author: Per Curiam.

text:
    WAVLE v. MICHIGAN UNITED RAILWAYS CO.
    1. Appeal and Error — Bribes—Statement op Pacts.
    Appellant’s brief, on error, should contain a statement of the errors on which he relies, the questions involved, and the manner in which they are raised.
    2. Negligence — Contributory Negligence — Electric and Suburban Railways — Crossings.
    Decedent was not, as matter of law, guilty of contributory negligence for failing to see an interurban car approaohing in the dark without a headlight and without blowing the whistle, as he started to cross defendant’s track at a private crossing.
    3. Railroads — Operation—Whistle—Statutes.
    While an electric interurban railroad is not required by statute to give signals at highway or other crossings, failure to display a light or to give signals at night, is negligence.
    4. Same — Street Railways — Electric and Interurban Lines —Crossings.
    But no negligence is chargeable for not blowing the whistle at a private crossing.
    5. Same — Contributory Negligence.
    Before crossing the track of an interurban railway, pedestrians are required, in the exercise of reasonable prudence, to stop and listen, as in the case of railroad tracks.

    6. Same.
    Even in a case where the custom of blowing its whistle for a public crossing several rods distant from a private right of way across defendant’s tracks was known in the community, there was no violation of duty to one using the private crossing for failing to sound the whistle at the public highway.

      7. Trial — Proceedings in Absence op Jury.
    Prejudice to defendant from permitting a stenographer to read, for the information of counsel for plaintiff, in the absence of the jury, notes taken at the coroner’s inquest, was not made out.

      8. Same — Special Questions — Jury.
    It was not error, after submitting to the jury a special question on which the jurors were unable to agree, and which was not conclusive of any issue in the case, to withdraw the question from their consideration.
    9. Damages — Estates oe Decedents — Death.
    Where decedent, aman of 72 years of age, a farmer, was killed by the negligent act of defendant, and the testimony showed that he did not work his farm, but leased it on shares, receiving two-thirds of the proceeds, his wife could only recover the damages which she had sustained by reason of contributions whioh she might expect to lose as the result of his death; but such damages would not be diminished by the fact that the widow might be able to support herself.
    10. Railroads — Private Crossings — Easements.
    Owners of private crossings are not required, at all times and under all circumstances, to protect themselves from injury at the hands of a railroad company operating an electric line across them.
    Error to Ingham; Oollingwood, J.
    Submitted January 19, 1912.
    (Docket No. 131.)
    Decided May 5, 1912.
    Oase by Martha Y. Wavle, administratrix of the estate of Charles Wavle, deceased, against the Michigan United Railways Company for the unlawful killing of decedent. Judgment for plaintiff. Defendant brings error.
    Reversed.

      Sanford W. Ladd (Warren, Cady & Ladd, of counsel), for appellant. •

      Frank L. Dodge and A. A. Bergman, for appellee.

       Duty to look and listen before crossing the tracks of an electric road, see note in 15 L. R. A. (N. S.) 254.

   Per Curiam.

Upon the record of some 422 pages, 145 errors are assigned, 71 of which are based upon the refusal of the court to instruct the jury as requested to do by defendant. Seventeen are based upon the charge as given, and are in form, “ The court erred in charging the jury in the language contained in the first subdivision of the court’s charge,” and so on, giving the number of a subdivision into which the charge is divided in the record. Rulings admitting and rejecting testimony are made the basis of 47 assignments of error; and errors are assigned upon various other rulings, including, the refusal to direct a verdict for defendant. Rule 40 of this court requires that—

“The brief of a party bringing a cause into this court shall contain a clear and concise statement of the facts of the case, distinct from argument, and of the errors upon which he relies, the questions involved, and the manner in which they are raised. The court will consider such statement sufficient and accurate unless the opposite party shall point out in his brief wherein the statement is insuf-. ficient or inaccurate.”

The brief for appellant does not comply with the rule, and in itself contains little evidence that a compliance with the rule was attempted. Instead of a narration of undisputed, material facts, if there were any such, and, as to disputed facts, a statement of what the testimony produced by plaintiff and that produced by defendant tended to show, the 15 pages of matter headed “Statement of facts ” is made up largely of quotations from and statements of the effect of the testimony of certain witnesses, accompanied by argument. We come to the portion of the brief headed “Argument” without any statement or knowledge of the questions involved, or the manner in which they were raised, beyond this: It is said that plaintiff claims that on the particular occasion the servants of defendant did not, as they had theretofore customarily done, blow a whistle at a public crossing or sound a gong, and that the headlight on the car was not burning. It appears, also, from a reading of the statement that, concerning the facts so claimed by plaintiff to be true, there was a dispute. No question reviewable upon error is stated or referred to. Under the head “Argument” and subdivision “Contributory Negligence,” it is said that, “under this subdivision, the defendant relies upon the following assignments of error: 2, 13, 34, 35, 37, 38, 39, 40, 48, 49, 53, 79, 80, 141, 142.” None of these are again referred to; but the argument proceeds with the statement that “a verdict should have been directed at the close of the proofs in this case for the defendant.”

Turning, as we are obliged to do, to the record, we discover, first, that the assignments referred to are based upon refusals of the court to instruct the jury as requested, and upon portions of the charge which were given. Turning to the requests to charge, we find that the second assignment of error is based upon the refusal of the court to say to the jury that plaintiff’s intestate was, under the evidence, guilty of contributory negligence prohibiting a recovery. The thirteenth assignment of error is based upon an alleged refusal to charge that it was the duty of plaintiff’s intestate to stop, look, and listen before entering upon the track, and that his failure to do so was contributory negligence; “and, if you find he failed so to do, then your verdict must be for the defendant, no cause of action.”

The thirty-fourth is, in substance and effect, a repetition of the thirteenth request to charge. The thirty-fifth, thirty-seventh, thirty-eighth, fortieth, forty-eighth, forty-ninth fifty-third, and one hundred forty-second assignments are not essentially different from the thirteenth. Turning to the charge of the court, we find that the jury was instructed that it was the duty of plaintiff’s intestate, before attempting to cross the track, to look and listen for approaching cars from either direction, and that if they found that plaintiff’s intestate, did not look and listen “that ends the case.” Manifestly, if the court should have directed a verdict for defendant upon the ground that the undisputed testimony showed that plaintiff’s intestate was guilty of contributory negligence, it was error to submit to the jury the question whether he was guilty of contributory negligence. If the undisputed testimony did not warrant such an instruction, then the court was not in error in submitting the question to the jury The argument in the brief is, upon this subject, addressed wholly to the proposition that the undisputed evidence showed that plaintiff’s intestate could and would have seen the approaching car if he had looked for it; that he did not look or listen; in this respect his conduct was negligent, and forbade a recovery. This question is raised by the second and the one hundred forty-first and the one hundred forty-second assignments of error; it is not raised by the others to which the brief refers. Beyond this, the seventy-ninth and eightieth assignments of error raise other distinct questions. The second subdivision of the brief is headed: “Negligence. Failure to Sound Whistle” — and it is said that under this head defendant relies upon assignments of error numbered 8, 9,10,11,12, 14, 42, 71, 81, 89, 90, 91, 92, 110, 114. An examination of these assignments discovers that they are not directed to the same, but often to wholly dissimilar, propositions. The question raised appears to be that defendant owed no duty to sound the whistle at public or at private crossings, or arguendo, anywhere, unless to apprise some one actually in danger of the approach of the car. But the forty-second assignment of error is—

Based upon the refusal to give the forty-second request to charge, which was:
“ ‘I instruct you that there is no competent evidence in this case that the whistle on the defendant’s car was not blown just prior to the time of the accident, and, on the other hand, there is positive proof that the whistle was blown just prior to the accident; and I instruct you that; in so far as the blowing of the whistle is concerned, no negligence has been shown for which the defendant is liable.’”

Sufficient has been said to show the wholly useless and laborious task imposed upon the court by the failure of counsel to state in the brief, as the rules require, distinct from argument, the errors on which appellant relies, the questions involved, and the manner in which they are raised. The fault is not an uncommon one; but this is a flagrant, as well as wholly inexcusable, breach of the rule. The court regrets the necessity for thus directing attention to a source of much unnecessary labor and possible confusion. It must be evident that counsel who have tried a cause at nisi prius, which they seek to review in this court, can, and should, address themselves in this court at once, and with precision, to the errors actually relied upon, and to the reasons for believing that error was committed at the trial. There can be no excuse for presenting to the trial court, in a case like the one before us, 71 distinct requests to charge, and none for assigning error upon the refusal to give each of them.

Beginning at page 334 and ending at page 373 of the record is matter which purports to be what was said in argument to the jury by the attorneys for plaintiff, interspersed with objections, colloquies of counsel, and, perhaps, some rulings by the court. The purpose of incorporating this in the record is not disclosed.

Plaintiff, the widow of deceased and administratrix of his estate, recovered against defendant a verdict and judgment for $1,477.92 for damages for the negligent killing of her intestate. There was a motion for a directed verdict for defendant; no motion for a new trial. Defendant’s railroad is operated by electric power, and, so far as the fact is here important, it owns its right of way. According to its schedule, its cars pass over the line each half hour; there being two regular north-bound and two regular south-bound cars. ' Plaintiff’s intestate was struck and killed by a north-bound car June 18,1910, upon a private, or farm, crossing on his own farm, through which the road is laid. The time was about 7:45 p. m. Some of the witnesses say the time was about 8:20, local time.

We discuss, first, the question whether a verdict should have been directed for defendant, upon the ground that plaintiff’s intestate was guilty of contributory negligence, as matter of law. If he was negligent, it was because he did not look or listen for an approaching car before going upon the track. The farm house upon the land is upon the east side of a highway running nearly north and south. The barn and other outbuildings are on the west side of this highway. The defendant’s right of way and track are on the west side of the highway and cross the barnyard. To reach the barn and outbuildings, it was necessary to cross the railroad track. The crossing is planked; there is a board fence across the right of way north and south of the crossing; and there are cattle guards at each end of the crossing. A gate opens into the barnyard from the west end of the right of way. Fourteen rods south of this private crossing, a highway is crossed by the railroad tracks. From the private crossing to the south, the railroad runs straight, or nearly so, for a mile or more. On the day in question, plaintiff’s intestate had supper shortly after 6 o’clock, local time, and he and the witness Miller had then gone over to the barn. It was in returning to, or towards, the house that plaintiff’s intestate was killed. The car was running very fast; its speed being estimated by witnesses at from 50 to 70 miles an hour. Two persons saw the collision, the plaintiff’s witness Miller and the motorman in charge of the car. The witness Miller testified that he was two or three steps east of the gate, which was closed, and 25 or 30 feet from the track, when he saw plaintiff’s intestate, who was ahead of him, on the track between the rails, and that he appeared to be taking the step which would carry him east of the rails, when the car struck him. He (Miller) was in a position where he could see the car, and did see it — the whole of it — coming when it was at or about at the highway crossing 14 rods away. He further testified that, looking down the track to the south, a car could be seen for about a mile, but could not be seen for a mile from the barnyard. He does not state whether plaintiff’s intestate did or did not pay any attention to the car, or look to see if a car was coming; he does testify that he first noticed him when he was on the track.

The motorman testified that when he first saw plaintiff’s intestate he was on the west side of the track, about to step on the track. He was looking to the east directly across the tracks. The ear was then about 60 feet from him. He blew the whistle, put the air into emergency, reversed the car. Plaintiff’s intestate jumped to the east as the whistle sounded, and did not at any time look towards the car. There is further undisputed testimony tending to prove that a person as tall as was plaintiff’s intestate could, by looking down the track, see a car approaching from the south for a distance of a mile or more. But testimony was produced tending to prove that it was dark, or nearly dark, when the collision occurred, and that no headlight, or other light, was displayed upon the front end of the car; that no whistle was sounded for the said private crossing; that no person saw the deceased at or just before the instant when he passed upon the track. The witness Miller says the interior of the car was lighted and the headlight was not lighted. It is obvious that, if it was so dark that the approaching car could not be seen for any considerable distance, the fact that it could be seen for a long distance in the daytime is not necessarily decisive of the question of the due care of deceased. The position from which the witness Miller saw the car was not the position occupied by the deceased"; and the fact that Miller saw the lighted car, and the deceased did not see it, is a fact not necessarily decisive of the question of the due care of the deceased. Negligence of deceased, as matter of law, cannot be found from the testimony of the motorman. It was not error to submit the question to the jury, unless, as appears to be contended by counsel for defendant, it was the duty of the deceased to, in any event, keep out of the way of defendant’s cars. This contention will be noticed later on.

The subject next presented in the brief is that of defendant’s negligence, and the argument is limited, as to the facts, to the alleged failure to sound a whistle or gong. Testimony for plaintiff tended to prove that no whistle or other signal was sounded at the highway crossing, and that signals had customarily been given at that place. Testimony for defendant tended to prove that the car was equipped with a heavy whistle, and that when it was approaching, and while it was south of the highway crossing, two long and two short blasts were given. The jury was instructed: .

“The defendant company had a right, in the exercise of due care and in accordance with law, to run its cars over its tracks at such speed as they choose. If you find from a preponderance of the evidence that there was a lighted headlight on this car, and if a whistle was sounded a quarter of a mile or less before reaching the Wavle public crossing, then plaintiff cannot recover, because there was no negligence on the part of the defendant company.”

Defendant presented the following requests:

“ (8) I instruct you that under the evidence in this case the defendant is not guilty of any negligence, in so far as the blowing of the whistle or sounding of the gong is concerned.
“ (9) I instruct you that under the evidence in this case the defendant was not in duty bound to give any signal for the private crossing where the plaintiff’s intestate was struck and killed.
“ (10) I instruct you that under the evidence in this case the defendant owed no duty to the plaintiff’s decedent, at the private crossing, to give a signal at the public crossing immediately south of the private crossing in question.
“ (11) I instruct you that under the evidence in this case the defendant owned the private right of way over which its cars are operated by the defendant company, without condition, at the point where the accident in question occurred, and that the plaintiff’s decedent had a mere license to cross said private right of way over the premises of this defendant, subject to the operating of cars by the defendant as a common carrier. ’
“(12) I instruct you that under the evidence in this case the defendant had a warranty deed, placing the fee to the right of way over which its cars are operated in the defendant company, without condition, at the point where the accident in question occurred, and that the plaintiff’s decedent had a mere license to cross said private right of way over the premises of this defendant, subject to the operating of the cars by the defendant as a public carrier; and I further instruct you that it was the duty of plaintiff’s decedent, Charles Wavle, in crossing the track under said license, to keep out of the way of the cars operated by this defendant.”

None of these were given.

The statute does not impose upon defendant the positive duty to give signals at highway or other crossings. It is nevertheless bound to operate its cars with reference to known conditions. For example, it would be a reckless act if it ran a car over its road in the night, at a high rate of speed, displaying no light and giving no signals. It is wholly impracticable and unreasonable to require the cars to be brought under complete control every time a highway or private crossing is reached. Somewhere lies the course of reasonable prudence, marked out generally by experience, and variable as peculiar and unusual con. ditions are presented. Defendant’s cars are equipped with headlights, and customarily these are lighted at night. They are equipped with whistles, and these are blown, customarily, at public crossings. The whistle is not customarily blown at private or farm crossings. "We find no reason for saying that the method of operation indicated is not generally prudent. The cases are few in which courts have held, or have refused to hold, that the rules generally applicable to the operation of cars upon a steam railroad are also applicable to the operation of cars upon an electric interurban railroad, upon a private right of way. The danger of travel is much the same upon either kind of road, so far as passengers are concerned, and is quite the same to those going upon the tracks.

The duty of one traveling upon the highway to look and listen before attempting to cross the tracks of an interurban railroad was declared, with references to numerous cases in which steam railroads were parties, in Folkmire v. Railways Co., 157 Mich. 159 (121 N. W. 811). Recognizing this duty of the traveler are the cases of Snow v. Railway Co. (Ind. App.), 93 N. E. 1089; Mann v. Stock Yard Co., 128 Ind. 138 (26 N. E. 819); Cincinnati, etc., R. Co. v. Lohe, Adm’r, 68 Ohio St. 101 (67 N. E. 161, 67 L. R. A. 637); Robinson v. Railway, 99 Me. 47 (58 Atl. 57); Phillips v. Railway Co., 104 Md. 455 (65 Atl. 422, 10 Am. & Eng. Ann. Cas. 334); Cable v. Railroad Co., 50 Wash. 619 (97 Pac. 744, 23 L. R. A. [N. S.] 1224). See note to Pilmer v. Traction Co., 15 L. R. A. (N. S.) 254.

In the operation of steam railroads, the whistle is not usually sounded upon the approach of a train to a private or farm crossing; and a failure to sound it is not usually regarded as evidence of negligence. We see no reason for holding that the duty is greater when an electric interurban car is operated through the country, and the approach of the car to the crossing can be seen by those using the crossing.

But whether the failure to sound a whistle at the public crossing, if there was such failure, violated any duty owed to the plaintiff’s intestate, upon his farm with its private crossing, is a question we think must be answered in the negative. Whether the whistle was in fact sounded at the public crossing was material, as affecting the question of contributory negligence, because the public crossing was so near the private crossing. In other words, it would have been competent for defendant to prove, if it could, that the whistle was sounded so near to the private crossing as to inform those using it, or about to do eso, that a car was approaching. It does not follow that a failure to sound the whistle at the highway crossing would be a breach of any duty which defendant owed to plaintiff’s intestate at his private crossing, on his farm, even if it were true that the custom of whistling at the highway was known to those living in the vicinity thereof.

It has been held by this court that the failure of a railroad company to perform the positive statutory duty to sound the whistle at a highway crossing may be the foundation of an action against the company by one who had knowledge that the law required the whistle to be blown, and who relied upon the performance of the duty, although the injury complained about was received at a private crossing in the vicinity. Sanborn v. Railroad Co., 91 Mich. 538 (52 N. W. 153, 16 L. R. A. 119), and cases cited in the opinion. In this case it was said in the majority opinion:

“ It is contended on behalf of the defendant that the omission of this duty cannot support an action on behalf of one who was not injured at the crossing; and there are not wanting cases which sustain this contention, under statutes somewhat similar to the one under consideration. We do not, however, think that this is the proper construction to be placed upon this statute. The statute imposes a positive duty upon the railroad company to sound its whistle and to ring its bell at a certain point. It is a well-known fact that not only those about to cross the railroad track, but those in the immediate vicinity, lawfully there, are frequently induced to rely upon the performance of this statutory duty. If they do so, and without fa.ult of their own suffer an injury, we see no reason why the statute should not be so construed as to protect them. We think the true construction to be that, while a failure to give a signal required by law will not avail a trespasser in an attempt to charge the road, one lawfully in a position where such negligent omission may constitute the direct and proximate cause of the injury to him is entitled to aver such negligent act as the basis of the action.”

In other jurisdictions, the question has been presented and the decisions, not harmonious, have been rested upon the construction given the particular statute and the evident legislative intent expressed therein. Some phases of the subject are discussed, and references are made to numerous authorities, in the case of Lepard v. Railroad, Co., 166 Mich. 373 (130 N. W. 668). In the absence of a statute, the duty of defendant to sound a whistle before propelling a car over a public highway, assuming there is such a duty, arises out of the fact that it is about to cross the highway, at speed, of which fact others, having equal right to use the highway, and desiring to do so, should in prudence be warned. It is the relation of the owners of the car to the highway and its use, and to the passengers on the car, which creates and defines the duty. Outside of those relations, it owes no duty to signify an intention to cross a highway. Failure to perform the duty is negligence as matter of law only when injury results therefrom to some one to whom the duty is owing.

We are of opinion, therefore, that the court, upon the pleadings and testimony in this casé, should have given defendant’s ninth and tenth requests to charge, and that the question of defendant’s negligence should have been made to depend upon whether, first, it was so dark that a headlight on the car ought to have been burning (the car not being easily discernible by reason of the darkness); and, second, whether a headlight, or other sufficient light, was burning when the collision occurred.

Some criticism, which we think is not warranted, is made of the use in the charge of the term “preponderance of the evidence.”

Defendant offered to prove that on previous occasions plaintiff’s intestate had paid no attention to the car or to signals given, when his conduct had been discovered by the motorman; that he was careless in crossing the track ahead of cars; that shortly before the collision he was spoken to by one of the defendant’s employés respecting his carelessness, and about a particular instance of it, with a warning. The testimony was excluded. It is said that it was competent as affecting the question of contributory negligence. No authority is cited. Whether such testimony should have been admitted to rebut a presumption that plaintiff’s intestate looked and listened before going upon the track, if no one observed his conduct when he was approaching the track, is a question we prefer not to decide without argument, especially as the point may not be presented upon a new trial.

The court permitted the stenographer, who had taken the testimony at the coroner’s inquest, to read from her notes, in the absence of the jury, the testimony, or some of it, so taken, for the benefit of counsel for the plaintiff. How this proceeding prejudiced the defendant is not pointed out, and is not apparent.

A special question was submitted to the jury by defendant, viz.:

“Did the fence at the private crossing of Charles Wavle make it impossible for the plaintiff’s decedent to see the car approaching from the south, while he was between the fences at said private crossing ? ”

Upon the undisputed testimony, the question should have been answered in the negative. The jury, having been out for some hours, reported themselves not agreed upon an answer to the question. The court thereupon withdrew it from their consideration. Whether the question was answered in the affirmative or negative, it would not be controlling of the general verdict. The court committed no error in withdrawing the special question. Grimme v. Fraternal Aid Ass’n, 167 Mich. 240 (132 N. W. 497).

It appears to be the contention of plaintiff in error that it appeared from the testimony that the deceased did not himself work his farm, but at and before the time of. his death, received from a cropper, or renter, two-thirds of the proceeds of the farm, and because his widow, the administratrix, had, after his death, continued the relation with the cropper, there was no evidence of any pecuniary loss to her as a result of the death of her husband. Testimony —and there was considerable admitted — to prove damages was received over objection and exception, and the court refused to charge the jury in conformity with the theory stated, or precisely with any theory advanced for defendant. We do not think it is important to set out the testimony objected to, or the repeated requests to charge which were refused. Plaintiff’s intestate, as we infer, owned 40 acres of lañd and leased 80 other acres. There was testimony tending to prove that he superintended the farm in a way, did chores, prepared wood for fuel, and was otherwise active about the place. He was 72 years old, and had an expectancy of life of about 7 years. Our attention has not been directed to the testimony, if there is any, showing whether the plaintiff widow is entitled to retain possession of the farm or the leased lands; and we are satisfied that the testimony received to prove damages was much of it incompetent for that purpose. The statute aims at securing for those dependent upon the deceased indemnity for the pecuniary loss suffered by his death. It appears that plaintiff’s intestate was the head of his house and manager of his affairs, and that plaintiff was supported, and might expect to be supported, by him for a time at least. That she may be able to support herself is not a fact precluding a recovery. But to the extent that what she was accustomed to receive, and might be expected to receive, from him has been lost as the result of his death, she is entitled to recover. The. testimony should have been limited to such as tended to prove the accustomed contributions, the likelihood of their being continued, and the portion or value of them lost to plaintiff.

We have stated and decided what appear to be the important questions which the record presents. We overrule the contention of appellant that owners of private crossings must, at all times and under all circumstances, protect themselves from injury from defendant’s cars. We hold that it is negligent to operate such cars after dark without a proper headlight, or such other lights or warnings as will enable those using such private crossings to discover the approach of a car.

The judgment is reversed, with costs to the appellant. For the purpose of taxing costs, the record will be treated as containing 350 pages.

Bird, J., did not sit.


source: Caselaw Access Project

author: Steere, J.

license: Public Domain

text:
    MOLLICA v. MICHIGAN CENTRAL RAILROAD CO.
    1. Negligence — Railroads—Contributory Negligence.
    A bright and intelligent boy, nearly ten years old, who was killed by an approaching train, in the day time, while he was standing on the track watching a passing train on a parallel track, and waving his hands at the passengers or throwing missiles at the cars, was guilty of contributory negligence.
    2. Same — Ordinance—Speed of Train
    While the violation of an ordinance of a city regulating the speed of a train within the municipality, is evidence of negligence, it is not, standing alone, negligence which would justify a reoovery.
    3. Same — Gross Negligence.
    Although the engineer of the train which killed decedent saw him approaching the track 12 or 15 feet away, but did not check his engine, thinking that the boy would not step on the track, until he was about to go upon the rails, there was no evidence of gross negligence, where the engineer testified that as soon as he saw the danger he attempted, at once, to stop the train.

    Error to Calhoun; North, J.
    Submitted January 26, 1912.
    (Docket No. 94.)
    Decided May 3, 1912.
    Rehearing denied June 1, 1912.
    Case by Angelo F. Mollica, administrator of the estate of Vincent Mollica, deceased, against the Michigan Central Railroad Company for the negligent killing of decedent. A judgment for defendant on a verdict directed by the court, is reviewed by plaintiff on writ of error.
    Affirmed.

      Price & Whiting, for appellant.

      Wilson & Cobb, for appellee.

       Right of persons in charge of train to presume that child will get out of danger, see note in 6 L. R. A. (N. S.) 283.

   Steere, J.

Plaintiff brought this action as administrator of the estate of his minor son, who was killed by one of defendant’s trains at a street crossing in the city of Albion, Mich., on November 5, 1909.

The deceased, Vincent Mollica, was nine years and six months old, of ordinary size, very bright and quick to learn. He lived with his parents on the south side of defendant’s track, and was attending school 3£ blocks north of the crossing where he was killed. He had crossed the track twice a day in going to and returning from school since the opening of the same in September of that year. School dismissed at 3:30 p. m., after which he delivered newspapers over a route of his own.

On the afternoon in question, at the close of school, he and an older boy, named Harold Ford, who was also going to the newspaper office, located south of the track, started down Berrien street, hurrying for the office, running part way. The railway was double-tracked at this crossing, and a passenger train, just then pulling out from the railway station, was approaching the crossing from the west. The older boy, progressing faster than deceased, got across in advance of the train, which was on the south track. When deceased arrived at the track on the west side of Berrien street, the train was crossing, and he waited for it to pass, standing in the middle of the north track, looking at it and making motions towards it. Some of the witnesses testified he was waving his hands, or making signs to passengers; and others that he seemed to pick up something and throw it at the car wheels. While thus occupied, a through “blind baggage” express train on the north track, going west, passing through the city without stopping, struck him. There was a curve in the railroad track 1,400 feet east of the crossing; and the train was in sight from the time it rounded that curve.

Numerous witnesses of the accident were sworn, most of them being schoollmates. Their accounts of the accident are substantially the same, but naturally varying according to the point of observation and the particular things which each individual especially noticed. Several of the ’ witnesses saw the train which killed him approaching and, recognizing the danger, shouted to warn him; but evidently the noise of the passing train on the south track prevented him hearing them.

There was testimony that many trains passed back and forth daily on this road, and that when school was out the children were in the habit of hurrying towards the track to cross ahead of, or see pass, the passenger train due at that time. Just when the blind baggage train was due in Albion is not definitely shown by the testimony. It left Jackson at 2:2S; and it was the second section which struck the deceased, which was a mile or more behind the first. One of plaintiff’s witnesses, a boy of 13 years of age, testified:

“ The blind baggage hardly ever passed at that place; it passed at different places. I don’t know at what hour it was in the habit of going through Albion; the school children didn’t usually see it. I thought it was running pretty fast that day. I didn’t see it much until it got right onto him. It usually goes pretty fast through there, anyway. It does not stop at Albion.”

There was also testimony to the effect that others of the school children ran towards the track on the day in question along Berrien and other streets, as was common with them, to see the passenger train go past; and some of them on Monroe street, to the west of Berrien, stopped and stood on the north track, and were warned away by the flagman stationed there.

At the conclusion of plaintiff’s testimony, counsel for defendant made the following motion:

“We ask the court to order a verdict for the defendant, because the plaintiff’s proof shows that decedent was guilty of negligence that contributed to the accident or injury, and because they do not show by their evidence that the defendant was guilty of either negligence or gross negligence, as they charge in their declaration.”

This motion was renewed at the conclusion of defendant’s testimony.

Counsel for plaintiff then requested the court to charge in part as follows:

“Plaintiff requests the court to instruct the jury that the defendant was negligent in violating the ordinance of the city of Albion, and that the question of whether the plaintiff’s intestate was negligent is for the jury; * * * also that the question of gross negligence on the part of the defendant, and its negligence in not giving warning sooner and taking steps to slacken the speed of its train sooner, is for the jury, and if they believe the defendant was guilty of gross negligence, plaintiff should recover a verdict, regardless of whether Vincent Mollica contributed by his negligence to the injury which caused his death.”

This request was refused, and the court directed a verdict in favor of defendant, charging the jury in part as follows:

“That, under the evidence here, there can he no question but what this unfortunate boy was guilty of negligent conduct. It is a great misfortune; and it is a case, of course, that is most pitiable, and which touches one’s sympathies, but that cannot alter the legal situation. For that reason, the reason that he was guilty of negligence, there can be no recovery in a case of this kind, except, on the other hand, the agents of the defendant company in charge of the trains were guilty of gross negligence, which means that they either wantonly or recklessly inflicted the injury which resulted in this boy’s death. The undisputed evidence in the case shows as a whole that the engineer, the moment that he was warned of impending danger, resorted to every possible means to avert the injury; therefore it cannot be said, and there is no evidence in the case to justify a finding, that there would be gross negligence. Under those circumstances, it is my duty, although it is a responsibility the court does not assume without some hesitation, to enter a direction for a verdict, and the record may show that a verdict is entered in this case, under direction of the court, of not guilty. * * * ”

Error is regularly assigned on the refusal of the court to give plaintiff’s requests and the charge of the court in thus directing a verdict for defendant.

The declaration avers that the train was run at a reckless and dangerous rate of speed, to wit, at the rate of 20 miles an hour or faster, in violation of an ordinance of the city, restricting the rate of speed of trains within the corporate limits to 10 miles an hour. The only definite testimony as to speed is that of the engineer and fireman of the train, who testified that, as they approached the city, the brakes were tested, the steam shut off at the whistling post, over a mile out, and the train slowed down to about 20 miles an hour.

The rate of speed is not, per se, negligence. In the absence of an ordinance, it has been held that 25 miles per liour crossing a street in a city of 17,000 inhabitants is not negligence. Tobias v. Railroad Co., 103 Mich. 330 (61 N. W. 514). While the violation of an ordinance is admissible as evidence tending to show negligence, it is not, standing alone, negligence which would justify recovery, or upon which an action could be based. Haines v. Railway Co., 129 Mich. 475 (89 N. W. 349); Flater v. Fey, 70 Mich. 644 (38 N. W. 656); Blickley v. Luce's Estate, 148 Mich. 233 (111 N. W. 752).

The two pivotal points presented for adjudication by the assignments of error are: First, does the plaintiff’s testimony, taken as true, show that the deceased was free from contributory negligence on his part; and, second, is there any testimony showing that the engineer of the train which caused the injury was guilty of gross negligence, amounting to an intentional failure to perform a manifest duty in reckless disregard of the consequences affecting the life or property of another.

Were deceased an adult, no one would seriously question his extreme carelessness and negligence in standing upon a railroad track in broad daylight, while a train, in full view a sufficient time and distance for him to have easily stepped aside and avoided it, bore down upon and struck him.

It is claimed that deceased was a child of tender years, confused, and his attention diverted by the passenger train which had stopped his progress, and which drowned the sound of the other approaching train, under which circumstances he cannot be held accountable as a person of mature years and experience.

Where the plaintiff is an infant of such tender years as to be without discretion, contributory negligence cannot be imputed to him; and such is the general presumption where the child is under the age of 7 years. It is also held by some authorities that such presumption obtains, prima facie, until the age of 14 years is reached; but, where capacity is shown, the general rule of contributory negligence will apply. While in the case of a child between the ages of 7 and 14 years the allegation of age might raise some presumption which tends to remove the imputation of neglect, it is mainly a matter of pleading; and the fact, when proven on the trial, does not establish that freedom from negligence essential to recovery.

In the case of a child of the age of deceased, the law is well settled in this State that he is responsible for the exercise of such care and vigilance as may reasonably be expected of one of his age and capacity; and the want of that degree of care is negligence. The fact that he may not have as mature judgment as an adult will not excuse him from exercising» the judgment and discretion which he possesses, or from heedlessly rushing into known dangers. Where the dangers are known and understood by him, the rule of contributory negligence is fully applicable.

In this case, therefore, deceased is chargeable with a degree of care proportionate to his age and capacity. It is undisputed that he was 9 years and 6 months old, gf average size, possessed of all his faculties, very bright and intelligent; that he crossed these tracks four times each day when attending school, was familiar with the rush of moving trains, and knew that many passed daily. He knew and understood the danger and consequences of standing upon a railroad track when a train was passing over it as fully as the oldest and most experienced person; and he knew equally well that such danger could be easily avoided by keeping off of, or stepping aside from, the railway track. The boy’s father testified that he had cautioned him to be careful and not get hurt by the cars; that he was bright, and stood high in his studies; that he understood the danger of being on the track when a train approached, and “would have got off the track, sure,” had he seen the train in time. He had that capacity to understand, and the ability to perform, on which duty is predicated. It is manifest that he appreciated the danger when he at last, but unfortunately too late, noticed the train coming towards him; for he hurriedly attempted to jump to one side and avoid it. He had an unobstructed view, from where he stood, down the track for a quarter of a mile; and the train was in sight when he went upon the track and took his stand there. 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. This is not a case where he was required to exercise judgment and experience in choosing between two courses to avoid danger; he was not confronted with any dangers which he did not understand. When struck, he was standing at ease, carelessly amusing himself by throwing something at the train passing on the other track, or saluting its passengers ; and his only danger was in the spot he selected to stand upon.

Such being the undisputed facts, did the diversion of watching a passing train and the thoughtlessness and carelessness of youth excuse him for thus exposing himself needlessly to such apparent danger ? It has been held by this court that, when a boy possesses such a knowledge and understanding of dangers attending the course he pursues, the fact that he is more reckless and not as discreet and cautious as a man does not in itself excuse him; but he is chargeable with the same degree of care for his own personal safety as an adult, within the scope of his understanding of the risk he takes. Ecliff v. Railway Co., 64 Mich. 196 (31 N. W. 180).

It is well established that, where the facts are undisputed, and the minds of reasonable men are inevitably led to the same conclusions and to draw the same inferences, it is the duty of the court to dispose of the matter as a question of law.

Applying this rule to the case of minors, it has been held that, where a boy 5-J- years of age, with permission of his mother, started to go across a traveled street, and running quickly from the curb was struck by defendant’s horse and run over, the accident occurring in broad daylight, the child failed to exercise the care which was commensurate with his age and knowledge, and he could not recover. Hayes v. Norcross, 162 Mass. 546 (39 N. E. 282).

A boy 7-J- years old, being shown to have the capacity to understand that if he remained on the railway track while a train passed he would be run over, having lain down upon the track and gone to sleep, if was held his negligence precluded recovery. Krenzer v. Railway Co., 151 Ind. 587 (43 N. E. 649, 52 N. E. 220, 68 Am. St. Rep. 252).

A bright boy 9 years of age, familiar with the movement of trains, who stood beside a railroad track holding a string, one end of which was attached to his wrist and the other end to a piece of ice on the opposite side of the track, was injured by a passing engine striking the string. This was held to be conclusive evidence of contributory negligence. Spillane v. Railway Co., 135 Mo. 414 (37 S. W. 198, 58 Am. St. Rep. 580).

A boy 12 years old, who stood on one of three railroad tracks waiting for a train to pass, playing at the time, being at a crossing with which he was familiar, was struck by an engine running on the track where he stood. He was held guilty of negligence as a matter of law. Cleveland, etc., R. Co. v. Heiman, 16 Ohio Cir. Ct. R. 487.

A bright and intelligent boy 10 years old, going on an errand, while walking on the outer ends of the railway ties, was struck by a rapidly moving train. He was held guilty of negligence which precluded a recovery. Moore v. Railroad Co., 99 Pa. 301 (44 Am. Rep. 106).

A boy 11 years of age, lounging or playing on a network of tracks, and struck by a passing engine, was held guilty of contributory negligence, as a matter of law. Masser v. Railway Co., 68 Iowa, 602 (27 N. W. 776).

A similar rule has been applied to boys 8 and 9 years old, when injured on railway tracks. Murray v. Railroad Co., 93 N. C. 92; Potter v. Railroad Co., 92 N. C. 541.

In this State, the same rule has been applied in Henderson v. Railway Co., 116 Mich. 368 (74 N. W. 525), Truedell v. Railway Co., 126 Mich. 73 (85 N. W. 250, 53 L. R. A. 271), Perego v. Railway Co., 158 Mich. 225 (122 N. W. 535), and in the recent case of Knickerbocker v. Railway Co., 167 Mich. 596 (133 N. W. 504). In this last case, the principles involved are ably discussed, and the authorities cited and reviewed. It was there held that a boy 10 years old, killed at a railway crossing, was, as a matter of law, guilty of contributory negligence in riding his bicycle onto the track in front of an approaching train; there being an unobstructed view for a distance of nearly half a mile in the direction of the approaching train. The boy was shown to have lived in the vicinity of the railroad track, was accustomed to going about the city, and able to ride and manage a bicycle. The one he was riding was a new one belonging to his father, which deceased was allowed to ride at that time; and he was particularly interested in and entertained by it, evidently to the exclusion of all other matters. It was there said:

The court erred in submitting to the jury the question of the contributory negligence of plaintiff’s intestate. * * * Under the circumstances, he was chargeable with some degree of care for his own safety; and it does not appear that he exercised any care.”

Under the rule that, where the negligence of the defendant is wilful, wanton, or gross, contributory negligence is no defense, it is claimed by appellant that, even though deceased was guilty of contributory negligence, there is testimony to go to the jury tending to show that the engineer, having discovered the danger in time to avoid the accident, did not act promptly, as the law requires in such cases, but recklessly continued on and ran upon the boy. Counsel for plaintiff say in their brief:

“ It was a fair question for the jury whether or not the engineer of the blind baggage was keeping a lookout, or whether he saw Yincent at all until he was so close to him that he could neither slacken the speed of his train or give him timely warning.”

It is undisputed that it was broad daylight; and there was an unobstructed view from the track towards the approaching train for nearly a quarter of a mile. The boy came upon the north track and stopped, just as the passenger train was crossing the street; the two trains passed each other practically at that point; the blind baggage was just approaching. The engineer testified, and his testimony is undisputed, that he shut off his steam, applied the brakes, and slowed down the train as it passed through the city, reducing it to about 20 miles an hour; that he kept a sharp lookout, and when he came within about 300 feet of the Berrien street crossing, just as he was meeting the passenger train, deceased came upon the north track and started to play, or make motions as though he was throwing something; that witness at once applied the brakes, shoved the handle clear over to the full emergency, and gave the danger signal with a short, sharp series of blasts of the whistle, continuing them until he struck the boy; that at the moment the boy came upon the track and commenced making motions he realized that he was in a position of danger, and did everything within his power to stop the train. He also testified that he first saw the boy, and particularly noticed him, as he was from 12 to 15 feet from the track; the train then being about 450 feet from the crossing. When first seen by the engineer, though approaching the track, he had no idea the boy was going upon it, and anticipated no danger from seeing him near it until he stepped inside the rails, which took but an instant. The witness at once realized the gravity of the situation and did everything in bis power to avert the accident, having, before that time, assumed he would not go upon the track, but would take care of himself.

It is particularly insisted that the engineer was guilty of gross negligence in not taking action and attempting to stop his train when he saw the boy approaching the track. In Graf v. Railway Co., 94 Mich. 579 (54 N. W. 388), it was said of a party approaching a railroad track at a street crossing:

“ Had the brakeman seen the deceased as he was approaching, he certainly would have had the right to presume he would stop. He might have stopped with perfect safety when within three or four feet of the track. No obligation rested upon the brakeman to attempt to stop the cars until be saw tbat tbe deceased intended to step in front of them, regardless of tbe danger.”

And in tbe Knickerbocker Case, supra, where tbe engineer saw the boy 25 or 30 feet from tbe track, approaching it on a bicycle, it was said:

“ But it is not negligence — clearly it is not gross negligence — to fail to stop or to fail to gain complete control, of a train of cars, merely because persons are seen approaching the track upon a highway on foot, or with vehicles. Such an approach is not usually evidence of negligence, and such persons are not usually in any peril. No error was committed in refusing to submit the question of ‘gross negligence ’ to the jury.”

This language is equally applicable to the case at bar, and is controlling.

The judgment is therefore affirmed.

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


author: McAlvay, J. Moore, O. J.

text:
    GATES v. BEEBE.
    1. Amendments — Pleading—Declaration—Damages—Personal Injuries.
    Plaintiff’s declaration for the negligent killing of decedent was not erroneously amended on the trial by the addition of an item of 5>25 for a physician’s services, in the absence of any claim of surprise, or of a right to costs and an adjournment, on defendant’s part.
    2. Death — Appeal and Error — Survival Act — Declaration.
    Defendant’s claim that the suit was improperly planted under the “ death act,” and that the evidence showed only a right under the “survival act,” was not sufficiently brought to the attention of the court by an objection to testimony as to decedent’s children, which was sustained, followed by a statement of- counsel that the declaration was framed on the ‘' death act,” and opinion of the trial court that the proof must be planted on the “survival act,” the reoord also showing no exception to any ruling of the court, and no request to charge, raising the point.
    S. Same — Presumption op Care — Negligence.
    It is only where no witnesses to an aocident are produced that a presumption is indulged that a deceased person killed therein exercised due care.
    4. Same — Trial.
    Where eyewitnesses were produced who saw the injury of decedent, and whose testimony was in conflict as to his negligence, the court improperly charged the jury that decedent should be presumed to have exercised due care. Moore, O. J„ dissenting.
    Error to Wayne; Murphy, J.
    Submitted January 8, 1912.
    (Docket No. 8.)
    Decided May 3, 1912.
    Case by L. May Gates as administratrix of the estate of Frank M. Gates, deceased, against Alfred H. Béebe for the negligent killing of plaintiff’s intestate. Judgment for plaintiff. Defendant brings error.
    Reversed.

      James H. McDonald (Leo M. Butzel, of counsel), for appellant.

      Washington I. Robinson and Henry G. L. Forler, for appellee.
   McAlvay, J.

Plaintiff, as administratrix, recovered, a judgment against defendant for damages on account of the death of her husband, caused by the claimed negligence of defendant in so operating and running his automobile that it struck deceased and severely injured him, from which injuries he died within 10 or 15 hours.

Plaintiff’s intestate lived in the city of Detroit near the crossing of Grand River avenue and- High street. He was 59 years of age, and was a clothing salesman in the employ of Partridge & Blackwell, at a salary of $75 per month. On the day of his injury he left home about 12 -50 p. m. to take a car downtown. He was about five minutes late, and was hurrying. As he came to the street crossing, he was too late to get the city car, but an interurban car was following the city car. There is evidence tending to show that he left the curb, and was standing in the street by the side of the car, which was stopping, waiting for the rear of the car to come to him; that at this time defendant was driving at a high rate of speed in his automobile, a Reo runabout, with side and rear curtains on. He was going out Grand River avenue between the track and curb, near the middle of the pavement, which is 22 feet and 9 inches wide on that side. As he approached plaintiff’s intestate, the machine was turned towards the car track, where he was standing. He was struck and thrown violently upon the pavement, striking his head and fracturing his skulk Prom this injury he died during the ensuing night. No horn or warning was sounded by defendant. The defense claimed was that defendant was driving at a moderate rate of speed, and, when near deceased, turned his car towards the track to avoid some school children; that deceased suddenly and negligently ran out from the curb towards the automobile, without paying any attention to it, and ran into and collided with it on the side at the hind wheel, which, catching his feet, threw him on the pavement, and injured him.

The errors relied upon are: That the court erred in allowing an amendment to the declaration by which a new item of damage was added; that the court erred in holding that the declaration in the case stated a cause of action under the so-called survival act; that the court erred in refusing to grant a new trial. Other errors relate to refusals to give some of defendant’s requests to charge, and to portions of the charge as given.

The amendment to the declaration complained of was allowed during the course of the trial while the attending physician was being examined, and it appeared that a charge was made by him for services. By permission of the court, after objection by defendant, the declaration, which did not cover such services, was amended. The amendment was formulated and read into the record at the close of the proofs. The item amounted to $25, and proof of it was admitted. No claim was made of surprise by defendant, that it introduced a new cause of action, or that it should be allowed on terms of costs, with the trial to proceed at the option of defendant. The amendment was one within the sound discretion of the court, and its allowance was not error. Edwards v. Village of Three Rivers, 102 Mich. 153 (60 N. W. 454); Groat v. Railway, 153 Mich. 165 (116 N. W. 1081).

It is contended that this is a declaration under the death act (3 Comp. Laws, § 10427), and not under the survival act (3 Comp. Laws, § 10117), and that the court erred in construing it as he did. In this case the plea was the general issue, and we do not find in the record that defendant objected to the evidence bearing upon the question of the damages plaintiff was entitled to recover. All that appears upon the question whether or not the declaration was drawn upon the survival act before the proofs were closed is as follows: Plaintiff’s counsel asked how many children plaintiff had. Mr. McDonald (counsel for defendant) objected. The court sustained the objection.

“The Court: This action is planted upon the survival act?

“Mr. McDonald: The action is planted under the death act.

“The Court: I think under this proof it must be planted upon the survival act, must it not ?

“Mr. McDonald: I think so.”

We do not find any objection or motion upon the subject, or any ruling of the court to which an exception was taken, as claimed in the assignments of error. It may be that upon a motion for a new trial such claims were urged, but the record contains no such motion or exceptions to its denial. The record shows no objection to the allowance of damages under the survival act, and no exception to its denial, although error is assigned upon it. Nor was the matter called to the attention of the court by a request to charge. This court, therefore, does not find that the question as to the sufficiency of the declaration to sustain a recovery under the survival act is properly before the court, unless it may be claimed by the following excerpt from the charge:

“If the plaintiff is entitled to recover, she is entitled to recover such a sum as was spent in medical attendance upon the deceased, and, further, such a sum as you find deceased would have earned during the remainder of his life had he lived.”

This was one sentence from a long paragraph of the charge which covered the entire ground upon the subject of damages plaintiff would be entitled to in case the jury found for her. No request to charge upon the question was presented, nor the attention of the court called to it except as we have indicated. Under such circumstances, we think it would be unfair to the trial judge to hold that upon this record the question was presented and passed upon by him. Defendant was apprised of his views during the examination of the first witness, and had ample opportunity to put the record in proper condition to present the question to the court.

It is true that the court considered that the declaration stated a cause of action under the survival act, as appears from his charge relative to damages which correctly stated the law in accordance with our decisions. Olivier v. Railway Co., 138 Mich. 242 (101 N. W. 530). This court confines itself to records as presented, and cannot consider this question.

As to the error claimed upon the refusal of the court to grant a new trial, we need say nothing further than already appears. It is not raised upon the record. The requests to charge which should have been given were embodied in the general charge of the court. Two were properly refused:

“(1) That no negligence has been proved against the defendant.
“(2) That the deceased was guilty of contributory negligence and therefore cannot recover ”

There was a dispute in the case upon both of these propositions. Under the evidence submitted, the court should not have determined these questions as matters of law. No error was committed in refusing to give defendant’s requests.

Error is assigned upon the following charge of the court:

“ I say to you that, if the attendant circumstances happening at that time do not indicate the contrary, deceased will be presumed to have been in the exercise of due care. That is to say, gentlemen of the jury, inquire and determine from this evidence what the attending circumstances show; and, if the attending circumstances do not satisfy you that the deceased was guilty of negligence, then you may fairly presume that he was in the exercise of that degree of care which he was called upon to exercise.”

In this case there was conflicting testimony given by eyewitnesses upon the question of the contributory negligence of plaintiff’s decedent.

The court correctly charged that the burden of proof rested upon the plaintiff to show that her decedent was without negligence. This court has held in Mynning v. Railroad Co., 67 Mich., at page 680 (85 N. W. 812), as follows:

“ This is not a case where there was no living witness of the accident; consequently there is no room for the presumption arising from the natural instinct of self-preservation that deceased was exercising due care to preserve his life or person from injury.”

An examination of the original record and briefs shows that this question was presented in this case, as also appears from the opinion in the same case (it was before the court three times), reported in 64 Mich., at page 102 (31 N. W. 151, 8 Am. St. Rep. 804), as follows:

“The presumption of law is that the person killed at a crossing did stop and look and listen, and will prevail in the absence of direct testimony on the subject.”

A careful examination of available cases in other courts shows that the rule is that such presumption prevails only in the absence of direct testimony on the subject. In Mayo v. Railroad, 104 Mass. 140, the court said:

“ All the circumstances under which the injury was received being proved, if they show nothing in the conduct of the plaintiff, either of acts or neglect, to which the injury may be attributed in whole or in part, the inference’ of due care may be drawn from the absence of all appearances of fault.”

To the same effect the supreme court of Iowa has held:

“The rule as to the inference which maybe drawn from the instinct of self-preservation has been fully discussed in recent cases in this court, and need not be elaborated. The consideration of the instinct of self-preservation is to be limited to cases in which there is no direct evidence bearing on the question whether or not the injured party was in the exercise of due care at the time when the injury occurred. Bell v. Clarion, 113 Iowa, 126 [84 N. W. 962]; Ames v. Waterloo & C. F. R. T. Co., 120 Iowa, 640 [95 N. W. 161].” Phinney v. Railway Co., 122 Iowa, at pages 492, 493 (98 N. W. 358).

See, also, Texas & Pacific R. Co. v. Gentry, 163 U. S. 353-366 (16 Sup. Ct. 1104); Baltimore & Potomac R. Co. v. Landrigan, 191 U. S. 461-473 (24 Sup. Ct. 137). The charge upon which error is assigned’ was not applicable to the instant case, where there was much direct testimony bearing upon the question.

This was the only disputed question of fact in the case of any importance. The court was in error in charging that such rule of presumption applied, and such charge was prejudicial to defendant. It added the weight of this presumption to the evidence in behalf of plaintiff, so that, if all the evidence of the attending circumstances did not satisfy them that plaintiff’s decedent was guilty of negligence, its weight might have been decisive in his favor.

There was no error in the charge of the court relative to the mortality tables which were introduced in evidence. Taking the entire paragraph which treats of the subject, it correctly instructed the jury relative to the consideration to which it was entitled. The whole charge, except the one matter as to presumption above discussed, is not subject to criticism. The law of the case was clearly and correctly stated.

For the error pointed out, the judgment is reversed and a new trial ordered.

Steere, Brooke, Blair, Stone, and Ostrander, JJ., concurred.

Moore, O. J.

(dissenting). Taking the charge as an entirety, I do not think the jury was misled, and, for that reason, think the judgment should be affirmed.

Bird, J., did not sit.


text:
      In re MORSE’S ESTATE. CALDWELL v. GOODENOUGH.
    1. Estates of Decedents — Witnesses—Statutes.
    One who claims property of a deceased person by donation mortis causa is precluded by the statute from testifying to circumstances occurring at the time of the alleged gift because equally within the knowledge of deceased.

      2. Appeal and Error — Briefs—Supreme Court Practice.
    An exception, not argued in appellant’s brief, will be deemed to have been abandoned.
    3. Gifts — Subject of — Chattels—Delivery.
    Property that may pass by gift mortis causa includes not only chattels that may be delivered manually, but also notes bonds, certificates of deposit and other choses in action.
    4. Same.
    To constitute a valid gift, it must have been completed at the time it is claimed to have been made, by change of possession or of recognized evidence of ownership with intent to transfer title and dominion over the gift.
    5. Same — Bills and Notes — Banks and Banking.
    Delivery of a deposit book or certificate, with intent to donate the fund represented thereby, is a valid gift of the money deposited.
    6. Same — Delivery—Execution.
    Evidence that the daughter of decedent took sole care of him for many years, showing him much affection and care, that decedent on a previous occasion, thinking he was about to die, gave her his bank book, a certificate of deposit, and poeketbook containing cash, and that subsequently, in anticipation of impending death, directed the daughter again to take possession of the property, and stated to the nurse that he wanted the daughter to have everything, allowing her to retain and exeroise control thereover until his death, warrants a verdict for claimant.
    Error to Genesee; Wisner, J.
    Submitted January 8, 1912.
    (Docket No. 8.)
    Decided May 3, 1912.

      Lucian G. Goodenough presented his final account as executor of the estate of David J. Morse, deceased, to the probate court of Genesee county, and the same was allowed and an order of distribution made. From said order Donna Winifred Caldwell, claimant of a part of the property in said executor’s hands, appealed to the circuit court. Judgment for claimant; the executor and distributees of said estate appeal.
    Affirmed.

      Johnson & Johnson, for appellants.

      McFarlan & Wilson, for appellee.
   Steere, J.

This action involves the validity of an alleged gift mortis causa. Defendant Goodenough is the executor of the last will and testament of David J. Morse, who died at the age of 86 years, at Flint, Mich., in July, 1909. The other parties to this suit are his children. This case was first appealed by claimant from an order of distribution of her father’s estate made by the probate court of Genesee county. On the trial of said appeal in the circuit court for said county before a jury, a verdict was rendered and judgment entered in favor of claimant. It was there found that the said David J. Morse made gift to her of a certificate of deposit on the Union Trust & Savings Bank for $219.48, a Genesee County Savings Bank book showing a deposit of $488.88, and a pocketbook containing $11.19. These were claimed to have been given her by the deceased, during his last illness and in anticipation of death. The important question presented by the record in this court is whether there was any testimony to go to the jury on the question of a gift.

During the last 13 years of his life, David J. Morse, deceased, lived with and was cared for by his daughter, Donna W. Caldwell, the claimant, and her husband, Arthur Caldwell, in his home at Flint, Mich. On the 30th day of June, 1899, he made a will in which he bequeathed to the complainant all his household furniture, a horse, a cow, and other things of a personal nature in and upon the premises owned by him and occupied by them together as a home. He directed that this house and lot should be sold, subject to a mortgage held by Arthur Caldwell and Donna W. Caldwell to secure them for money advanced to pay debts and for his support; that the sum of $276.90, together with interest at 6 per cent., be paid to one Everett Morse to reimburse him for moneys spent for deceased’s benefit; and that the residue of the estate, if any, should be divided between his children in certain proportions stated in the will. At the same time this will was made, a contract was executed by which said Arthur Caldwell and Donna Winifred Caldwell were to pay certain of deceased’s debts, clothe, board, nurse, and care for him, and were to be reimbursed for all moneys they spent in his care and support, together with interest; the same to be secured by a mortgage on his home. It is the contention of claimant that shortly before his death, and during his last illness, the deceased gave to her the money, certificate of deposit, and bank book referred to, knowing at the time that he was near death.

The complainant, being an interested party, was precluded from testifying to anything which occurred in that connection, for the reason that it was equally within the knowledge of the deceased. The husband of claimant, Arthur Caldwell, was allowed to give testimony in relation to the matter, and this was excepted to on the ground that he also was an interested party by reason of the contract referred to. We are unable to find anything in the evidence which might substantiate a claim that he had any legal interest in this alleged gift. It was a matter entirely distinct and apart from the contract which he and his wife entered into with the deceased, and, so far as the record discloses, was none of his concern except as he might in a general way be interested in the welfare of his wife. As this exception is not argued in appellant’s brief, we assume it has been abandoned.

It appears that, when 75 years of age, the deceased suffered an injury by falling from a tree, several bones being broken. He at that time was somewhat in debt and had no visible means of support except a horse and cow and his home. His daughter, Donna Winifred Caldwell, the claimant, then took charge of him and nursed him through a serious illness, paying all the expenses, following which, of his own motion, the deceased made his will and had prepared the contract heretofore mentioned, providing for the repayment of the sums which she had actually expended, and for his future care and nursing, and all other actual outlays, which were to be evidenced by receipted bills and paid at his death out of the proceeds of the sale of his home. Deceased recovered from this serious injury, living over ten years thereafter, residing contentedly with claimant and her husband, who made a horn© for him, and supported and cared for him, in sickness and health. During said last 13 years of his life, his daughter ministered to his wants and seems to have furnished him the best of care. He took pride in telling his neighbors, how kind she was to him and how well she cared for him.. Their relations seem to have been friendly and affectionate. All his wants were supplied by the claimant and her husband During the remainder of his life, after h© had recovered from this serious injury, he was able to work at times and earn small sums of money, which he carefully saved, having no expenses for maintenance and support. These small earnings accumulated into the fund which is now in litigation.

The will made at the time of his injury conveyed to claimant all his then existing property, and owing to his age and severe injuries it would not be presumed that he would accumulate more. In March previous to his death, which took place in July, he became ill and was confined to his bed While so confined, he directed claimant to get and take possession of his bank book, certificate of deposit, and pocketbook. This she did and showed them to him, and he then, in the presence of her husband, “told her to be careful how she spent it, as she knew how he had earned it.” He recovered from this illness, and the property was returned to him. While, if he had died, this might possibly suggest some question of a gift mortis causa, it appears that he partially recovered, and said property was returned to him. It can therefore only be considered for what light it may throw on his acts and words relating to the same subject on a subsequent occasion. The latter part of May he again became dangerously sick, and so remained until his death. During this time he was nursed and cared for by claimant, assisted at different times as he grew worse by two nurses. About a week before his death, he again called up the matter of the bank deposits and pocketbook in the presence of one of the nurses.

Ada Myers, the nurse who was then attending him, testified:

“ Mr. Morse was in bed at that time. * * * He understood it was his last sickness, * * * He asked for Winnie, and of course when she heard her name mentioned she never waited to be called a second time. She came and stood right at the foot of the bed. He asked her if she had taken care of those things, indicating towards a closet. She said, ‘No; but I will,’ so she went right into the closet and got a pocketbook. * * * She came out, took the bank book out from the clock, and she held them up to him, and he nodded his head. He said ‘ Take care of them.’ * * * He says, ‘ Take care of those things.’ ”

Rhoda Brown, the other nurse who assisted in caring for him, describes his parting with his children, bidding them goodbye, and telling them to be good to Winnie (claimant), then calling her and expressing gratitude for her care and kindness, saying she had been a good daughter and never given him a cross word. Witness testifies:

“They went out of the room. He said to me— He started to say something. He hesitated. He said: ‘ I don’t care who knows. I mean for Winnie to have everything. ’ ”

Dr. Rice, his physician, testified to repeated conversations with the deceased in which he spoke of the good care and kindness shown him by claimant, stating that he wanted Winnie to be provided for in return for her care and kindness to him. In one conversation just before his last sickness, he told the doctor that he had a little money saved up that he had earned himself and wished to straighten up all his affairs, “ and he made the remark that what he had earned with his own hands (he put up his hands in that way) ‘ I want Winnie to have.’ * * * He told me one day he had something in the neighborhood of $600 he had saved.” On the trial of this case in the circuit court, the testimony given by Dr. Rice in probate court was read, and is in part as follows:

“David J. Morse, on the 14th of April, 1909, told me he had not — he was very feeble and could hardly get up to the house. Came one morning before I left the house, and told me he didn’t have— He wanted to straighten up this bill, as he didn’t know when he might drop off. He wanted — he hadn’t very much, and what he did have he wanted to leave to Winnie.”

Claimant’s husband testified that after the death of Mr. Morse he obtained from his wife the bank papers and pocketbook and delivered them to Mr. Goodenough, the executor of the estate, for the purpose of inventory, as advised by his counsel, at the same time stating that they belonged to his wife. Mr. Goodenough, the executor, testified that he did not recollect such a claim being made at the time.

The testimony is undisputed that at the time of the transaction in question the deceased knew death was near and, though feeble, was of sound mind.

At the conclusion of the testimony, a motion was made for the court to direct a verdict in favor of defendant on the ground that there was no evidence in support of the claim of a gift for a jury to consider. This motion was denied. The case was submitted to the jury under a careful charge as to the principles involved. Proper instruction was given as to the burden of proof and the requisites of a gift in anticipation of death. The paramount issue was stated as follows:

“If you find that David J. Morse in his lifetime said that he intended Winnie, meaning Mrs. Donna Winifred Caldwell, to have the money in the bank, whether in the shape of a bank book or certificate of deposit, and followed this up by directing Winnie to take them into her possession and take care of them, and by directing her to be careful how she spent the money represented thereby, and if you find that he later upon his deathbed redelivered them to her by directing her to remove them from their accustomed place, take charge of them, intending thereby to give them to her, then you will find in favor of Donna. Winifred Caldwell. * * * In order for Donna Winifred Caldwell to prove a gift in this case, she must prove; first, absolute delivery of said bank books and money with the intention of parting with the dominion over them by said deceased, and the vesting of the title of said books and money in Donna Winifred Caldwell.”

A motion was made for a new trial on the ground that there was no evidence to support the verdict, which was overruled for the reason that in the opinion of the court the evidence did raise an issue of fact to be submitted to the jury.

This case having been tried by a jury, the court is not called upon to weigh the evidence and determine whether a gift as claimed was actually made, but is required to find that there is any competent testimony legally tending to establish the essentials of such a gift.

The general rules of law applicable to cases of this, nature are well established by many exhaustive decisions. The only difficulty is in applying those rules to a given case. In its early history the doctrine of donatio mortis causa was applied only to chattels passing by manual delivery. It has been extended in later years to notes, bonds, certificates of stock, certificates of deposit, and other choses in action.

To constitute a valid gift, it must be full and complete at the time it is claimed to have been made. Possession. of the property or the recognized evidence of its ownership carrying title must be given by the donor to the donee, with the intent of the party delivering up such possession to transfer complete ownership by gift to the other party, passing from donor to donee legal title, power, and dominion over the thing intended to be given.

It is well settled that the delivery of a book of deposit-in a savings bank or a certificate of deposit, though not indorsed, with intent on the part of the party making the delivery to donate the fund and give the amount of money-represented thereby to the donee, is a valid gift of the money deposited. Tillinghast v. Wheaton, 8 R. I. 536 (5 Am. Rep. 621, 94 Am. Dec. 126); Camp's Appeal, 36 Conn. 88 (4 Am. Rep. 39); 20 Cyc. pp. 1238, 1239; Reed v. Whipple, 140 Mich. 7 (103 N. W. 548); State Bank of Croswell v. Johnson, 151 Mich. 538 (115 N. W. 464); Union Trust & Sav. Bank v. Tyler, 161 Mich. 561 (126 N. W. 713, 137 Am. St. Rep. 523).

There is in this case abundance of testimony showing the affection of the father for his daughter, and his gratitude to her for the care and kindness she had shown him in sickness and in health during his declining years, “ having never given him a cross word.” There is also abundance of testimony tending to show his donative intent as expressed in statements he made to his doctor and nurses. There is evidence that he knew he was about to die; that he was of sound mind though feeble, and of his own initiative, without suggestion from any one, he turned his thoughts to this property, which he had once before, in anticipation of death, turned over to his daughter with the mandate to be careful how she spent it; that he called her to his bedside, directed her to get it, and when she obeyed his instructions and took possession of it, that he enjoined upon her to take care of it. There is evidence he told his nurse that he wanted “Winnie to have everything;” that, having thus transferred possession of the property to his daughter, he thereafter exercised no dominion or control over it, , she still retaining it when he died.. The father and daughter, chief parties in this transaction, cannot speak to tell what passed between them. The mouths of both are closed, one by death and one by the law.

The following language in Love v. Francis, 63 Mich. 181 (29 N. W. 843, 6 Am. St. Rep. 290), seems applicable to this case r

“ It requires less positive and unequivocal testimony to establish the delivery of a gift from a father to his children than it does between persons who are not related, and in dases where there is no suggestion of fraud or undue influence very slight evidence will suffice.”

There is in this case no evidence of fraud or undue influence. The foregoing was quoted with approval in Union Trust & Sav. Bank v. Tyler, supra, where it was said in relation to a gift from mother to daughter:

“We are, however, of the opinion that, meager as the proof of gift is, it is still sufficient to support the inference drawn by the circuit judge that Esther Hynan, in her lifetime, gave to the defendant Catherine Gordon the bank book evidencing the deposit, with the intention of conferring upon her daughter a present ownership in the fund.”

In the case before us, we think, in the absence of fraud or undue influence, and in view of the proved affectionate relations between the father and daughter, together with his expressions of gratitude for her kindness to him during many years, that, meager as the proof of gift is, there was sufficient to submit to the jury. If so, it was for them, and not the court, to weigh the testimony and draw from the facts proven such inferences as in their discretion they deemed just and proper.

The judgment is affirmed.

Moore, C. J., and Brooke, Bi.air, and Stone, JJ., concurred.


author: Ostrander, J.

text:
    DES CHAMPLAIN v. DES CHAMPLAIN.
    Divorcie — Alimony—Release oe Dower.
    On appeal from a decree of divorce awarding the wife alimony, the order is affirmed with the modification that complainant be required to relinquish dower in defendant’s real estate. Act No. 259, Pub. Acts 1909.
    Appeal from Delta; Flannigan, J.
    Submitted January 2, 1912.
    (Docket No. 1.)
    Decided May 3, 1912.
    Bill by Philomen Des Champlain against Odelin Des Champlain for divorce. From a decree for complainant, defendant appeals.
    Modified and affirmed.

      John Power, for complainant.

      A. H. Byall, for defendant.
   Ostrander, J.

The complainant was granted a divorce. From a decree awarding her alimony, the defendant appealed to this court, and the record was remanded to the court below to take further testimony. Des Champlain v. Des Champlain, 164 Mich. 511 (129 N. W. 702). In the court below, a further decree was entered, awarding alimony to the complainant, and from this decree the defendant has again appealed to this court.

We have examined the record, and are not disposed to disagree with the learned trial judge. We think the decree below should be affirmed; and it is affirmed, with this modification, which may or may not become important: The complainant should be required to release to the defendant her dower interest in and to any real estate which he owns. Complainant will recover the costs of this appeal.

Moore, C. J., and Steers, MoAlvay, Brooke, and Blair, JJ., concurred. Stone and Bird, JJ., did not sit.


author: Brooke, J.

text:
    VOGT v. COTTIER.
    Appeal and Error — Dismissal—Partition.
    After sale of the property in a partition suit, and after a resale, in pursuance of which the purchaser paid $3,050, obtaining a deed, and the sale being confirmed, three of the defend, ants appealed, and were required by the court, on motion, to perfect the record. Seven months elapsed after the making of the order remanding the record without appellants complying with its terms. Although they attempted to excuse the delay on the theory that one of the codefendants caused the delay, it had been within their power at any time to compel some action. Held, that the appeal should be dismissed for failure seasonably to prosecute it.
    Partition by Etta Vogt against Ida Vogt Cottier and others. Part of the defendants appeal. On motion to dismiss.
    Submitted April 3, 1912.
    (Calendar No. 24,676.)
    Motion granted May 3, 1912.

      Edward S. Grece, for the motion.

      Thomas A. Conlon, contra.

   Brooke, J.

A motion is made by complainant and appellee that the appeal be dismissed. It appears that in the proceedings in the circuit court, where a partition was sought, the defendants were represented by solicitors; that a sale and resale of the property was had; that upon the final sale in August, 1910, the property brought $3,050, which was paid to the commissioner, the sale confirmed, and the deed made to the purchaser who recorded it. Thereafter, without obtaining an order of substitution, three of the defendants, one or more of whom are in possession of the property, employed a new solicitor, who attempted to perfect an appeal. A record in the cause was presented to this court at the opening of the October, 1911, term of court. A motion to remand having been made by one of the defendants, an examination of the record was made, and it was found to be defective. On October 5,1911, an order was made remanding the record for resettlement in accordance with the rules and practice of said court. Since that order was made, nearly seven months have elapsed, and the perfected record is not yet in this court. We are unable to find that the delay is attributable in any way to appellee. The affidavit of the solicitor for the appellants would seem to place the blame upon one of the defendants who has not appealed. It seems clear to us that, under the applicable rules and practice, appellants have, since the date of the order remanding the record, had it in their power at all times to compel such attention from their codefendant as would have resulted in seasonable action.

The case is one of extreme hardship to one not a party to the record. The purchaser at the sale held in August, 1910, has paid the amount of the purchase price, $3,050, which is still in the hands of the commissioner. He has been unable to secure a return of his money, and the pendency of the appeal prevents him from securing possession of the property which the affidavits show is held by the appellants, without the payment of rent or taxes.

Many reasons for dismissal are urged by the appellee. We find it unnecessary to consider them further. The failure of the appellants to seasonably prosecute their appeal is sufficient to warrant its dismissal.

The appeal is dismissed, with costs of the motion.

Moore, C. J., and Steers, McAlvay, Blair, Stone, Ostrander, and Bird, JJ., concurred.


author: McAlvay, J.

text:
    COLDWATER COPPER MINING CO. v. GILLIS.
    1. Corporations — De Facto Existence and Organization — Estoppel — Officers.
    A duly elected secretary of a foreign corporation, having a branch office in Michigan, is estopped by his dealings with the organization from alleging that it is not properly organized or legally- authorized to transact business in corporate form, as a defense to mandamus proceedings to compel him to surrender up books, papers, and records of relator in his hands as secretary.
    2. Same — Mandamus—Books and Records — Secretary.
    Mandamus will lie to compel such surrender of possession to his successor in office.
    3. Same — Adequate Remedy at Law.
    A subpoena duces tecum or replevin would not be a full and adequate remedy.
    4 Same — Decree.
    An order requiring respondent to surrender books and cash on hand, too broad because the petition did not pray that respondent be required to surrender cash in his hands, will be-amended on certiorari, and the objectionable part, being severable from the rest of the order, will be struck out.
    Certiorari to Kalamazoo; Knappen, J.
    Submitted March 12, 1912.
    (Calendar No. 23,720.)
    Decided May 3, 1912
    Mandamus by the Coldwater Copper Mining Company against Edwin Gillis to compel respondent to deliver to relator’s secretary its books and other property. An order granting the writ is reviewed by respondent on certiorari.
    Modified and affirmed.

      Osborn & Mills, for appellant.

      N. H. Stewart, for appellee.
   McAlvay, J.

Relator, a corporation organized and doing business under and by virtue of the laws of the State of Wyoming, having a branch office in Cold water, Mich., instituted mandamus proceedings in the circuit court for Kalamazoo county against Edward Gillis, of Kalamazoo, its former secretary and treasurer, respondent, who by virtue of said offices had become possessed of the books, records, papers, etc., of relator. These books, records, papers, etc., had been demanded of respondent, who, in writing, twice positively refused to deliver them to relator. An order was issued by said court to respondent to show cause why a peremptory writ of mandamus should not issue requiring him to deliver to relator all of said books, papers, data, etc., belonging to relator. The return to this court shows that this order could not be served upon respondent by the sheriff before the return day thereof by reason of his conduct in avoiding service, and the time of such return was extended and a service was duly made by a private citizen. The return also shows that respondent was not personally present at the hearing, although a resident of Kalamazoo living within three blocks of the courthouse. Respondent’s answer was not filed until the day of hearing and was not signed or verified by him. It is a formal seriatim denial, paragraph by paragraph, of the facts stated in the petition. He denies that he has the books, etc., referred to in the petition in his possession, or under his control within this State; denies the incorporation of the petitioner, charging that, if incorporated, it is a foreign corporation not entitled to do business in this State; and challenges the jurisdiction of the court. The court heard the case without a jury and granted a peremptory writ of mandamus.

The proceedings, in our opinion, do not raise the question of the right of relator to do business within this State, or its corporate powers and privileges. The objection made rested merely on a failure to prove corporate character, and is obviated by the dealings between these parties recognizing relator’s corporate character. Chapman v. Colby Bros. & Co., 47 Mich. 46 (10 N. W. 74). Respondent is estopped from disputing that it is a corporation. He was a stockholder, and for several years connected with it as an officer, active in taking part in its affairs. He signed with the president notices of meetings as its secretary. The matter of the enforcement of any contract is not involved in these proceedings.' No question between the parties is raised, except such as necessarily arises from corporate existence. The keeping of the books, records, and papers is certainly one of those powers and privileges necessarily attendant upon corporate existence. Further recognition of the corporate existence of relator appears from the fact that respondent, in writing, resigned from his office.

Repeated demands for these books, papers, etc., were shown and the written refusals to give them up. Respondent had voluntarily resigned his office, retaining all the books, records, papers, and data which came to him by virtue of his office. To discuss the testimony will be of no benefit to the profession. It is not disputed but that, at the time of the demand, he had had the books and papers in his possession in Kalamazoo. No evidence was offered by respondent in the mandamus proceedings. There was evidence in the case on the part of petitioner to support all the material allegations of the petition, and to warrant the court in granting the relief asked. The property in his possession belongs to the relator, and a subpoena duces tecum would not be a full and adequate remedy. Relator is entitled to the possession of its property, which from this record is unlawfully held by respondent.

It is claimed that the court had no jurisdiction to order respondent to deliver “cash on hand” to the relator because not within the prayer of the petition. Neither the body of the petition nor its prayer included or referred to cash in the possession of the respondent. It appears, therefore, that this was in excess of the jurisdiction of the court under the petition. Such matter, however, is sever-able and distinct from the balance of the order and has no relation to the other matters included. This, however, does not require the court to reverse the entire proceedings, but only in so far as the court exceeded its jurisdiction. 4 Enc. Pl. & Prac. p. 309; Mallet v. Blain, 58 Ga. 142.

The objectionable portion of the order for a peremptory mandamus is reversed. In all other respects the same is affirmed, but without costs of this court to either party.

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