be drawn as formerly on A. B. McCrillis & Son, Incorporated.
“We sincerely regret that confusion has arisen over these purchases and shipments, and trust that you will get everything straightened out in a very few days. It has been a great deal of inconvenience to us and has upset our accounts considerably.
“With kind personal regards of the writer, we remain, Yours truly,
“Arthur M. McCrillis,
“Treas.”

As has already been indicated, the court refused to direct a verdict for defendant. The court also, after judgment rendered upon the verdict of the jury, denied a motion for a new trial. Upon both of these matters exceptions were taken and errors assigned. There are other errors also assigned which relate to the admission of evidence in the case.

The principal question in this case is raised by the motion for a directed verdict on the part of defendant on the ground that the sale of the ten cars of flour was made to the Massachusetts corporation, and there was no evidence in the record tending to show any agency existing between that corporation and the defendant in this case. Before discussing that contention something is required to be said concerning the letter of February 28, 1910, above quoted, which is the main reliance of the defendant in support of this motion. This letter was written to plaintiff by defendant, and, as appears on its face, was called out by a letter from plaintiff to defendant February 26, 1910, the material parts of which are, as follows:

“Flushing, Mich., Feb. 26, 1910.
“A. B. McCrillis & Son,
“Providence, R. I.
“Gentlemen:
“We have had considerable correspondence of late with reference to some flour, as we have had one lot booked up to the Providence house. We would like to ask if in 'the future it wouldn’t be a good plan to carry everything in the name of the Boston office, whether bought from Providence or not, and receive shipping directions from Boston office for it. We find you are badly tangled up on some of these sales and we hope to straighten them out for you in a day or two. We have written Boston today telling them where they were tangled up.”

We also quote such part of the letter written by plaintiff to defendant in answer to its letter of February 28th as refers to the purchase of flour then under consideration, relative to the charges for which the accounts of defendant had become “tangled:”

“Flushing, Mich., March 2, 1910.
“A. B. McCrillis & Son,
“Providence, R. I.
“Gentlemen:
“Your favor of the 28th at hand. We note what you say in reference to there being two distinct offices and that the sales will be carried out along that line.
“We want to call your attention to your remark. made here in the office, and this tangle is based practically on that remark. You said we must be very particular and keep the Boston and Providence offices separate and the 2,000 bbls. we booked for Providence offices and you now claim was for Boston has caused all the tangle.”

Both of these letters from the plaintiff were written to the defendant in the name of A. B. McCrillis & Son, Providence, R. I. They were received, as they were intended to be, as letters dealing with the Rhode Island corporation, and answered by it as such. All of these letters speak of the Boston and Providence offices.

The record shows without dispute that for years the Boston office was a branch of the Providence office, and also shows that after the incorporation of both branches their dealings were carried on in the same manner. This appears from the letters written by defendant to plaintiff in regard to its business wherein the Boston corporation was treated as “our Boston office,” and defendant’s stationery was printed to that effect, and the stationery of the two concerns was used by defendant company interchangeably when treating of the business of either office. The record also shows without dispute that plaintiff was always paid by the defendant company after the incorporation of both offices the same as before for all flour and feed sold by it to the Boston and Providence concerns, and that it had never been paid for sales made to the Boston office by the Massachusetts concern. The record further shows that these payments were made by drafts on defendant at its express order and direction. It appears that after the incorporation not only were the books of the Boston concern kept at the Providence office, but also that it was financed by the Rhode Island corporation.

It must not be lost sight of in this case that the letter of February 28, 1910, was not called out by the sale of flour out of which this litigation arises, but because of certain large purchases, which had been made by these parties of plaintiff, as appears from the excerpts of letters which called out and which answered this letter of February 28th; plaintiff contending that the trouble did not arise on account of its mistakes. The large amount involved was paid to plaintiff by defendant the same as all other orders for flour had been paid since their dealings with each other commenced. The Rhode Island office was in-, corporated for $200,000; the Boston office for $5,000. The record shows that plaintiff and its predecessors had always extended credit to the Rhode Island corporation, and always understood that it took care of the finances of both concerns, and during the entire term of the business relations between them orders had been given for flour and feed to plaintiff from both offices, although for the last two years of their dealings the greater number of orders, which at times were for amounts of more than $10,000, came from the Boston office.

The foregoing was the situation at the time of the writing the letter of February 28, 1910, and indicates the relations of the parties to this suit to each other. As indicative of the spirit which actuated and the intent and purpose for which this letter was written, we quote the last two paragraphs:

“Do not let what I have said above relative to the separate nature of the two corporations confuse you on the drawing of drafts. All drafts should be drawn as formerly on A. B. McCrillis & Son, Incorporated.
“We sincerely regret that confusion has arisen over these purchases and shipments, and trust you will get everything straightened out in a very few days. It has been a great deal of inconvenience to us and has upset our accounts considerably.”

There is ho material dispute between the parties as to the facts involved in this case. It is admitted that this contract to purchase 2,050 barrels of flour at $5.70 per barrel, amounting to $11,685, was made and entered into on March 8, 1910, that the purchaser refused and neglected to carry out said contract; and it is not disputed, but that the plaintiff by reason of such default has suffered the damages claimed.

The contention of defendant is, and this is the sole question in the case, that it neither directly -nor indirectly was a party to such contract, but that A. B. McCrillis & Son Company, the Massachusetts corporation, was the party which made this purchase from the plaintiff, and it is insisted that, as a matter of law, the court should have held that no agency, express or implied, had been established by plaintiff, and a verdict should have been directed in its favor.

The trial court denied the motion of defendant for an instructed verdict, and submitted the question of agency to the jury to be determined as a question of fact, holding that there was, in his opinion, evidence in the case tending to establish the existence of a disputed agency. From our examination of the record our conclusion is that the trial court was correct; that there was such evidence in the case.

The general proposition applicable to cases of disputed agency is laid down in Cyc. as follows:

“When any evidence is adduced tending to prove the existence of a disputed agency, its existence or nonexistence is, as a general rule, a question of fact for the jury, aided by proper instructions from the court, even though the evidence be not full and satisfactory ; and it is error for the court to take the question from the jury by directing a verdict, by instruction, by nonsuit, or by sustaining a demurrer to the evidence.” 31 Cyc. pp. 1672-1674, and cases cited.

In his charge the learned trial judge submitted the question of both an express and implied agency to the jury at length with great care. We are satisfied that in the record there is evidence to support the finding of the jury. It is not necessary to discuss other questions.

The judgment of the circuit court is affirmed.

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


source: Caselaw Access Project

author: KUHN, J. Ostrander, J.

license: Public Domain

text:
    BAUCINO v. FITZPATRICK.
    1. Master and Servant — Safe Place — Negligence — Sewers— Ditches.
    A contractor who was constructing' á water- main was charged with'the duty of providing-a-safe place for the work of a laborer who was engaged in excavating holes in the trench to enable other workmen to work under , and around a water main and who had no part in the digging of the trench: the master’s failure to provide sufficient bracing to prevent caving in, was negligence.
    2. Same — Delegable Duties — Fellow-Servants.
    It is the master’s duty to provide his servants with a reasonably safe place, in which to - work and the duty is . not one which can be delegated- so as- to evade liability for its .violation.
    3. Same — Assumption of-.Risk — Contrisutory Negligence.-
    Where plaintiff was a man experienced in working in trenches, and he called the attention of the foreman to ’. the fact that there was no shoriiig of other protection against caving in, ’and was told by the foreman to go ahead, and where it was his duty to' obey-his superior and rely upon the-judgment of the foreman, unless there was such obvious, danger that an, .ordinarily prudent person would not have, undertaken the work, even if ordered to do so, the question of. his contributory negligence should háve been submitted '■ to the jury by' the trial • court.’ ’ ■' ' ’ . ’¿
    4. Same — Municipal Corporations — Ordinances — Negligence— Duty to CCMply With'Ordinance. • ~- - ’ .
    The rules of the municipal board . of public -works' and ordinances., of •,a . city, requiring., contractors;,-to. guard trenches in public ways against accident by day and nigbt, also rules of the said board requiring that the sides of the trenches should be braced and sheathed to prevent caving in, were intended as a provision for the safety of the public and imposed duties upon the defendant with relation to the public, not to employees.
    Ostrander, J., dissenting on the ground that the doctrine of safe place was not involved.
    Error to Kent; McDonald, J.
    Submitted October 16, 1914.
    (Docket No. 119.)
    Decided June 7, 1915.
    Case by Andrew Baucino against James R. Fitzpatrick for personal injuries. Judgment for defendant, upon a directed verdict. Plaintiff brings error.
    Reversed.

      William J. Landman and Fred P. Geib, for appellant.

      Stevens T. Mason, for appellee.
    This is a personal injury case, arising out of injuries to the plaintiff caused by the caving in of a trench which was being prepared for the reception of a water main then being laid by the defendant, who was a contractor in the city of Grand Rapids. The trench was being dug in á public alley, and the plaintiff at the time of the accident.was doing the work of a “bell hole” digger. In doing this work, it was his duty to dig a place in the bottom of the-trench at the place where the small end of one pipe fitted into the-flare end of another, so as to permit the workmen to get their arms under and around the pipe in order to calk the joint. The plaintiff, who is a foreigner about 35 years of age and had difficulty in understanding the, English language, had worked in trenches more or less for five years in this country, and had also done similar work in Italy. He did not help dig the trench, but did this work of a bell hole digger at the bottom of the trench after the gang of diggers who worked ahead had dug the trench to its proper depth. At the time of the accident the work was being directed by a foreman, Sullivan, and no sheathing, braces, or planks were used in the trench at the time the plaintiff was injured. It is the claim of the plaintiff that he called the attention of the foreman to the absence of the planking, but was told by him to attend to his own work and to hurry.
    In his application for a plumber’s license which he had obtained from the city of Grand Rapids, the defendant agreed “to conform to the rules and regulations of the board of public works and the ordinances of the city of Grand Rapids relative to such work.” In his application for a permit to excavate in the public streets the defendant also agreed to “execute the work in strict conformity with the provisions of the rules and regulations of the board of public works. * * * ” The charter of the city of Grand Rapids authorizes the board of public works to “fix and regulate, pursuant to the ordinances or resolutions of the common council, the opening of street surfaces, and the places and manner of laying down and taking up all motor, gas, steam, sewer, and other pipes and wires placed in the streets and other public places in said city.” The rules of the board of public works adopted by virtue of the foregoing authority provide:
    “Whenever the sides of the trenches will not stand perpendicular, sheathing and braces must be used to prevent any unnecessary cavings.”
    The ordinances of the city of Grand Rapids provide:
    “Whenever any person or persons, company, association or corporation aforesaid, shall dig up or trench any street, avenue, lane, alley or public place for the purpose of laying down water or gas pipe or other conduit therein^ they shall do so with as little disturbance, impediment or interruption to the ordinary surface uses of the same as possible. * * * The work shall be well guarded, both by night and day, against accidents to persons and property during the entire progress, and the persons, company, association or corporation conducting the same, whether by contract or otherwise, shall be held liable to the city of Grand Rapids for any damages or costs recovered against it on account of any carelessness or negligence in that regard on their part.”
    At the close of the plaintiff’s proofs, the court directed a verdict in favor of the defendant.
   KUHN, J.

(after stating the facts). It is the contention of the plaintiff that there was evidence of negligence on the part of the defendant sufficient to submit the case to the jury, and that it cannot be said that the plaintiff assumed the risk of injury resulting from the failure of the defendant to shore up and brace the sides of the trench, and that it cannot be said that he assumed the risk of the defendant’s failure to comply with the ordinances of the city and the rules of the board of public works which required him to shore and brace the sides of the trench.

The plaintiff had no part in making the place in which he was required to do his work, nor was it a part of his duty to assist in shoring up or bracing the sides of the trench. He was directed to work in this particular place by the explicit command of the foreman Sullivan. Having, in mind the rule that where a verdict is directed for the defendant the evidence presented by the plaintiff should be considered in a light most favorable to him, in our opinion the doctrine of safe place applies in the instant case. The plaintiff had a right to assume that the place where he was called upon to work was safe and that he would not be directed to work in an unsafe place. Under the well-established rule in this State, it is the duty of the master to provide his servant a place reasonably safe to work in, and this duty is one which cannot be delegated by the master. Orso v. Engineering Works, 164 Mich. 568 (129 N. W. 673); Ranta v. Mining Co., 180 Mich. 459 (147 N. W. 609); Maki v. Copper Co., 180 Mich. 624 (147 N. W. 533).

It is said, however, that the plaintiff, being a man experienced in excavation work, knew the danger, as he called the attention of the foreman to the necessity of using planks so as to make the place safe. When the foreman’s attention was called by the plaintiff to the necessity of protecting the excavation, he was told to go on with his work and to hurry. It was clearly his duty to obey his superior and to rely upon the latter’s judgment, unless the danger was so obvious and imminent that an ordinarily prudent person would not have undertaken the work even though ordered by his master to do so. We do not think that this can be said in the instant case as a matter of law. Clearly there was enough testimony from which an inference might be drawn that the plaintiff did not regard the danger so immediate and imminent as to warrant him in disregarding the assurance and direction of his superior. This is a question which should have been submitted to the jury. See Asplund v. Mining Co., 177 Mich. 529 (143 N. W. 633), wherein the authorities on this subject are reviewed. See, also, City of Owensboro v. Gabbert, 135 Ky. 346 (122 S. W. 178, 135 Am. St. Rep. 462, 21 Am. & Eng. Ann. Cas. 705).

The circuit judge in directing a verdict held that the ordinances of the city of Grand Rapids and the rules of the board of public works imposed upon the defendant duties to the public and not to the employees working in the trench. In this we are of the opinion that he was clearly right, under the authority of Taylor v. Railroad Co., 45 Mich. 74 (7 N. W. 728, 40 Am. Rep. 457), affirmed in Maclam v. Hallam, 165 Mich. 686 (131 N. W. 81). The language of the ordinance and the rules of the board of public works is convincing that they were intended alone for persons using the street, and imposed a duty to the public and not to the individuals working in the trench. Being of the opinion, however, that the question of a safe place raises a question of fact for the jury, the judgment must be reversed and a new trial granted.

Brooke, C. J., and McAlvay, Stone, Bird, Moore, and Steere, Jj., concurred with Kuhn, J.

Ostrander, J.

(dissenting). Upon the facts disclosed by the record, I think the doctrine of “safe place” is not involved. The laying of a water main in a street involves the digging of a trench, the laying and the connecting of the sections of pipe, and the filling of the trench. It is a work of continuous construction from the time the ground is broken until it is replaced. Various methods may be, and are, employed to protect those engaged in the work of construction. But it seems to me plainly a misnomer to say that at any time during the progress of the work the master is under any duty to provide for the workmen a safe place within the meaning of the legal doctrine of “safe place.” The duty of the master employing the men is in such a case one which grows out of the assurance that they can work in the place upon the ordinary conditions of safety usually found in such places. If this involves shoring up the sides of the trench, and shoring has been omitted, then the assurance has been falsely extended. Oné difference between the doctrine of safe place and the one I have indicated is that with respect to the latter the duty of the master is delegable, and I think - no case can be found in which it has been held, in work such as that of digging a trench or sewer, that if the master provided material the duty of using it was not á delegable duty. There was testimony tending to prove that plaintiff called the attention of the foreman to the fact that the walls of the trench were not shored up, that there were no plank there,, that such plank as had been furnished for use were at another place, excepting,- perhaps, some unsound, useless plank. There were a few rotten pieces, but they were not of use. I think therefore there was some testimony tending to prove the negligence of the defendant, whose foreman gave plaintiff, impliedly at least, the assurance that the place was safe enough, that there were no plank there, and that they could not stop the work to get plank. This- being so, it cannot be said, as a matter of law, that the plaintiff assumed the risk. I agree with Mr. Justice Kuhn in what he has said about the' ordinance of the city of Grand Rapids, and in reversing the judgment and ordering a new trial.


author: Kuhn, J. Brooke, C. J. Per Curiam.

text:
    WEITZEL v. DETROIT UNITED RAILWAY.
    1. Appeal and Error — Weight of Testimony — Directed Verdict —Review.
    On error from a verdict directed in favor of defendant, the testimony must be considered in the light most favorable to plaintiff’s claim.
    2. Street Railroads — Negligence — Infants — Evidence — Contributory Negligence.
    Where plaintiff, a minor of above -nine years of age, started to cross a street and reached the center of the street between the double tracks of defendant railroad company as a car approached from the west, when he observed two automobiles approaching from the opposite direction at about the same distance from him as the street car, at a high rate of speed, and the evidence showed that his father had instructed him shortly before the accident in the proper precautions to take in crossing the street, but that in the perilous position in which he found himself he adopted the wrong course and attempted to cross in front of the car, he was not chargeable with such contributory negligence as to bar his recovery as matter of law.

    3. Same — Exposure to Peril — Fright.
    An infant is not chargeable with such a degree of care that when suddenly exposed to peril he is required to exercise the same coolness or forethought that an older or experienced- person would manifest; an allowance may be made for the state of mind or fright to which the. injured child was exposed.
    4. Same — Discovered Negligence.

      Held, also, that whether the motorman should have been able to see the plaintiff was in a perilous position in time to have checked the car and avoided the accident raised an issue of fact which should have been submitted to the jury.
    Brooke, C. J., and Ostrander and Steere, JJ., dissenting.
    ON REHEARING.
    5. Same — Subsequent Negligence — Pleading — Appeal and Error. _
    Though subsequent or discovered negligence ought to be averred.in plaintiff’s pleadings, if the objection was not presented, to the lower court, it will not be considered fatal on error, and an amendment being permissible upon a new trial, the. direction of a verdict in defendant’s favor will not be affirmed for such reason.
    Error to Wayne; Tucker, J., presiding.
    Submitted November 17, 1914.
    (Docket No. 87.)
    Decided June 7, 1915.
    Rehearing denied July 23, 1915.

      Case by Andrew J. Weitzel, as administrator of the estate of Stanley G*. Weitzel, deceased, against the Detroit United Railway for the unlawful killing of decedent. Judgment for defendant upon a directed verdict. Plaintiff brings error.
    Reversed.

      McHugh, Gallagher, O’Neil & McGann, for appellant.

      Corliss, Leete & Moody (Frederic T. Harward, of counsel), for appellee.

       As to what acts of child in attempting to cross street car tracks are negligent as matter of law, see note in 11 L. R. A. (N. S.) 166.

   Kuhn, J.

The plaintiff is the father and administrator of the estate of Stanley G. Weitzel, whose death was caused by injuries received when he was struck by one of the defendant’s- cars on June 13, 1912. The accident occurred on Gratiot avenue, in the city of Detroit, at the intersection of Belvidere avenue. Gratiot avenue runs in a northeasterly, and , southwesterly direction, but is spoken of in the record and briefs and in this opinion as running in a general easterly and westerly direction. ' It is intersected by Belvidere avenue on the north side 20 or 30 feet east of the intersection of the same avenue on the south side, and the street next easterly from Belvidere, crossing Gratiot avenue, is McClellan avenue. The deceased, who was 9 years and 3 months of age, lived on Belvidere avenue, north of Gratiot, and attended school on Belvidere avenue south of Gratiot. He had been warned and instructed by his father how to proceed safely across the street, and taught to stand and look both ways before proceeding to cross. This had been done two weeks before the accident.

On the day of the accident he walked homeward from school about noon with two schoolmates, Josephine Abel, 10 years old, and Olive McCabe, 12 years old. The girls left him before they reached Gratiot, and crossed a vacant lot to a bakery on the south side of Gratiot, about 90 feet west of the intersection of Belvidere. When deceased reached home, his mother sent him to the same bakery on an errand, and on his way he stopped at a grocery on the north side of Gratiot, looking directly into Belvidere on the south. By this time the two girls had completed their errand in the bakery and were waiting outside the shop for Josephine’s sister. . They saw deceased, with another boy, standing on the curb in front of the grocery across the street. A west-bound car passed on Gratiot avenue, and the deceased started to cross. The car was followed by two stripped automobiles on a testing run, but deceased reached the devil’s strip before they passed. He was struck, however, by a car going in the opposite direction, and the injury resulted in his death an hour later.

The testimony mainly relied upon by the plaintiff in support of his claim is that of the two little girls, Josephine Abel and Olive McCabe. The latter testified that she saw deceased on the north curb after the west-bound car had passed. Then she noticed the car coming from the west, and before it reached the bakery she observed that there was no motorman in sight, and remarked to Josephine, “Here comes a car without a motorman.” Josephine replied, “Oh, yes, there he is; I can see his cap.” ■ Then Olive saw the automobiles coming down the north track from the east, and saw deceased. standing on the devil’s strip. The car was now opposite the bakery, 90 feet distant from the grocery. The car and the automobiles closed in together and seemed to put deceased in a pocket. The car passed, leaving deceased lying between the tracks, and came to a stop beyond Belvidere. Josephine Abel testified to having seen nothing of the motorman but his cap, and to not having heard a gong. She said the automobiles were not. exactly in the groove of the north track, but were running a little to the north of the track, presumably with two wheels outside the most northerly rail. She further stated:

“By this time the car had come a little past the greenhouse. It was right by the greenhouse when I first saw it. The next thing I noticed Stanley was out between the car and the ■ testers. The testers were a little below Stanley. The car was west of Stanley, and the testers were east of him. He was in between the two. I hollered, 'Oh, Mister, Mister, stop!’ I hollered that, because I thought something was going to happen. The car did not stop. From the time that I noticed the car without any motorman, except the motorman’s cap, the car did not sound any gong at all. It went about to McClellan before stopping. While the car was passing where I had seen Stanley, I heard a bang. After I heard the bang, I saw Stanley lying on the ground. Some one picked him up. He was taken to the drug store. I did not stay there very long, as Miss Teagan, one of our teachers, came along and sent us home. I could not say just where the east-bound car was when I saw Stanley between the tracks.”

The court refused to grant defendant’s motion for a directed verdict at the close of the plaintiff’s proofs, and the defendant thereupon offered testimony of passengers on the car that plaintiff’s decedent ran into the side of the car with his head turned away and that they heard the bump of the collision. The learned trial judge directed a verdict for the defendant at the close of all the proofs, for the reason that under the facts of this case it must be held that plaintiff’s decedent was guilty of contributory negligence, and further held that the defendant could not be held to be guilty of gross or discovered negligence. A verdict having been directed against the plaintiff, the testimony must be considered in the light most favorable to plaintiff’s claim.

We think it may be conceded (and plaintiff’s counsel made no claim to the contrary at the argument) that the deceased, because of the instruction he had received, his experience in crossing the street car tracks, and being a bright and intelligent boy of his years, was capable of being held guilty of contributory negligence. See Holian v. Railway Co., 194 Mass. 74 (80 N. E. 1, 11 L. R. A. [N. S.] 166), and note. However, can it be said that plaintiffs decedent was guilty of contributory negligence under the facts shown in the instant case most favorable to plaintiff’s claim? He was standing on the curbstone on the north side of Gratiot avenue until the west-bound car had passed, and then started to walk across; the east-bound car being then a block away. He reached the devil’s strip when the car was at Metloff’s 90 feet west of him, and was facing the street car, with the automobiles at the same time approaching him on the northerly track from the other direction at about the same distance as the car was from him, and he thus found himself in a pocket. Standing in this narrow strip, with the car and automobiles rapidly approaching him from opposite directions, it must be said that he was in a position of imminent peril. There were three courses of conduct open to him — to stay where he was, cross in front of the oncoming car, or retreat in front of the oncoming automobiles. Any one of them was dangerous to him, and it was necessary to form his judgment quickly.

It may be said that he chose the wrong course, but we are of the opinion that it cannot be said as a matter of law that an error of judgment under such circumstances is negligence. As was said by this court in Fehnrich v. Railroad Co., 87 Mich. 606, at page 612 (49 N. W. 890, at page 891) :

“One put suddenly in peril is not required imperatively to do that which, after the peril is ended, it is seen he might have done and escaped. The law makes allowance for the fright and lack of coolness of judgment incident to such peril. It would be absurd to require of this boy, when he saw and heard the car upon him, and was suddenly called upon to decide how he should escape it, to exercise the same coolness and forethought that an uninterested bystander might manifest.”

See, also, Mercer v. Railroad Co., 151 Mich. 566 (115 N. W. 733).

If defendant’s witnesses are to be believed, the deceased was clearly guilty of contributory negligence; but the question is one which should have been submitted to the jury.

We are also of the opinion that the question of the defendant’s gross or subsequent negligence should have been submitted to the jury. The motorman testified that the car was going 8 or 10 miles an hour, and that he could bring his car to a stop within 45 or 50 feet. While it may be said that a person merely standing in the devil’s strip is not in such a position of peril as to oblige the motorman of a car to bring it under control, nevertheless the position of plaintiffs decedent in the devil’s strip, the automobiles coming toward him from one direction, and the car coming from the other, taken together, did create a perilous situation, and if the motorman had seen him and the situation he was. in, as he should have if a proper lookout had been kept, it was his duty to immediately get his car under control, and, if possible, avoid the accident which resulted. His failure to do so under these circumstances would warrant the jury in finding the defendant guilty of subsequent negligence, even if it should be found that the plaintiffs decedent was guilty of contributory negligence. Battishill v. Humphreys, 64 Mich. 514 (38 N. W. 581); Cooper v. Railway Co., 66 Mich. 261 (33 N. W. 306, 11 Am. St. Rep. 482); Schindler v. Railway Co., 87 Mich. 400, 405 (49 N. W. 670.); Richter v. Harper, 95 Mich. 221, 225 (54 N. W. 768); Montgomery v. Railway Co., 103 Mich. 46, 52 (61 N. W. 543, 29 L. R. A. 287); Daniels v. Traction Co., 143 Mich. 493, 505 (107 N. W. 94); Bladecka v. Traction Co., 155 Mich. 258 (118 N. W. 963); Clark v. Traction Co., 167 Mich. 694, 697 (138 N. W. 927); Fike v. Railroad Co., 174 Mich. 167, 205 (140 N. W. 592); King v. Railway Co., 176 Mich. 645 (143 N. W. 36).

The judgment is reversed, and a new trial granted.

McAlvay, Stone, Bird, and Moore, JJ., concurred with Kuhn, J.

Brooke, C. J.

(dissenting). I find myself unable to agree with the conclusions reached by my Brother Kuhn in this case. Plaintiff’s decedent was at the time of the accident 9 years and 3 months old. He was a boy of unusual intelligence, and had been in the habit of crossing Gratiot avenue at or near the point where he was injured for some time, and had been specially instructed by his father as to a safe method of crossing. He should be held guilty of contributory negligence as a matter of law, under the following decisions:

Ecliff v. Railway Co., 64 Mich. 196 (31 N. W. 180); in which case the boy killed was 12 years of age.

Trudell v. Railway Co., 126 Mich. 73 (85 N. W. 250, 53 L. R. A. 271), in which case the boy was 7 years and 4 months old. We there said:

_ “We think the court was in error in submitting either the proposition of defendant’s negligence or the negligence of the boy to the jury. The verdict, under the circumstances, should have been directed in favor of the defendant. The testimony conclusively shows that this boy, while only a little over 7 years of age, knew and appreciated the danger there was in being on this track.”

Perego v. Railway Co., 158 Mich. 225 (122 N. W. 535). In this case the boy was 81/2 years old. . Recovery was denied upon the ground that the contributory negligence of the boy was established as a matter of law.

Knickerbocker v. Railway Co., 167 Mich. 596 (133 N. W. 504). In this case the boy who lost his life was 10 years- of age, and in denying recovery this court said:

“His intelligence and his ability to appreciate the danger which actually threatened, and to avoid it if seasonably discovered, cannot be questioned. He did not discover the actual danger.”

Mollica v. Railway Co., 170 Mich. 96 (135 N. W. 927). In this case the child was 9 years and 6 months old. After describing the situation and circumstances surrounding the accident, the court there said:

“A glance in that direction, occupying but an instant, as he approached the danger zone where he stopped, would have informed him and saved his life; if seasonably discovered, he would have apprehended and avoided this danger as intelligently and quickly as any adult.' He was old enough to know, and in the very nature of things did know, that where he stood was a dangerous place.”

See, also, Gradyszewski v. Railway, 173 Mich. 13 (138 N. W. 225).

My Brother Kuhn, • without mentioning the foregoing cases, suggests that the contributory negligence of plaintiff’s decedent should be held to be a question of fact for the determination of the jury, because just prior to the moment of injury the boy found himself in a position of peril and should not be held to so strict an obligation to care for his own safety as would otherwise be imposed .upon -him. This conclusion presupposes the fact that when he neared the track upon which the east-bound car was proceeding he was in a position of peril by -reason of the automobiles approaching from -the east. - While one of the two little -girls, witnesses for the plaintiff, described him at that- moment as being in a pocket, an examination of their testimony discloses the fact that the automobiles were not directly -upon the west-bound track,‘ but were 'straddling the northerly rail thereof. It is, I think, entirely obvious that a position upon the “devil’s strip”- itself is- not one of imminent peril, when, as in the case at bar, no street car is approaching from the other, direction.. , Indeed,; a-.fullgrown man may stand in safety, by the' exercis'e of care, bétween two cars as they pass "each other.: That is not the case here, however'. '' There was 'an ample space between the approaching car,1 with-which the plaintiff’s decedent came in contact, and the oncoming automobiles, which, as before stated, were not' running directly, upon, the West-bound track. ;

The case of Fehnrich v. Railroad Co., 87 Mich. 606 (49 N. W. 890), cited by.my,Brother Kuhn, is, in my- opinion, entirely inapplicable. In the case at bar, if plaintiff’s decedent found himself in a perilous situation, he -was thére solely as ‘the 'result of his own negligence.. -No, .negligent act on thé part, of the defendant had helped to create fixe situation. • In the Fehnrich Case, I find that the plaintiff was injured upon a highway by an engine which was backed down upon him without either sounding a warning bell or whistle.^ The .Fehnrich Case ,is predicated upon the decisión of Strand v. Railway Co., 64 Mich. 216 (31 N. W. 184), wheré^ttíé plaintiff'was injured in stepping óff á railway train which had been started without allowing the passengers sufficient time to ¿light. Neither case has any application to the facts here under consideration.

With reference'tó tíie. question of discovered negligence, or the doctrine of last chance, it would, 'perhaps, be sufficient' to say that the declaration is not framed upon, that theory. If it had been, I aim of opinion that . there is no room for the ¿pplication' of the doctrine in this case. Had the accident happefied ex¿ctly as detailed by the'plaintiff’s'witnesses, and the overwhelming, weight of the evidence shows that it did not so occur, and had the defendant’s motorman seen' the boy standing upon the “devil’s strip,” I am of opinion that the circuit' judge was entirely correct in holding that this fact would impose upon, him no duty to slacken the speed of his car. He would have a right to assume that plaintiff’s decedent would maintain, if -unable to" cross 'in front of the oncoming car, a position of safety where he stood, or, if he deemed that too perilous, to stejp back a foot' or two farther to the north. ' The motorman knew, as the boy must have known, that the automobiles' could and would swerve to the north and leave ample room for the boy to'stand'in the position he had assumed.

' Under the circumstances' disclosed by this case, I am satisfied that a correct solution was reached by the learned trial judge, and that the verdict was properly directed.

The judgment should be affirmed.

. Ostrander and Steere, JJ., concurred with Brooke, C. J.

ON REHEARING.

Per Curiam.

In the opinion of Chief Justice Brooke, it was said with reference to the question of discovered negligence that the declaration was not framed upon that theory. The question of the sufficiency of the declaration apparently was not raised in the court below, and the question of subsequent or discovered negligence, as applicable to this case, is discussed in briefs of counsel. "That the learned circuit judge considered the question as before him is very apparent from his charge to the jury, in which he said:

“There is another phase of law which has been suggested by the plaintiff in the case, what we call 'subsequent negligence,’ that is, that duty that devolved upon a motorman in charge of a car, where he has reasonable ground to believe that, a party observed in front of his car at a distance far enough so he could have stopped his car, was in a dangerous situation, and notwithstanding the apparent unconcern or negligent attitude of the person.”

Counsel for the defendant and appellee, in the motion for rehearing, insist that gross negligence must be pleaded, and rely upon the case of Denman v. Johnston, 85 Mich. 387 (48 N. W. 565). We think this is true, and it would have been a proper question if it had been urged in the court below, where opportunity might have been given to amend the declaration. As the case is being sent- back for a new trial, in the event the case should be again tried upon that theory and the question raised, an amendment to the declaration might be then allowed. .

The other questions discussed in the motion for a rehearing were fully considered by the court in the previous opinions.


author: Stone, J. Bird, J.

text:
    LAHTI v. TAMARACK MINING CO.
    1. Master and Servant — Mines and Mining^-Feixow-Servants —Lighting.
    Negligence of defendant’s employee, in charge of a tram car operated along a crosscut that the miners traversed in going to and from work, in neglecting or omitting to place a light at the head of the car, as required by the employer, for the safety of employees, for the alleged reason that his headlight became broken or out of order at the beginning of the trip, was an act. of a..fellow-servant of another employee engaged as a miner, for which no right of action arose in favor of the injured servant.
    2. Same — Safe Place.
    Where the master has provided a safe place to work and suitable tools, add appliances with which to perform the same, the negligent use of such instrumentalities by a fellow-employee is not chargeable to the master as the negligence of an alter ego.

    3. Same.
    Nor was defendant liable on the theory that it had not provided a reasonably sufficient lighting system so as to make the operation of its mine safe, where the conductor had been duly furnished with. lamps and instructed to place a lighted lamp upon the front of every moving train.
    Kuhn, Bird, and Moore, JJ., dissenting.
    Error to Houghton; Cooper, J., presiding.
    Submitted November 13, 1914.
    (Docket No. 48.)
    Decided June 7, 1915.
    Case by John Lahti against the Tamarack Mining Company for personal injuries. Judgment for plaintiff. Defendant brings error.
    Reversed; new trial denied.

      Allen F. Rees (D. L. Robinson and A. E. Petermann, of counsel), for appellant.

      Le Gendre & Driscoll, for appellee.
   Stone, J.

Action for damages by reason of the injury of the plaintiff in a mine of defendant on the morning of March 19, 1910, on the fifteenth level of No. 3 North Tamarack shaft. This was a perpendicular shaft. In order to reach the vein from the shaft a crosscut was driven in barren ground west from the shaft until the vein was reached. At the time of the accident the crosscut from the shaft to the vein was somewhere between 700 and 1,000 feet long. At the point where the crosscut started from the shaft there was a room or opening, which was called the plat. At' this point the crosscut was wider, and it was about 50 feet or more from the shaft before the crosscut narrowéd down to its' average size. The crosscut was about five feet high on the average, and about the same in width. It is straight, so that one could see a light through it from one end to the other. When the crosscut reached the vein there was a drift along the vein.south of about 1,000 feet long. The copper rock was mined and brought down to the drift, and along the floor of the drift, and continuing into the crosscut and to the shaft, was a track built similar to a railroad track, save, that the rails were a great deal smaller in size. On this track cars called tram cars were run to carry the rock- from the drifts to the shaft. These, cars were 4 feet high from the track and 8 feet 8 inches wide. The motive power to pull the cars was furnished by means of an endless cable which ran through the drift and crosscut, and which was run by means of a compressed air engine and a drum located 'at the junction of the drift and the crosscut. The cable coming from the crosscut into the drift went in a straight line on the drum of the engine. There were four or five rounds of cable around the drum, so as to give the cable a grip on the engine. The cable then left the drum and was carried along the floor of the drift to the end of the drift and onto a wheel at that point, and returned on rollers situated between the rails of the track on the floor of the drift and through the crosscut to the plat at the shaft, where it went onto another wheel and back on the rollers, on top of the crosscut. The rails of. the track were about three feet apart, and the rollers on the floor were about halfway between the rails. These rollers were about five or six inches in diameter. The shaft on which the rollers were fastened turned with the rollers, and the cable would be 2% inches from the floor of .the drift when it was running on the rollers on the floor. The tops of the rollers in the roof of the crosscut were aboutsix inches from the roof. The rollers on the floor of the crosscut were about 20 feet apart, and those on the roof about the same distance. ••

The cars were iron cars. They were filled in the drift, attached to the cable, drawn to the p'lat at the shaft, where they were taken off.the cable, and run onto the cages which elevated them to the surface. They were fastened to the cable in the following manner: There was a ring on the . cable with a short piece of chain leading from it. . This chain was fastened to the front end of the front car, whichever way the cars were going, by means -of an iron bolt. The cars were then fastened together. There was a slight grade in the crosscut toward the shaft. The cars, being fastened to the endless cable, had no brakes upon them. The moment the cable stopped' the cars stopped. If the cars were being run through the drift or crosscut at their ordinary rate, they would be stopped instantly -when the power was shut off at the engine, or would stop within a few inches. These cars were ordinarily run at a speed somewhat faster-than a man walks. When there was more than one party of trammers they used four cars; if there was only one they used two cars in a train.

The man or boy who operated the engine was stationed at the junction of the crosscut and drift, where he could see in both directions. He is referred to in the record as the “puffer boy,” and the engine used is ordinarily called a puffer engine. When a train of cars was running through the drift, generally a man was with the cars. That man was called a conductor.He rode back and forth on the cars through the drifts and crosscuts. He was on the fear while going to the shaft. There was a signaling apparatus running through the drift and crosscut to notify the puffer boy when to start and stop his engine. This signal wire ran to the engine and was located in the roof of the crosscut, more on the right side going in from the shaft. This signal cord^ was within easy reach of persons in the crosscut, and was like the bell signal in a train or street car. All that was necessary was to reach the bell rope and pull it down. The signal to stop was one bell. The conductor could reach out from his position on the train and pull the cord at any time going through the crosscut. It was customary for the men to go into the crosscut on their way to and from work. In fact this was the only way to reach their work in the drift, or drifts.

The crosscut was not lighted except by the miner’s lamps, which they carried in their hats in going through the crosscut. When the cars were being run through the crosscut, it was customary to have a light placed on the front end of the front car. This light was placed on the car by the man called the conductor when he had his train made up and was ready to take it out, and he was the only man whose duty it was to place the light there. The light or lamp that was used for this purpose was an ordinary miner’s lamp that burns “Sunshine” grease — the same kind of lamp that the men wear on their hats. There was a little hole on the end of the car and a hook on the lamp, and he placed the hook in the hole. In addition to the light that the conductor placed on the front of the first car, he also carried a lamp of his own on his hat.

Before entering the crosscut from the shaft the men could ascertain whether or not the cars were running by looking at the wheel at the plat around which the cable went. They could tell whether the cars were running, and in which direction they were running, by feeling the rope back of the timbers and where the wheel was, and by watching the light. The custom was to put their foot on the rope passing the post where the wheel was.

The plaintiff was employed by the defendant as a miner, and on the day of the accident his working place was the fifteenth level of No. 3 shaft, where he was to work in a stope. In company with two other men, at about 8 o’clock in the morning, he went down in the cage and got off at the fifteenth level at the plat. Quoting plaintiff’s own words, he testified:

"When I got to the mouth of the crosscut first I looked for the lights on the cars; and then Arfman, who was ahead of me, he felt the rope with his hand, and I felt with my foot. The rope was not moving then. I had two bars on my shoulders, one was 6 or 7 feet long, the other 10 feet or thereabouts, and their weight was about 30 or 40 pounds. After I felt the rope and found it not moving we started to walk in. Arfman was ahead. He might have been 10 feet or more ahead of me. I think it was somewhere around 300 feet from the shaft in the crosscut where I was injured.”

As the plaintiff and Arfman were walking through the crosscut they were met and run down by a loaded train of cars, and the plaintiff was injured. On that morning the conductor had taken a train of cars in from the plat to the drift, and had taken them to a place between 900 and 1,000 feet south of the crosscut. At that point he got the loaded cars and attached them to the cable. At this point the lamp, which he ordinarily placed on the front of the head car, got broken, and on this trip, which was the first one for the day, he ran the cars out from the drift and into the crosscut without putting a light at the front of the car. The train had run a distance of 1,800 or 1,900 feet from the place where the lamp was broken to the place where the plaintiff was injured. The following uncontradicted testimony was given by the conductor, who was called by the plaintiff for cross-examination under the statute: ,

“Q. You are the conductor that was'on the train which caused the-injury to Lahti?
“A. Yes..
“Q. You are the one -whom the company appointed to look after the headlights on the train for the safety of the men?
“Á. Yes.
“Q. You are the only one upon whom'that duty was imposed?
‘A. Yes.
“Q. You were supposed to keep a headlight on the train at all times for the men’s’safety?
“A. Yes. * * *
“Q. Now, at the time the plaintiff was hurt, you were on the train, were you not?
“A. Yes.
“Q. And there whs no headlight on the train?
“A. No.
“Q. There hadn’t been any headlight on the train from the time yoü left the south end of the drift, about 1,000 feet from the place where the plaintiff was hurt?
“A. No.
“Q. And you knew that all the time, didn’t you?
“A. Yes.
“Q. And didn’t you put any headlight on there?
“A. No.
“Q. You ran the train without a'headlight?
“A. Yes.
“Q. Now, the only thing that that headlight was on the train for was for the men’s protection, to warn them that the train was coming, wasn’t it?
“A. Yes.
“Q. And it was the custom of the company to at all times keep a headlight upon the trains for the safety of the men?
‘A. Yes.
“Q. And they imposed that duty upon you for the safety of the men, the company did?
“A. Yes.
“Q. Now, why didn’t you put a headlight upon the train that morning while running the train in from the south end of that drift?
“A. Because she was broke inside.
“Q. The headlight was broken inside?
“A. Yes.
“Q. And by inside, you mean at the south end of the drift, do you?
“A. Yes.
“Q. And weren’t you furnished with any extra headlights to use in case one got out of order?
“A. No.
“Q. You are the one whose duty it was there, under the customs and rules of the company, to keep the headlights in repair ahd lighted?
“A. Yes.
“Q. And you didn’t have any extra one to replace the broken one at that time?
“A. No.
“Q. The defendant didn’t furnish you any?
“A. No. * * *
“Q. While yon were riding in on the cars on that train you were on the hind car, weren’t you?
“A. Yes.
“Q. Dn the back end of it?
“A. Yes.
“Q. How many cars were in the train?
“A. Two. ■ •
“Q. And there was no light of any kind on the front car?
“A. No.
“Q. And you hung onto the back car, stooping down low, didn’t you?
“A. All that was above the car was my head.
“Q. And the cars were loaded with rock, were they not?
“A. Yes, with rock.
“Q. And the rock was heaped up over the top of the car?
“A. Yes.
“Q. And you had to keep your head down from the top so as not to strike the rollers on top ?
“A. I did when I came close to a roller, I just ducked. * • * *
“Q. You didn’t do anything else but just run that train and take care of those lights?
“A. That is all'-1 did do. . ■
“Q. Did you see the lights of the plaintiff or Arfman as. you came through the crosscut?
“A. No.
“Q. Did you know they, were in the crosscut before you heard them holler? ....
“A. No.
“Q. I assumed that you heard them holler; did you hear them holler?
“Al I did when the cars came right by them.
“Q. -How long would it take to stop that train, after you gave a signal to stop it? . -
“A. I think about 30 feet?
“Q. How fast was the train . going as you went through the crosscut there that morning?
“A. Like a man on a fast walk. Like a man would walk fast.”

The undisputed evidence shows that the plaintiff, stepping to the south side of the crosscut, sought to protect himself from the on-coming train of cars, but was hit by the cars, and suffered serious injuries, which were the foundation of this action.

At the close of the plaintiff’s case, and again at the close of all the evidence, the defendant moved the court for a directed verdict upon the grounds:

(1) That the evidence showed no negligence on the part of defendant, Which was attributable to the defendant.
(2) That the negligence, if any, in the case was the negligence of a fellow-servánt of the plaintiff, namely, the conductor on the car.
(3) That the evidence showed beyond any dispute that, as a matter of law, the plaintiff was guilty of contributory negligence.
(4) That the conditions, as shown by the testimony, established conclusively, as matter of law, that the plaintiff assumed the risk.
(5) That if there was any negligence in this case in not putting a light on the car, the testimony showed that the lamp was broken so recently before the accident that notice of that fact could not be brought home to the defendant, and until such time, or such lapse of time, was shown to have existed, the defendant would not be responsible for the failure to place the light on the car.

Said motions were overruled, and defendant excepted. There was a verdict and judgment for the plaintiff in the sum of $3,000, and defendant has brought the case here upon writ of error; and, while there are many assignments of error, it relies, mainly, for reversal, upon the claim, under appropriate assignments of error, that the court should have directed a verdict for the defendant, because the negligence, if any, which the plaintiff alleges was the cause of his injury, was the negligence of a fellow-servant.

Although the declaration in the case alleges numerous acts of negligence on the part of the defendant, it appears from the record that the act of negligence upon which the plaintiff relied at the trial was the failure of the defendant to keep the crosscut, through which plaintiff was passing, reasonably safe, in that on this occasion a train of cars was run through the crosscut without a light on the front car. Aside from that one circumstance, we find no evidence or claim in the record that the place was unsafe.

Under the custom and the rule of the defendant, it was the duty of the conductor to run the cars through the drift and crosscut with a miner’s lamp stuck on the front end of the front car. On this occasion he ran the train through without a lamp. Reduced to its simplest terms, therefore, the primary question is whether the conductor was, or was not, the fellow-servant of the plaintiff in handling his train as he did on this occasion. Defendant maintains that, under established principles, he was such a fellow-servant. The learned trial court, basing its opinion apparently upon the case of McDonald v. Railway Co., 108 Mich. 7 (65 N. W. 597), submitted the question to the jury. It is contended by the defendant that the McDonald .Case does not warrant the ruling of the trial court, and it is urged that in that case the defect, viz., that of a cracked push bar, was a defect in a permanent part of defendant’s locomotive, while in the case at bar there was no defective machinery whatever, but the negligence consisted solely in the failure of the conductor, in properly making up and equipping his train before taking it through the crosscut. In other words, it is a case of the disobedience of the conductor in not complying with his instructions and the rules, of the company. It is urged on behalf of defendant, as distinguishing the instant case from the McDonald Case, that the trains which were run. through the crosscut were not made up in any particular or special manner; that there were a great many tram cars in use, all being alike; that the lamp was an ordinary miner’s lamp such as the men wore in their hats, and was not fastened permanently to any car, but was temporarily stuck in whichever car happened to be in front of the train; that the cars that were taken to the plat filled with rock were not taken right back, but the conductor took in whatever empty cars that were there; that similarly when he arrived inside at the drift he left his empty cars there, and took out such as were filled; that consequently he had to change the position of this lamp a great many times a day, and on each trip, whether in or out, had to place his lamp on a different car; that there were a great many similar lamps in the drift at the time he left it, and each man had one, and there were many men there, and that the conductor had another lamp like it on the way out on the cars, but he carried it on his hat; that the headlight or lamp on the front end of this train of cars was therefore not an appliance of a permanent nature, fastened to the car, which could be kept in condition by the inspection which the master ordinarily owes, in order to keep appliances in a reasonably safe condition, and that the placing of the lamp on the front car before taking the train through the crosscut was one of the duties incident to the making up of the train, and was a mere, detail of its operation; that to require an independent inspector to see that this servant did his duty of attaching the cars to the cable, putting the, lamp on the front car, and giving the proper signals, would be carrying the rule far beyond the limits contemplated by the decisions, and that it is well-established that an employer who furnishes a safe place, -proper machinery and appliances, and competent men to perform the work is not required to personally superintend all the details of the work, and cannot be held liable for every negligent act of his employee in the use of such machinery and appliances. •

It is also urged by the defendant that the instant case cannot be distinguished from numerous cases decided by this and other courts of last resort, holding, under facts similar to those in this case, that the injured party and the man in charge of the machinery, or appliances, were fellow-servants. We have read 'with great care, the opinions in the McDonald Case. Even the opinion of Justice Montgomery deals with the matter of inspection and the discovery of defects in machinery. It is well that we should note that in that case there was also an additional -cause of thq injury in the failure of a brake and reverse gear to work, which caused an extra strain to be put upon the defective push bar; and the opinion of Justice Hooker approves the holdings of this court.in Smith v. Potter, 46 Mich. 258 (9 N. W. 273, 41 Am. Rep. 161), where the failure of the yard inspector to detect a defect in a car received from another road was held to be the negligence of a fellow-servant, and of Dewey v. Railway Co., 97 Mich. 329, 333 (52 N. W. 942, 56 N. W. 756, 16 L. R. A. 342, 22 L. R. A. 292, 37 Am. St. Rep. 348), where a similar ruling was made, and also Miller v. Railway Co., 90 Mich. 230 (51 N. W. 370), and Jarman v. Railway, 98 Mich. 135 (57 N. W. 32), both of which latter cases were in line with the first-mentioned cases, and Justice Hooker there said:

“It was the duty of the defendant to furnish machinery in a reasonably sound and safe condition, and to use ordinary care in keeping the same in repair. This is an absolute duty, which the master cannot relieve himself from by imposing it upon another. There is no claim that defendant did not furnish a reasonably safe push bar. If there is liability, it must be based upon a failure to use proper care in discovering and remedying the defect. If there was negligence in this, it was either a failure to prudently inspect, or by reason of the use of the defective push bar after inspection. The record shows that there was no provision for inspection other than inspection by the engineer operating the train. He was expected to inspect his engine at all practicable times, and to report defects. This was no more than common prudence dictates should be required of all operatives of railway trains, and it is to be considered as a part of their duties in and about the operation of their trains; and this is as true when the railroad company makes no other provision for inspection as when it has another regular inspector. Such inspection, in the ordinary operation of the road, is the act of a fellow-servant, as between the engineer and brakeman, and, as between them, does not constitute the engineer a representative of the master. To say that an engineer who should err in attempting to make the next station, after his engine became broken, acted as the representative of his master, thus holding the latter liable to the fireman, who was injured, would be carrying the rule too far. An unreported injury of the brakes known to the brakeman would be another illustration. The duty that the master owes to his patrons requires vigilance and care upon the part of the crew, and the master should be permitted to require it without subjecting himself to all the consequences following negligence by an inspector proper. The duty of such inspection should not be imposed upon operators of trains or machinery at the master’s peril. If he provides for the discovery of defects and repair of his machines with reasonable diligence, it should be enough; and he should be allowed to provide additional precautions and safeguards, through the vigilance of operatives. To hold otherwise would put a premium upon carelessness.”

Then follows the reference to the cases cited above.

Attention is also called to the later language of Justice Hooker, in the opinion, calling attention to the proper submittal to the jury of the question of concurrent negligence of the engineer and that of the defendant. It seems to us that there was no failure of inspection in the instant case; that the duty of placing a miner’s lamp on the front car of the train, before making a trip through the crosscut, was one which; by its very nature, had to be performed a great many times during the day, and one which required from the servant no skill, but merely obedience to the orders of the employer. His failure to so place the lamp was purely a failure to perform a detail of his work in preparing the cars, and, as such, was the act, it seems to us, of a fellow-servant of the plaintiff, for whose negligence the defendant should not be held liable. It is hard to conceive how this case can be distinguished from the case where the engineer, or servant, fails to light the headlight on a locomotive before starting on a trip, or a brakeman who fails to give a proper signal of warning, or a yardman who sends out a car improperly loaded, all of whom have been repeatedly held to be acting in a purely ministerial manner, and not in a representative capacity. There is no evidence in the case that the lamp was liable to be broken that day, or ever had broken before, or that it was necessary, in the operation of the trains, to provide at the plat in the crosscut, or in the drift, duplicate parts for the very simple machinery operated by the conductor. In fact there is no claim of negligence on the part of the defendant in failing to keep duplicate parts, alleged in the declaration, nor was any such, claim set up or relied upon at the trial. The evidence in the case shows affirmatively that the train had never been run before without the light in front, and therefore the defendant had no notice that such a thing was likely to occur. . Unless notice to the conductor was. notice to the defendant, the latter cannot be charged with notice of the breaking of the lamp before the accident occurred. The defendant had furnished a safe place, safe machinery and appliances, and a competent servant to operate them. It is difficult to say in what respect it failed in any duty toward the plaintiff. In the light of the following decisions of this court, we are constrained to hold that the learned trial judge should have directed a verdict for the defendant, upon the ground that the conductor whs the fellow-servant of the plaintiff. We think this view of the case is fully sustained by the following decisions of this court. We shall quote from two only: Smith v. Potter, supra; Greenwald v. Railway Co., 49 Mich. 197 (13 N. W. 513); Henry v. Railway Co., 49 Mich. 495 (13 N. W. 832); Peterson v. Railway Co., 67 Mich. 102 (34 N. W. 260, 11 Am. St. Rep. 564); Bergstrom v. Staples, 82 Mich. 654 (46 N. W. 1035); Miller v. Railway Co., supra; Baron v. Navigation Co., 91 Mich. 585 (52 N. W. 22); Dewey v. Railway Co., supra; Jarman v. Railway Co., supra; Schroeder v. Railroad Co., 103 Mich. 213 (61 N. W. 663, 29 L. R. A. 321, 50 Am. St. Rep. 354); Loranger v. Railroad Co., 104 Mich. 80-87 (62 N. W. 137); Henning v. Foundry Co., 112 Mich. 616 (71 N. W. 156); Frazee v. Stott, 120 Mich. 624 (79 N. W. 896); Miller v. Railroad Co., 123 Mich. 374 (82 N.. W. 58); Lellis v. Railroad Co., 124 Mich. 37 (82 N. W. 828, 70 L. R. A. 598); Jurkiewicz v. Car & Foundry Co., 147 Mich. 622 (111 N. W. 183); Dixon v. Railway Co., 147 Mich. 667 (111 N. W. 200), and 155 Mich. 169 (118 N. W. 946); Wickham v. Railway, 160 Mich. 277 (125 N. W. 22, 52 L. R. A. [N. S.] 1082, 136 Am. St. Rep. 436, Am. & Eng. Ann. Cas. 1913E, 1069); Stever v. Railroad Co., 160 Mich. 207 (125 N. W. 47, 52 L. R. A. [N. S.] 1139).

In Dixon v. Railway Co., supra, the plaintiff, a crossing tender in defendant’s employ, alleged that he was injured through the negligence of defendant in not keeping a certain switch east of the crossing, at which plaintiff was assigned, securely locked and fastened when not in use, and by reason of which a part of a train passing the crossing ran off the track and struck him. When the case was first here Justice Blair, speaking for the court, said:

“We think that the court erred in holding that the doctrine of safe place applied to this case. The duty of keeping switches closed and locked while not in use was not one of the absolute duties of the defendant, but an assignable duty, relating to a detail of operation which could properly be delegated to an employee” (citing cases).

When the case was here the second time, the following language was used by Justice Hooker :

“As we said in our former opinion, if the accident was due to negligence, it was that of a fellow-servant, for which the master is not liable.”

In Miller v. Railroad Co., 123 Mich. 374 (82 N. W. 58), the plaintiff was the foreman of a section gang, and was struck and injured by a piece of timber projecting from a flat car. The conductor and the brakeman of the train crew placed the timbers on the flat car, but failed to comply with the rules prescribed .by the defendant, with which they were familiar, for the proper loading of cars, in that they did not use a sufficient number of stakes to secure the timbers properly upon the car. In an opinion reversing a judgment for the plaintiff this court, speaking through Justice Moore, said:

“The trial judge was in doubt as to whether he ought to have charged the jury that the conductor and the station agent who were responsible for the loading of the timber, were fellow-servants with the plaintiff or not. He expressed himself as of the opinion that the cases decided in this court were not harmonious, and that under the later cases he ought to allow the case to go to the jury. He doubtless referred to the cases of Balhoff v. Railroad Co., 106 Mich. 606 [65 N. W. 592]; Anderson v. Railroad Co., 107 Mich. 591 [65 N. W. 585]; McDonald v. Railroad Co., 108 Mich. 7 [65 N. W. 597]. A reference to these cases will show that each of them announced the_ doctrine that it was the duty of the master to provide a reasonably safe place to work, and machinery, tools, or appliances in a reasonably safe condition with which to work, and that this was a duty which could not be delegated by the master so as to escape liability. If the master has provided a safe place to work, or tools, machinery, and appliances reasonably safe with which to work, these cases do not indicate that the negligent use of these things by a fellow-employee would make the master liable. These cases,, as applied to the testimony in the case at bar, restricted as it was by the court to the third count in the declaration, did not justify a submission of the case to the jury upon the theory that the station agent and conductor were not fellow-servants. In that respect the case is controlled by Dewey v. Railway Co., 97 Mich. 329 [62 N. W. 942, 56 N. W. 756, 16 L. R. A. 342, 22 L. R. A. 292, 37 Am. St. Rep. 348]; Jarman v. Railway Co., 98 Mich. 135 [57 N. W. 32]; Loranger v. Railway Co., 104 Mich. 80 [62 N. W. 137]; and Frazee v. Stott, 120 Mich. 624 [79 N. W. 896]. The last-named cases all relate to the negligent use by fellow-servants of cars, machinery, or appliances which were reasonably safe for the purposes for which they were intended. Under such circumstances it is held that the negligence of the fellow-servant does not make the master liable. If the distinction we have pointed out is borne in mind, we think it will be found the decisions are not inharmonious.”

We have not omitted to examine the cases cited by plaintiff’s counsel. In our opinion Murphy v. Dredge & Dock Co., 175 Mich. 216 (141 N. W. 564), can readily be distinguished from the instant case. In that case the defendant had not provided such a reasonably sufficient lighting system as to render the operations safe for its employees. Manifestly that is not this case. Here the conductor had been instructed, and it is undisputed, that it was his duty to put a lighted lamp upon the front of every train. He violated his instructions and moved his train without a light.

The case of Kaukola v. Mining Co., 159 Mich. 689 (124 N. W. 591), is also cited. There we applied the rule of safe place, and held that it was the duty of the company to provide a safe passageway for its employees to prevent their falling into a trap or excavation while going to their work. Here no complaint is made of the safety of the passageway, had the conductor followed his instructions and placed the simple appliance of a lamp in front of the train. We do not think that anything that was said by us in the Kaukola Case is controlling of the instant case.

We have examined the other cases cited by counsel and think they are readily distinguished. Counsel for both parties have cited many cases Outside this State. While we have examined some of them, we are of opinion that the subject under consideration has been covered by our own decisions, and deem it unnecessary to cite the numerous authorities from other jurisdictions. ,

We are of opinion that by the undisputed testimony and for the reasons stated, the trial court should have directed a verdict for the defendant. This disposition of the case renders it unnecessary to consider the other questions discussed by counsel.

For the reasons pointed out, the judgment of the circuit court is reversed, and no new trial granted.

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

Bird, J.

(dissenting). I am unable to agree with the conclusion reached by Mr. Justice Stone, that this case should be reversed. The place in which the plaintiff was injured was not one which was in the process, of making. It was a permanent place, provided with a railway and cars, and was also used as a passageway for the employees going to and from their work. When the defendant put the passageway to this joint use, it was bound to keep it reasonably safe for the passage of the employees, and to keep it reasonably safe for them it was necessary to light it. Of the many ways in which this might have been accomplished, the defendant chose to light it by a lamp carried on the front end of the train. If the burden was on the conductor to keep the light on the car, in this respect he was acting for the master, and as to such duty was not a fellow-servant of the plaintiff. It will not do to dispose of the question by saying that the passageway became unsafe by reason of negligent operation. If the place had been made safe in the first instance by the master, and had subsequently become unsafe by reason of operation, of course the master would not be liable, but the difficulty of applying this rule is the fact that the place was never safe for the joint use of the cars and employees unless it was lighted. The lighting was a necessity which preceded operation, and operation could not be carried on in a reasonably safe manner until it was accomplished. As was said in Kaukola v. Mining Co., 159 Mich. 689 (124 N. W. 591), where a like question was very ably discussed:

“The lighting of this passageway or thoroughfare of the mine, far distant from the working places of most of those who passed through them — it being always dark in the mine — was just as necessary for the safety of the men as it was to have the walls and floors in a proper condition. It was one of the ‘instrumentalities’ which it was necessary to provide to enable the men to do their work, and to get to and from their work safely. It was a thing which it was necessary to keep permanently in condition.”

I am unable to distinguish this case from Kaukola v. Mining Co., supra, and Murphy v. Dredge & Dock Co., 175 Mich. 216 (141 N. W. 564), recently decided by this court, and I think this case should follow them, and the judgment should be affirmed.

Kuhn and Moore, JJ., concurred with Bird, J. Ostrander, J., did not sit.


author: Kuhn, J.

text:
    HEATON v. HEATON.
    1. Divorce — Aumoht—Husband and Wife — Amount.
    In a suit for divorce which was granted to complainant wife, where the defendant was 68 years of age, possessed of about $2,400 worth of property which, he had accumulated before his marriage, an allowance of $100 to the wife, who had property worth about $1,000, in full satisfaction of her claims against the husband’s estate, was a reasonable allowance to be made as alimony, taking into consideration the earning power of the husband was practically at an end.

      2. Same — Weight of Evidence.
    Where, upon consideration of the evidence, it was determined on appeal that complainant’s charge of extreme cruelty was’ sustained, a divorce should be awarded from the bonds of matrimony with an allowance in lieu of dower, under Act No. 259, Pub. Acts 1909 (4 How. Stat. [2d Ed.] § 11496 et seq.).

    Appeal from Kalamazoo; Weimer, J.
    Submitted April 16, 1915.
    (Docket No. 135.)
    Decided June 7, 1915.
    Bill by Amy H. Heaton against Ryan Heaton for divorce. From a decree for defendant, complainant appeals.
    Reversed.

      Lincoln H. Titus, for complainant.
   Kuhn, J.

This is an appeal from a decree dismissing the complainant’s bill for a divorce. The proofs in support of the charge of extreme cruelty, which is the cause assigned in the bill, rest solely upon the testimony of the complainant herself, and the chancellor refused to grant the relief because in his opinion the case had not been clearly established in accordance with the rule announced by this court in Murphy v. Murphy, 150 Mich. 97 (113 N. W. 583).

Recognizing the rule that this court ought not to lightly reverse a decree made under such conditions where the chancellor, who has seen and heard the witness, had the advantage of determining her credibility, nevertheless we are not thereby relieved of the duty of exercising our own judgment in passing upon the evidence in this case. Rosecrance v. Rosecrance, 127 Mich. 322 (86 N. W. 800); Knickerbocker v. Knickerbocker, 135 Mich. 102 (97 N. W. 1117); White v. White, 135 Mich. 271 (97 N. W. 681); Emery v. Emery, 181 Mich. 146 (147 N. W. 452).

No good purpose would be served by attempting to review this testimony, which is disgusting in character, but after a careful examination of the testimony of the complainant we are of the opinion that a divorce should have been granted upon the proofs.

The complainant, who was 68 years of age, married the defendant, who was 65 years of age, on the 12th of July, 1913, as the result of correspondence brought about through an advertisement in the “cupid column” of a matrimonial paper. They lived together at the home of the complainant until some time in October, 1913. The defendant is possessed of property approximating in value about $2,400, and the complainant is possessed of property approximating $1,000. It also appears that during the time they lived together the defendant turned over his earnings to the complainant, and that none of the property he possesses came to him as a result of complainant’s efforts or assistance, she having contributed nothing to his property at the time of her marriage or after. In view of the fact that defendant’s earning powers are nearly at an end, we do not think that any considerable amount of his property ought to be taken from him as alimony. But as Act No. 259, Pub. Acts 1909 (4 How. Stat. [2d Ed.] § 11496 et seq.), makes it the duty of the court to include in its decree some provision in lieu of dower, which is to be in full satisfaction of all claims that the wife may have in any property which the husband. owns or may thereafter own, or in which he may have any interest, we think that it would be proper to allow complainant $100 as such a provision, with costs of both courts.

The decree will therefore be reversed, and a decree entered in this court in accordance with this opinion.

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