text:
    BEGHOLD v. AUTO BODY CO.

    1. Negligence — Violation of Statute — Defenses—Contribu -
    , tory Negligence.
    The rule that a plaintiff cannot recover damages if his injury could have been avoided by the exercise of ordinary care on his part obtains in cases where the negligence of defendant is negligence in law, arising from violation of a statute.
    2. Same — Infants—Contributory Negligence.
    Though the care required of infants is measured in some degree by age, experience, and intelligence, they may, as a matter of law, be guilty of negligence, if not too immature to understand the danger and the necessity of acting carefully.
    3. Master and Servant — Personal Injuries — Violation of Statute — Contributory Negligence.
    Though plaintiff, suing for a personal injury, was employed in violation of the statute (Act No. 113, Pub. Acts 1901, § 3), which recognizes the immaturity of judgment of ohildren under 16, he cannot recover for an injury received in consequence of his thrusting his hand into a planer head on the mistaken supposition that it was not running, knowing at the time all that the most experienced person could have told him about the danger of so doing.
    4. Same — Violation of Statute — Instructions.
    Evidence that plaintiff’s brother stated that plaintiff was 16 does not entitle defendant to an instruction relieving it from liability based on violation of the statute, if the foreman who employed him believed, and had good reason to believe, he was 16, where there is no evidence that plaintiff was asked his age, or that he knew of the representations said to have been made by his brother.
    Error to Ingham; Wiest, J.
    Submitted April 16, 1907'.
    (Docket No. 20.)
    Decided July 1, 1907.
    Case by Carl Beghold, by next friend, against the Auto Body Company for personal injuries. There was judgment for plaintiff, and defendant brings error.
    Reversed.
    Defendant is engaged in manufacturing automobile and buggy bodies, and other articles, using considerable machinery driven by steam and water power., It operates a machine called a “sticker,” or “molder,” which has four knife-heads into which knives may be adjusted, and it smooths or dresses, in a single operation, one or more of the four sides of a piece of lumber. Usually two persons operate the machine — the head man, who adjusts the knives, starts and stops the machine, and feeds it, and the helper, or tail man, who takes the lumber from the machine as it comes through, and piles it. Plaintiff was employed by the defendant July 6, 1905. He was not yet 16 years of age, having been born July 28, 1889. He was set at work at the machine above described as tail man. On the second day of this employment, towards evening, his right hand was so injured in the revolving knives of one of the side heads that the thumb and all the fingers of the right band, with the exception of the little finger, with the palm of the, hand, were required to be amputated. Through his next friend he brought a suit for damages against the defendant, and recovered a verdict and judgment for $4,307.75. The jury answered in the negative the question:
    “Do you find that the plaintiff was guilty of any negligence, even though slight, which contributed to his injury?”

      A motion for a new trial, based upon the single ground that the verdict was against the clear weight of the evidence, was made and was overruled.
    It is averred in the declaration that defendant’s establishment was a manufacturing establishment, and plaintiff was carelessly and negligently employed contrary to the provisions of section 3, Act No. 113, Pub. Acts 1901; that plaintiff was not properly instructed and warned with respect to the danger of his employment, which employment is alleged to have been to work in attendance upon said sticker or molder, to clean the same while in motion, and to take and receive from it such lumber, moldings, and material as were fed into and driven through and shaped by said sticker. When plaintiff rested his case, and again when the proofs were concluded, a motion was made to direct a verdict for the defendant, which motion was overruled. The court submitted to the jury the issues of fact:
    “Was plaintiff when set at work by the defendant under the age of 16 years ? Was the work given him to do dangerous to life or limb ? Was he injured while about doing the' work he was set to do ? And was he exercising such care and caution as one of his age, intelligence, and experience ought to have brought to bear upon what he was doing when he was hurt ? ”
    The reasons assigned in this court for a reversal of the judgment are:
    1. That plaintiff was guilty of contributory negligence preventing a recovery.

      2. That the court erroneously refused instructions preferred by the defendant.
    3. Refusal to permit defendant’s witness and foreman to answer the following question:
    “Now, state, whether or not in your experience such an accident had ever before come within your knowledge.”
    4. The improper argument of counsel for plaintiff to the jury.
    5. The verdict was against the weight of evidence, and the motion for a new trial should have been granted.

      Fred L. Vandeveer (Thomas, Cummins & Nichols, of counsel), for appellant.

      Quincy A. Smith and Oscar J. Hood, for appellee.

      Rehearing denied October 4,1907.

   Ostrander, J.

(after stating the facts). The principal and meritorious question is whether plaintiff by his own negligence contributed to his injury. It is necessary to go somewhat fully into the evidence, beginning with that which is undisputed. Plaintiff worked at the sticker most of the time from the morning of the 6th to 5 o’clock in the afternoon of the 7th of July. On the night of the 6th, when the machine was idle, he cleaned and oiled it. He knew the work the machine did, and how it operated, the positions of the four knife-heads, the speed of the knives, the necessity for close observation to discover from the knives themselves whether or not they were in motion, and the danger of contact with them. He had nothing to do with the adjustment or starting of the machine. In beginning work, plaintiff reported to Urquhart, the foreman, who told him to go and help Ramsey, the head man on the machine, with whom plaintiff was acquainted.

Plaintiff testified:

“ The work consisted of taking the sticks away from the machine and cleaning and oiling it. The sticks that I took away I placed on a truck. I didn’t have anything to do with them afterwards, unless helping shove the truck to another machine. The machine stood east and west, and I was placed at the west end. The sticks were inserted or went in from the east end, and they came through to the west and were taken out and piled up by me.

“ I went to work on the morning of the 6th and worked there all that day. I had taken the sticks away, and I had oiled it, and I had cleaned it. At night the first thing I cleaned it up ready for the next morning. Before that time I had never looked at the machine. I went back to work again on the 7th, and worked until about 5 o’clock, when I got hurt. ”,

On cross-examination, plaintiff testified:

“Q. Of course, it would be necessary for Ramsey to tell you what to do; otherwise you would not have known, would you?

“A. I knew by what I saw of the boys in there. Mr. Ramsey told me what my work was, but did not tell me how to do it. He just told me to clean up the shavings and oil it. He did not tell me how to take them from the rear end and stack them on the truck I knew how to do that because he told me about the truck, and that was all there was to it, and I knew I had seen other boys put things on the truck. I knew what I had to do without being told.

Q. He had to show you the places where to oil, or else you would not have known that, would you?

“A. No, sir; he did not show me very much. He just told me to oil the cups. He would not have to show the places to oil, as they were standing right out. He didn’t give me any instructions at all about how to oil. * * * On the first morning that I went to work for the company, I went to tailing the sticker, which consists . of taking the sticks away from the machine and putting them on the truck behind me. Ramsey told me to do that. In doing that work I was in no danger, standing behind the machine, and taking the sticks off it and putting them on the truck. It did not endanger my fingers doing that, because I simply took them up and put them on the truck, and it did not endanger my life. From that place I could oil the end head. That is not the head that I got cut on.”

Early in the morning of the first day, plaintiff secured a piece of putty as large as a base ball, and put it in the blower hood, which comes down to and over the knife-head in question here. The head was not running, and there were no knives in it. Some one had thrown the putty at plaintiff, and he put it in the blower. Some time before 5 o’clock on the 7th, the head pian, Ramsey, was obliged to adjust the knives and knife-heads to suit the dimensions of the material to be finished in the machine. In doing so, he stopped the machine, and plaintiff oiled it. Some pieces were put through the machine to test and correct the adjustment. The north knife-head, with knives, was running. Having adjusted the machine in plaintiff’s presence, Ramsey, for a moment, turned away. Plaintiff had been idle, and was seated on the truck. There was a newsboy in the room, with whom he exchanged. some words. He left the truck, went around to the north side of the machine, put his hand in the knives, and was injured, as has been described. One person saw him when he was hurt. This man, working at another machine, saw plaintiff put the putty in the blower the day before, was impressed that the plaintiff was about to reach for it, cried out, and at the same instant plaintiff cried out on account of his hurt. The blower hood was a tin box, covering the knife-head in question, open toward the knives, and the lumber passing through the machine, and continued by a pipe leading away from the machine. It was from an inch and a half to two inches from the knife-head. It performed the office of sucking in and carrying away the shavings, dust, and chips made by the operation of the'machine. No one but plaintiff knows whether he was reaching for the secreted putty when he was hurt. If he was, injury was certain. After . plaintiff was hurt, bloody putty was found on the floor • under the sticker head. This brings us to some statement of testimony not wholly undisputed.

Plaintiff, on direct examination, testified:

Q. How did you happen to meet with the accident?

“A. I was sitting on the truck, and I jumped up to , clean off the shavings on the surface of the machine.

“ Q. And how did it happen that you brought your hand in contact with the knives ?

“A. I was brushing off the shavings, and I was doing like that (indicating by a motion of his hand), and the head was right over there, and it took my hand right in that way.

Q. Well, do you understand that the head that you struck your hand on — did ydu understand that it was running at that time ?

“A. No, sir.

“ Q. How long had that been running ?

“A. About 15 minutes. It had not run before I had been there for about 15 minutes.

“ Q. It had not run before during the time you had been there, do you say ?

“A. No, sir.

Q. Tell the jury what there was about the fixing of that head or setting it or starting it. What happened about that ?

“A. The man went over it, went over the machine and

■ run the machine.

‘ ‘ Q. Who was that ?

“A. Mr. Ramsey.' He put on the heads while it was idle, and put on the knives on the head and adjusted it right, and he stopped it a couple of times while he was doing this to get the right measure of the sticks, and then he would adj ust it, and he done this a couple of times, and then he started it going, and I had cleaned the machine before while it was idle and oiled it, and he got some shavings on the surface by running these sticks through, and I got up and cleaned those shavings off. Ramsey had not said a thing to me advising that he had started the head, or that it was running, and I was not aware of the fact when I undertook to clean off the shavings. On the day before and the day that I was hurt I had cleaned and oiled the machinery while it was running and brushed off some shavings when Ramsey was there. * * *

‘ ‘ Q. Could you readily discern without being careful in your looking whether or not the heads were running on it ?

“A. No, sir.

‘ Q. For what reason ?

“A. At a glance you would not know.

Q. And why ?

“A. Because they shine, and you would think they were just kind of metal and shine like a piece of iron there.

“ Q. Well, what is the cause of that? Do they run fast or slow ?

“A. They run, yes, they run awful fast. I did not re- ■ ceive any warning or caution or instructions from any one in the factory in regard to how I should conduct myself in order to avoid danger around the machine.

Q. Describe to the jury what occurred at the time your hand came in contact with the knife-head. • * * *

“A. There was a little paper boy in there. He was about six or seven feet of me, and I knew him real well, and I stepped over there, and Isays, ' Hello, Basket,’and asked him how many baskets he made, and he gave a laugh. I don’t remember what he said, and I went back and sat on the truck, and I had the oil can in my hand, and I seen some shavings on the surface of the machine, and I set the oil can on the truck and reached with my right hand to brush the shavings off and got caught.”

On cross-examination:

Q. 1 believe you stated that you saw Mr. Ramsey running through a couple of boards and trying to adjust that head so it would properly perform its work ?

“A. Yes, sir.

Q. Did he say anything to you at that time ?

“ A. No, sir.

Q. How long was this before you got hurt ? But a moment or so ?

“A. When he was running?

Q. Yes.

“A. No, it was three or four minutes. At the time I was hurt I don’t know where Ramsey was, nor if he had his back turned to me talking with another employe.

“ Q. Did you have any conversation with him relative to this head before you got hurt ?

“A. No, sir.

Q. He did not say anything to you ?

“A. No, sir.

‘ ‘ Q. And you were sitting down on the—

“A. Yes, sir.

Q. And you saw some chips there that you wanted to brush away, and you got up to do that ?

“A. Yes, sir.

Q. Did you know where he was at that time ?

“A. No, sir.

Q. You haven’t any recollection of seeing him for a few moments before that, have you ?

“A. No, sir.

“ Q. So, of course, he could not have given you any instruction about doing that work at that time ?

“A. He could if he had wanted to.

“Q. Well, I mean he didn’t, did he ?

“A. No, sir.

“Q. Now, it was his duty to push this wood .in at the opening?.

“A. Yes, sir.

“Q. And your duty to take it out ?

“A. Yes, sir.

“Q. And you and ho worked there as co-employés; you assisting him, and he assisting you by putting them up, and you taking it out ?

“A. Yes, sir. * * *

“Q. Before you put your hand there, did you stop to look to see whether or not those knives were in motion on the head ?

“A. Why, I glanced at the machine, but I didn’t know. I thought the machine had stopped.

“Q. Well, did you look to see whether or not it had stopped ?

“A. No, sir.

“Q. You didn’t?

“A. No, sir.

“Q. Now, you knew, of course, that that machine was used for the purpose of cutting chips away from the boards ?

“A. Yes, sir.

“Q. And you realized if you got your fingers in there they would be taken off ?

“A. Yes, sir.

Q. You knew that, even though no one had told you about it ?

“A. Yes, sir.

“Q. During the two days that you worked there prior to your accident, you stated that you could hardly tell the difference as to whether the heads were in motion, or whether they were standing still, because they were obliterated ?

“A. Yes, sir.

“ Q. Then you would have to take a chance and guess as to whether or not the heads were in motion ?

“A. You would have to look at it very close.

“Q. And if you didn’t look at it closely you would guess at it, wouldn’t you ?

“A. Why, I guess you would.

UQ. That is so, you would have to ?

“A. Yes, you would have to look at the belt to see whether it was running.

“Q. If you should look at the belt, could you tell whether or not it was in motion ?

“A. Yes, sir.

“Q. Because the belt would be going ?

“A. Yes.

“ Q. How far would you have to move to look at the belt ? Just simply step over a foot or two ?

“A. You would have to step over and look right around.

Q. And then you could see it ?

A. Yes, sir.

Q. Now, in moving this chip you could have taken a small stick and knocked it off, couldn’t you ?

A. Yes, sir.

Q. And the machine could have been stopped also, couldn’t it ?

A. Yes, sir.

Q. And if you had done either of those there would have been no danger to your fingers ?

“A. I thought the machine had stopped.

Q. Well, I say, if either of those had been done then there would not have been any danger to your fingers ?

A. No, sir.

Q. Because then the machine would not have been in motion, that is true, isn’t it ?

“A. Yes, sir.

Q. You said a few moments ago that you saw Mr. Bamsey testing that knife-head ?

“A. Yes, sir.

Q. It was in motion at that time ?

“A. No, sir.

Q. Well, it had been previously ?

“A. No, sir.

Q. Well, how did he know that it would not successfully perform its work, then, if he had not tested it ? •

“A. I don’t know.

Q. Isn’t it true, a few moments before, that he did run it; he would run it, and then he would stop it, and he would keep on doing that until he got the machine in the order he wanted it ?

A. Yes, sir.

Q. And how many times do you think he had stopped it?

A. Once or twice.

Q. And each time he had started it up and ran some pieces through to see if it was doing all right, didn’t he ?

A. Yes, sir.

Q. That is the way he does that ?

* * "y ^

“Q. But at the time you got hurt you say you don’t know whether it was running or not ?

“A. Yes.

Q. But you could have ascertained if you had looked at the belt easily ?

A. Yes, sir.

Q. And that you simply took the chance and thought it was not running when you tried to wipe the chip away ?

“A. I did. I didn’t see any danger.”

Ramsey testified that he told plaintiff, upon setting him to work:

Now, young man, you want to be careful and keep your hands off from this machine while it is running; if you don’t it will cut you, if you get your hands on it.

Q. Did you ever give this boy, the plaintiff in the case, any instructions about, or requests about, oiling and cleaning the machine while it was in motion ?

‘A. I did not.

Q. Did you ever see him do it ?

‘A. I did not.

Q. Did you ever request him to take chips from off the bed of the machine while the heads were in motion ?

“A. No, sir.

Q. Was there any necessity for it ?

“A. There was not.

Q. What if chips accumulated on the bed of the machine, would that in any way interfere with the passage of the board through it ?

“A. It would not.

Q. What would occur if a board would happen to strike those chips ?

“A. Simply shove it out of the way.

“ Q. Would it push it through the machine and let it fall on the floor ?

“A. It would be according to where the chips struck. If it struck on the back head, it would push it up until it came to the bottom of the head, and it would drop down through. * * *

“ Q. I wish you would narrate what you know about it to the jury. Give them as much information as you can about it.

“A. Well, after starting up that afternoon and running through those 150 pieces, one man had run with me, and I had occasion to stop and oil occasionally, and I stopped the machine and told the young man to oil it up, and he did so, and I came back and started the machine and run one piece through, stepped to the back end of the machine, and took the measurement to see that all was well, and I finds it was all right. I turned around and spoke a few words to Jim Noble, possibly talked to him a quarter of a minute. The boy at that time was sitting on the truck, and after I finished my talk with Mr. Noble I turned my back to the young man and took a chew of tobacco, and whirled around on my heel and grabbed the foot lever to throw it in gear to start the timber on through, and just as I put my hand on the lever, I heard the head stop, and I looked around and I saw the young man was fast,- and I immediately run around where he was and grabbed his hand. The head had stopped.

Q. Did you go over to the doctor’s with him?

“A. I did.

Q. Did you at that time have any conversation with him relative to the way in which' he sustained his injury ?

“A. I did.

“ Q. What did he say about it ?

“A. I said: ‘ Carl, how did you get hurt?’ He said: ‘I forgot the machine was running.’ ”

Witness Noble, who saw the plaintiff at the moment of injury, testified:

Q. Did you see the accident occur that occurred to this boy?

“A. I saw it.

‘ ‘ Q. What were you doing at that time ?

“A. Wiping out a box on my machine.

“ Q. How far away were you ?

“A. About 10 feet.

“ Q. Describe as nearly as you can the circumstances leading up to this accident.

“A. Well, in the first place, I had a hot box on my machine, and I took the box off, and was wiping it off, and I set down on the corner of my bench wiping it off, and I went over to Ed, and spoke to him, that is, I said, I can’t remember about all the talk, and—

Q. Who do you mean by Ed ?

“A. Mr. Ramsey, he was sitting on a car right back of the sticker, and I went back again. I was only about a quarter of a minute or so, and I went back, and Ed had been running a piece through the machine, and I guess he had run 150 pieces of them, and when I went back I noticed Ramsey turn around and take a chew of tobacco, and then his back was. turned. Well, in the first place, a newsboy came in and brought my paper, and Carl slung a block at the newsboy, and the newsboy asked me who slung the block, and I told the boy that Mr. Brackett slung the block. He is the man that run the band saw, and the boy turned around with a kind of a smile. He didn’t do any more.

“ Q. Well, who did actually throw the block ?

A. Well, Carl threw the block; I seen him.

“ Q. How did you happen to make the statement that Mr. Brackett threw the block ?

“A. I done it as a joke more than anything else, because the little newsboy was always laughing when he came in.

Q. What was Carl doing just before the accident occurred ?

A. Sat on the car.

Q. What do you mean by car ?

“A. The truck they pile the stuff on.

Q. What caused him to get up and go to the north head ?

A. Well, I could not say what caused him to get up; but the newsboy kind of stepped over to the other side, and when he stepped over there, he stepped over to the other side of the band saw, and when he stepped over there Carl jumped off the car quick, and he came around the side of the machine and stuck his hand in the head. When he stuck his hand in the side of the head, he hollered, or I hollered, and then he hollered. * * *

Q. When this boy came up from the — got up from the truck— I understand you to say he got up and ran around the rear of the machine and put his hand into the head ?

A. He went around the side of the machine.

Q. Around the side of the machine ?

“A. Yes.

Q. Did you see him brush any shavings away from in front of that ?

“A. No, it was done too quickly. <?

Q. Did you assist in taking his hand ?

“A. I did. ■

Q. From out of the knives ?

“A. I did.

Q. How long had you worked in the vicinity of that machine prior to this accident ?

“A. I should judge eight months, or a year.

Q. Did you work for the two days before the boy got hurt ?

“ A. Yes, sir.

Q. During that time did you see him oiling the machine or cleansing it while it was in motion ?

“A. Not when it was in motion; no, sir. * * *

Q. You saw Carl about to make some motion towards the knife-head with his hand, did you not, before he did get caught ?

“A. No, sir; he immediately got up and came around and stuck his hand in the machine. It was done so quick, just as quick as that. There was no brush.”

Plaintiff lacked but a few days of being 16 years of age. In school, he had gone to the eighth grade, and had had a little algebra. At the trial, nine months after he was hurt, he was 5 feet 8 or 9 inches in height, and weighed, when he was injured, 130 pounds. He was in possession of his faculties and the enjoyment of his senses. His answers to questions asked him upon the trial indicate intelligence. His action which resulted in injury was voluntary, intentional. Whether he intended to get the putty, or to brush off the shavings, he did what he intended to do. He supposed, he says, that the machine had stopped. He acted upon this assumption. In entertaining it, he was misled by no one, did not fail in appreciating the danger from the machine when in motion, was influenced by no failure to warn him, would not have been restrained by any warnings or instructions given him in entering the employment. If he had not entertained the idea that the knives were not in motion, it may be assumed that he would not have been hurt. The exercise of the most ordinary care would have prevented the injury. He was needlessly, inexcusably careless. The general rule is that a plaintiff cannot recover damages if the injury could have been avoided by the exercise of ordinary or reasonable care on his part. This rule obtains in cases where the negligence of defendant is negligence in law, arising from violation of a statute. 1 Thompson on Negligence, §§ 210, 211; 2 Labatt on Master & Servant, § 651; 1 Bailey on Personal Injuries, § 1290 et seq.; Queen v. Iron Co., 95 Tenn. 458 (30 L. R. A. 82); Thompson v. Edward P. Allis Co., 89 Wis. 523; Reynolds v. Hindman, 32 Iowa, 146; Taylor v. Carew Manfg. Co., 143 Mass. 470; Sterling v. Carbide Co., 142 Mich. 284; Roberts v. Food Co., 142 Mich. 589. And while the care required of an infant is measured in some degree by age, experience, and intelligence, courts have many times determined, as matter of law, that they were guilty of negligence (Henderson v. Railway Co., 116 Mich. 368; Berlin v. William B. Mershon & Co., 132 Mich. 183; Hess v. Woodenware Co., 146 Mich. 566; Roberts v. Food Co., supra), or were not too.immature to understand the danger and the necessity for acting carefully (Borck v. Nut Works, 111 Mich. 129; Palmer v. Harrison, 57 Mich. 182). In each of the cases of Sterling v. Carbide Co., supra, Ertz v. Pierson, 130 Mich. 160, and Allen v. Jakel, 115 Mich. 484, the plaintiff was, as here, under the age of 16 years. In Ertz v. Pierson, and in Allen v. Jakel, it was held that whether reasonable care required .that instruction should have been given to plaintiff as to the manner of doing the work was a question for the jury. In those cases, and in Sterling v. Carbide Co., plaintiff was employed to operate dangerous machinery. The employment was dangerous, and certain dangers were obvious. It was said in the opinion in Allen v. Jakel:

It sometimes happens that the dangers of a tool or machine are obvious, yet some methods of use are much safer than others. Skill and dexterity are essential, and prudence dictates that inexperienced persons, especially young children, should have some instruction or opportunity to learn the proper way before they are allowed to attempt to use them. Whether this was such a machine, and whether the opportunity for observation was all of the instruction reasonably necessary, were questions to be submitted to the jury, not being sufficiently clear to warrant us to dispose of them as questions of law, arising upon undisputed facts.”

These cases and the case at bar are distinguished by the fact, among others, that in the instant case, with respect to the particular action which resulted in injury, plaintiff knew all that the most experienced person could have told him. Observation must in every case follow upon instruction, and knowledge,. however acquired, must be applied. Plaintiff exercised no judgment. There is no reason for doubting the truth of his own statement. He put his hand in revolving knives, supposing they were not revolving; knowing then, as well as he knows now, that if they were revolving he would be injured; knowing that whether they were revolving or not could be determined only by close observation of the knives themselves; knowing that by a mere glance at the belt he could determine the fact absolutely. Although the employment of plaintiff was in violation of a statute, and, let it be added, of a statute which recognizes the fact that a boy under the age of 16 years is more likely to act from impulse and with less judgment than a man, the injury is so clearly one resulting entirely from the carelessness of plaintiff that the court should have withdrawn the case from the jury.

It is proper to say that in our opinion none of defendant’s request to charge which should have been given were refused, although in some cases the precise language of the request was not employed. The court refused to instruct, as requested, that:

“If defendant’s foreman who employed plaintiff had reason to believe, and did believe at the time he employed him, he was above the age of 16 years, then such employment would not be contrary to the statute, and plaintiff cannot recover on the ground that he was employed at employment dangerous to life and limb when under the age of 16 years”—

But instructed that:

“ If the boy was in fact under the age of 16 when hired by defendant, and was set at work dangerous to life or limb, it does not remove the bar of the statute for defendant to show that it believed him to be above 16, or that the brother told defendant the plaintiff was 16.”

Whether plaintiff’s own representations as to his age, aided by corroborating evidence, would in any case estop him to assert the statutory negligence of defendant, is a question not presented. It is not charged that defendant wantonly or willfully, but only that it carelessly and negligently, violated the statute. The testimony for defendant is that plaintiff’s adult brother, who applied for work for him, and himself was employed in the same establishment and in the same room, stated to the foreman of defendant, who hired the boy, that he was 16 years of age, and that to the foreman he looked to be over 16,years old. There is no evidence that the boy was asked his age, or that he knew of the representation said to have been made by his brother, and the fact that any inquiry was made, and that the brother made any representations about the matter of age, is expressly denied. Under these circumstances, the instruction given was a proper one.

The testimony excluded was immaterial. The argument of counsel for plaintiff to the jury was, some of it, clearly improper, calculated to prejudice the jury, and was persisted in after repeated rebukes and admonitions from the court.

It is unnecessary to further characterize it, since, because of the error pointed out, the judgment is reversed, and a new trial granted.

McAlvay, C. J., and Montgomery, Hooker, and Moore, JJ., concurred.


source: Caselaw Access Project

author: Ostrander, J.

license: Public Domain

text:
    ENTERPRISE FOUNDRY CO. v. IRON MOLDERS’ UNION OF NORTH AMERICA, LOCAL NO. 186.
    1. Appeal — Scope op Inquiry — Contempt Proceedings.
    The fact that an appeal, instead of certiorari, or, after commitment, habeas corpus, is taken to review an order adjudging appellant guilty of contempt in violating an injunction, will not operate to enlarge the field of inquiry in this court beyond what it would be had the review been sought in the proper way.
    2. Contempt — Violation op Injunction — Statute.
    Willful disobedience of an injunction restraining defendants from interfering with complainant’s employés is punishable as a criminal contempt, under 1 Comp. Laws, § 1098, subd. 3;
    3. Same — Jurisdiction.
    Proceedings to punish one of the defendants in a chancery suit for violation of an injunction restraining interference with complainant’s employés examined, and held, that the court had jurisdiction to issue the injunction, and to determine, in the contempt proceeding, whether defendant was guilty of a willful disobedience thereof.
    Appeal from Muskegon; Sessions, J.
    Submitted April 16, 1907.
    (Docket No. 77.)
    Decided July 1, 1907.
    Bill by the Enterprise Foundry Company against the Iron Molders’ Union of North America, Local No. 186, John Richardson, and others, to enjoin an unlawful interference with complainant’s business: On appeal of John Richardson from an order adjudging him guilty of contempt.
    Dismissed.
    On November 7, 1905, an injunction was issued out of the circuit court in chancery for the county of Muskegon, directed to certain labor unions and certain persons named therein, among them the appellant, John Richardson. It was served on said Richardson. Later, in the same month, but on what date the printed record does not disclose (Supreme Court Rule 35), the complainants in the suit filed a petition, supported by affidavits, praying for a rule requiring said Richardson to show-cause why he should not be punished for the willful violation of said injunction. An order to show cause was issued, and an answer filed, supported by the affidavit of said Richardson. Such proceedings were had, including the examination of witnesses in court, that on January 30, 1906, a judgment (and for this and the date of it we are obliged to go to the return filed in the office of the clerk of this court) was entered, the material portions of which read as follows:
    “In the above-entitled matter the respondent John Richardson, having heretofore on, to wit, the 22d day of December, A. D. 1905, by and before the Honorable Fred J. Russell, then being circuit judge of the said county, been duly adjudged guilty of a criminal contempt of court, and the said John Richardson having been duly arrested- by a bench warrant issued out of the said circuit court and brought before this court that judgment might be imposed upon him, and the said John Richardson having been brought before the bar of the court, * * * the court * * * doth find: * *■ *
    “3. That the evidence taken upon said hearing shows that said John Richardson was guilty of willful and criminal contempt of court in that the said John Richardson did on, to wit, the 20th day of November, 1905, attempt by persuasion and threats to compel one Julia A. Towne to cancel an arrangement and contract with the complainant, the Enterprise Foundry Company, and to induce her to not further furnish, prepare, or deliver to the said foundry company the meals and supplies necessary for the use of its nonunion employés, in violation of the contract which she had entered into with said foundry company.
    “4. That said John Richardson, on, to wit, the 23d day of November, 1905, was guilty of a willful and criminal contempt of court in violating the injunction before issued out of said court by attempting by persuasion, denunciation, and intimidation to induce two of the employes of said Enterprise Foundry Company, to wit, Frank Anderson and William Tryon, to leave the employment of said foundry company.

      “5. That said John Richardson was guilty of willful and criminal contempt of said court, in that he did on, to wit, the 23d day of November, A. D. 1905, in company with others of the said striking employes of said Enterprise Foundry Company, assault the said Anderson and Tryon upon the public streets of the city of Muskegon with an opprobrious name, to wit, ‘ Scab. ’ Therefore the objections alleged by the said John Richardson and his counsel are hereby overruled, and it is ordered, adjudged, and decreed, and this court, by virtue of the authority in it vested, doth order, adjudge and decree that the defendant John Richardson do pay to the register of this court for the people of this State within six days from this date a fine in the sum of $100, and, in default of the payment of said fine, the said John Richardson be committed to the common jail of the county of Muskegon until said fine be paid, but not exceeding a period of 30 days.”
    From this order and determination, the said Richardson claimed, and has taken, an appeal to this court, filing a bond, in which is recited the fact that on his application proceedings had been stayed for the purpose of such appeal. At the hearing appellant was not in court, and produced no testimony. It appears that the court first made an order reciting that said Richardson had been guilty of the several acts mentioned and set forth in the petition, that such acts constituted a willful violation of the injunction, and ordering “a bench warrant attachment ” to issue, directed to the sheriff of the county, commanding him to arrest appellant and bring him before the court, that judgment might be pronpunced. This order is dated, as shown by the return to this court, on December 22, 1905. The return indicates that the warrant issued and the judgment, herein set out in part, recites the fact that appellant was at the time judgment was entered in court.
    It is contended that the circuit court was in error in finding appellant guilty:
    “1. Because the proper practice in such case as established in this State was not followed. That interrogatories were not filed for defendant’s benefit, as required by such practice, although they were demanded and insisted upon by him. That the judgment of the circuit judge did not state of what the contempt consisted of which he was found guilty, and that said judgment was not in form or substance as is required by the statute.
    “2. Because there was, on defendant’s part, no such violation of the preliminary injunction as would form a basis for contempt proceedings.”

      Chamberlain & Walker, for appellant.

      Cross, Lovelace & Boss (Turner & Turner, of counsel), for appellee.
   Ostrander, J.

(after stating the facts). The practice pursued to obtain a review of the judgment has not been questioned by counsel. The fact that an appeal has been taken, instead of a writ of certiorari, or, after commitment, a writ of habeas corpus, by one or other of which methods review should have been sought, will not operate to enlarge the field of inquiry here. See In re Wood, 82 Mich. 75, 80, 81. What the petition and the accompanying affidavits brought to the attention of the court was the fact that appellant had willfully disobeyed the injunction. If he had, he was punishable as for a criminal contempt under 1 Comp. Laws, § 1098, subd. 3. It was the truth or falsity of this alleged fact which the court proceeded to investigate. Appellant was notified of the accusation, and given a reasonable time to make his defense. The proceeding was not instituted to enforce a civil remedy, or to protect the rights of a party to a civil action. The court had jurisdiction to issue the injunction, and to determine, in this proceeding, whether appellant was guilty óf a willful disobedience thereof.

Neither the interlocutory order nor the judgment of the court are printed in the record, and counsel for appellanthaving asserted, in their brief, that they “had no means of discovering of what acts of commission or omission defendant has been convicted,” this court might well be excused from' attempting to learn whether the acts of which appellant was convicted were forbidden by the injunction. We have, however, as is above indicated, examined the return, and find that the court has convicted appellant specifically of acts forbidden by the injunction.

An order will be entered dismissing the appeal and remanding the record.

McAlvay, C. J., and Montgomery, Hooker, and Moore, JJ., concurred.


text:
    SUTTON v. RANN.
    1. Subscriptions — Lighting Plant — Voluntary Aid — Legality op Contract.
    A contract, by -which certain citizens of a village agree to pay plaintiffs a stipulated sum of money as a voluntary aid in the construction of an electric lighting plant and flouring mill in the village in which such citizens reside, is not clearly illegal on its face.
    2. Same — Municipal Aid — Contract—Construction.
    In an action upon a contract by which defendants, citizens of a village, agreed to pay plaintiffs a stipulated sum of money as a voluntary aid in the construction of an electric lighting ■plant and flouring mill in the village, evidence examined, and held, to clearly show that defendants were, and were understood to be, a mere committee through which the parties attempted to convey a bonus from the village to plaintiffs, and that no consideration was paid or promised them for their apparent undertaking.
    Error to Shiawassee; Smith, J.
    Submitted April 16, 1907.
    (Docket No. 118.)
    Decided July 1, 1907.

      Assumpsit by Edward Sutton and George Mackey against Benjamin F. Rann, William Case, and Abraham L. Beard upon a contract of guaranty. There was judgment for defendants on a verdict directed by the court, and plaintiffs bring error.
    Affirmed.
    The parties entered into a written contract, which will be found set out at length in the opinion in Village of Morrice v. Sutton, 139 Mich. 643, 646-648. This suit is brought to recover upon that contract; the declaration counting specially thereon. Defendants pleaded the general issue with notice that defendants had paid upon the contract all they were obligated to pay; that the contract was illegal and void because, when it was made, it was understood and agreed by the parties thereto that $2,000 of the money therein provided to be paid was to be taken from the public treasury of the village of Morrice, defendants to receive the money from the village on behalf of plaintiffs and pay it over to them; that the money was so received and paid, and defendants had no interest in and received no consideration for making said contract; that the contract was and is void on grounds of public policy. Notice was given, too, that all matters involved in the suit were res ad judicata by virtue of the suit and judgment in the case above referred to.
    The testimony for plaintiffs tended to prove performance of the contract on their part and the payment of $1,000 thereon, leaving due the sum of $2,000 and interest. No testimony was offered on the part of defendants ; but, upon cross-examination of plaintiffs’ witnesses, over objection, the facts stated in the opinion above referred to (which need not be repeated here ) were made to appear, with other facts which, it is claimed, conclusively proved that the contract entered into was a mere form and blind, a step in a scheme participated in by all the parties to unlawfully obtain from the village of Morrice a bonus or gift to plaintiffs. A verdict for defendants was directed.

      Watson & Chapman, for appellants.

      John T. McCurdy and Albert L. Chandler, for appellees.
   Ostrander, J.

{after stating the facts). The question presented in this case was not. involved in Village of Morrice v. Sutton, 139 Mich. 643. The contract is not upon its face clearly illegal. There is no rule of law forbidding citizens to contract to pay in part for the erection and operation, in the communities in which they live, of mills or power plants. The undisputed evidence in this case is that the citizens of Morrice contributed the $1,000 admitted by plaintiffs to have been received by them on the contract.

Upon cross-examination of plaintiffs, defendants were permitted to,prove that other $2,000 had been paid to them in the form of certificates of deposit issued to R. B. Craig, who was at the time president of the village of Morrice, and by him indorsed, after which payments plaintiffs issued a receipt in the following form:

■ “We hereby acknowledge that (defendants) has this day in all things fulfilled their part in and to the above contract.”

Plaintiffs then offered evidence of the recovery of the money so paid by the village of Morrice in the suit above referred to, and testimony tending to prove that, although they were aware of the fact that defendants proposed, before making the contract in question, to secure the money by the issue and sale of village bonds, they declined to deal directly with the village or to accept the bonds.

The meritorious question presented is whether, upon their claim that they relied upon the undertaking of defendants according to the terms of the written contract, plaintiffs were entitled to the opinion of a jury. Upon this point the testimony has been carefully examined. There is testimony, particularly that of one of the partners, which, standing alone, would require us to say that the question could not be determined as one of law. Considered with the testimony of the other plaintiff (and plaintiffs were partners), the language employed in the contract, the fact that the village voted to issue bonds and sold the bonds before the contract was made, the fact that advice was sought by plaintiffs concerning the method of procuring the turning over of the money to them, and the nearly conclusive fact that, instead of procuring insurance upon the completed building in accordance with the terms of the contract, plaintiffs took out a policy which provided that the loss, if any, ‘' shall be held payable first unto the village of Morrice, Mich., to the extent of $2,000, less the total amount which the assured have paid for the maintenance of the said $2,000 insurance from the date of this policy to the time of the fire. The insurance of the village of Morrice is, however, void, provided the mill shall be rebuilt in case of its destruction by fire ”— we are obliged to say that a jury would be permitted to come to no other conclusion than that the defendants were, and were understood to be, a mere committee, and that there was no consideration paid or promised to them for their apparent undertaking. What was intended by all parties to be accomplished was accomplished.

The judgment is affirmed.

McAlvay, C. J., and Montgomery, Hooker, and Moore, JJ., concurred.


author: Montgomery, J.

text:
    UNDERWOOD v. A. W. STEVENS CO.
    1. Negligence — Fire — Contributory Negligence — Traction Engine — Evidence—Effect.
    In an action for the loss of a storehouse destroyed by fire as the result of the negligent operation of a traction engine while being removed from plaintiff’s premises by defendant, evidence examined, and held, that it was open to the jury to find that plaintiff, on being told that all that was wanted was a chance to take the engine, had a right to go about his other business in the expectation that defendant’s agents would use such precautions to prevent damage as were necessary, and that plaintiff was not negligent in failing to instruct them as to necessary precautions.
    2. Same — Contributory Negligence — Proximate Cause.
    The negligence relied upon being the propelling of the engine' past plaintiff’s buildings without the bonnet on the smokestack and with the damper open, the mere presence of plaintiff, and his knowledge that the bonnet was off and the damper open, when the engine was’first moved, did not amount to contributory negligence on his part, unless he was in some way responsible for the absence of the bonnet, or had the danger in mind.
    3. Same — Instructions—Support from Testimony.
    There is no error in stating to the jury that plaintiff’s claim was that he supposed that defendant’s agents would put on the spark arrester and have the protection afforded by its use, though there is no direct testimony to that effect, where it is manifest from the evidence that he relied upon them to take the usual precautions, which would, according to the testimony, include the bonnet.
    4. Evidence — Expert Testimony — Subject — Proper Use of Traction Engine.
    Expert engineers may express an opinion as to whether the running of a traction engine past buildings where there was inflammable material, with the damper open, and no spark arrester, was a proper operation of the engine, since it is not a matter necessarily within common knowledge as to how much the issue of sparks would be increased by an open damper.

      Error to Lenawee; Chester, J.
    Submitted April 17, 1907.
    (Docket No. 76.)
    Decided July 1, 1907.
    Case by Edward F. Underwood against the A. W. Stevens Company for the negligent burning of plaintiff’s building. There was judgment for plaintiff, and defendant brings error.
    Affirmed.

      Frank A. Dean (James Helme, of counsel), for appellant.

      Bird & Sampson, for appellee.
   Montgomery, J.

This is an action on the case brought to recover damages for the loss of a storehouse and contents, which were destroyed by fire as the result of the negligent operation of a traction engine while being removed from plaintiff’s premises by defendant,. who claimed the right of possession thereto by force of a chattel mortgage. The engine was a second-hand one, and was owned by the Huber Manufacturing Company. It was purchased and paid for by plaintiff without any knowledge on his part of the chattel mortgage. Soon after the purchase the defendant demanded the possession of the engine. The demand was refused. The next day defendant, in company with the sheriff of Lenawee county, again demanded the engine. Upon being assured by the sheriff that the chattel mortgage had been kept renewed, and that it was undoubtedly good, and being informed that, if the engine was not delivered to them, legal proceedings would be instituted to get possession of it, the plaintiff yielded the possession to them. The engine was fired up by defendant’s agents and propelled under its own steam by the storehouse. Soon afterwards ‘ the storehouse was seen to be on fire by a neighbor. Plaintiff and his family left home to go to the village about the time the engine left the premises. The storehouse and contents were wholly consumed. A verdict for $502.93 was returned by the jury, judgment entered thereon, and defendant has brought the case here by writ of error.

The negligence complained of in the declaration, and upon which recovery was had, was:

1. Propelling the engine by the storehouse under its own steam without a bonnet or spark arrester on the smokestack.

2. Propelling the engine by the storehouse under its own steam with the damper open.

It is contended that the plaintiff participated in the removal of the engine, and was as much responsible for its being run with the screen off and the damper open as was defendant’s agents. As the question of plaintiff’s contributory negligence was submitted to the jury under instructions which will be adverted to later, the question on this branch- of the case is whether, under plaintiff’s testimony, it appears that he participated in the acts which were negligent, or knowingly omitted to apprise defendant’s agents of the danger or of some means of avoiding it. The engine was in an engine house, the door of which was too low to admit the engine with the hood on. This hood, which consisted of wire screen to be attached to the top of the smokestack, had been removed and hung on a nail driven into a post in the engine house in plain sight, as plaintiff testifies. It was a part of the equipment of the engine and bought with it. It appears that plaintiff on the day in question was present when the engine was fired up. He pointed out to the engineer whom defendant’s agents brought with them some kind-lings. A fire was built, and the engine was run out of the engine house, a very short distance. Plaintiff himself then moved the engine two or three feet farther away from the engine house. At this stage the party adjourned for dinner. Defendant’s agents, numbering six, including a licensed engineer, ate dinner with plaintiff. After dinner defendant’s agents again fired up the engine. The plaintiff was present for a short time, but his testimony tends to show that before the engine was moved again he had left to go to the barn to hitch up a horse for his wife to drive to the city. He testified that, when the engineer moved out of the yard, he (plaintiff) was with the horse and buggy going up to the house. There was testimony that at this time the engine was being moved with the dampers open and the bonnet off.

, The defendant’s counsel contend that plaintiff was himself in fault in not requiring the bonnet to be put on. Plaintiff’s testimony was as follows:

Q. And did they put the bonnet on ?

“A. No, sir.

Q. And what is the bonnet ?

“A. It was right on a post by the tank, where it is today.

“Q. In the building where the engine was ?

“A. Where the engine was; two feet ahead of the tank, right in plain sight.

Q. Now, what was the bonnet ? Was that a protection against fire in any way ?

“A. Yes, sir; it is made of wire and put on top of a smokestack, always put on top when we move by a building. A wire screen.

“ Q. Well, why wasn’t it on the engine ?

“A. It was took off to back the engine under the shed. It was so low, and always took it off and put it on that post there out of the way. It was not out of repair in any way, so that it couldn’t have been used. * * * I kept this bonnet or spark protector right on a post about two feet ahead of the tank in the other part of the building. The tank run in one side and the engine in the other. Had to take the screen out because it wouldn’t run under— * * *

Q. Now, did you call their attention to this bonnet at the time, tell them where the bonnet was ?

“A. No, sir.

Q. Why not?

“A. Because they told me all they wanted was a chance to take the engine.

Q. Do you know whether the chattel mortgage covered the bonnet ?

“A. I do not.

Q. Did you buy the bonnet with the engine.?

“A. Yes, sir. * * *

Q. Did you think it was dangerous for him to go out of there without any bonnet on ?

“A. I didn’t think anything about it. I didn’t have any thought on that point.

“ Q. Did you think that the bonnet belonged with the engine ?

“A. Supposed it did, came with it.

Q. You knew that they were going away without it ?

“A. Why, I didn’t know what they were going away without.

Q. You saw that it wasn’t on the smokestack ?

“A. I did.

Q. Why didn’t you call their attention to it ?

“A. I was not thinking about that.

Q. Is that the only reason ?

“A. Yes, sir.

Q. Did you think they were entitled to it under the chattel mortgage ?

“A. Why, as much as they were to the engine. The tank at this time was in the east half of the engine shed. There was no partition. It was all open.”

. We think it was open to the jury to find that plaintiff, on being told that all that was wanted was the chance to take the engine, had the right to go about his other business in the expectation that the defendant’s agents would use such precautions as were necessary.

The court charged the jury as follows:

“In order to charge the plaintiff with contributory negligence in this case, you must find that his negligence contributed to the proximate cause or causes of the fire. In other words, unless the plaintiff was in some way responsible for the bonnet being left off, or the damper opened, if you find the damper was open, he could not be chargeable with contributory negligence in this case; and unless the plaintiff knew or had in mind that the bonnet was left off, or that the damper was open, when it was being driven by the buildings of the plaintiff where the sparks would blow towards the building in question, he could not be chargeable with contributory negligence.”

We think this instruction correctly states the law. It is true, as contended by plaintiff’s counsel, that ordinarily a man face to face with danger cannot excuse the want of care by claiming that he did .not have the danger in mind. This rule applies whenever the party concerned has a function or duty to perform in averting the danger for his own or other’s protection. In this case, however, the plaintiff owed defendant no duty except to avoid active negligence. He had the undoubted right to assume that defendant would use due care. If, indeed, he had it in mind in advance that the bonnet had not been put in place, and from this inferred that it was not the purpose to take it, he might properly have been found guilty of negligence, but this was a fair question for the

It is contended that the court was in error in stating plaintiff’s claim to the jury, in that he stated that plaintiff’s claim was that he supposed that defendant’s agents would put on the spark arrester and have the protection afforded by its use. There was no such direct testimony. The plaintiff evidently did not have any particular precaution which he expected of defendant’s agents in mind; but, as he testifies that he relied upon their assurance that all they wanted was a chance to take the engine, it is manifest that he relied upon them to take the usual or necessary precautions, which would, according to the testimony, include a use of the bonnet. We do not think the jury were misled by this statement of the trial judge.

Error is assigned upon a ruling of the circuit judge permitting competent engineers to express an opinion as to whether the running of this engine past buildings where there was inflammable material, with the damper open, and no spark arrester, was a proper operation of the engine, as not within the domain of expert testimony. We think the testimony was competent. It is not a matter necessarily within common knowledge as to how much the issue of sparks would be increased by an open damper.

We discover no prejudicial error. Judgment affirmed.

McAlvay, C. J., and Ostrander, Hooker, and Moore, JJ., concurred.


text:
    WILLIAMS v. VERONA MINING CO.
    1. Master and Servant — Mines — Inspection — Assumption of Risk.
    A pumpman employed in a mine long enough to raise a presumption of acquaintance with the system under which it was worked will be deemed to have assumed the risk of having the duties of watchman performed by the shift boss.
    3. Same — Fellow-Servants—Mines—Pumpman and Brakeman.
    Recovery against a mine owner for the death of a pumpman in the mine cannot be based on the negligence of a brakeman having control of the hoisting machinery, they being fellow-servants.
    3. Same — Personal In juries — Negligence—Custom — Evidence —Sufficiency.
    In an action against a mine owner for the death of a servant, a pumpman, evidence examined, and held, that there was none to show a custom of defendant of leaving its engine house and hoisting machinery without any one in charge during the hour between shifts, while pumpmen were in the mine, nor to show that the employment of a particular brakeman was such as to leave him to infer the right to leave his post of duty at such times.
    Error to Gogebic; Haire, J.
    Submitted April 17, 1907.
    (Docket No. 95.)
    Decided July 1, 1907.
    Case by Mary A. Williams, administratrix of the estate of John Williams, deceased, against the Verona Mining Company for the negligent killing of plaintiff’s intestate. There was judgment for defendant on a verdict directed by the court, and plaintiff brings error.
    Affirmed.

      George O. Driscoll, for appellant.

      Belmont Waples (Howard T. Abbott and Davis & Hollister, of counsel), for appellee.
   Montgomery, J.

This is an action to recover for injuries suffered by the plaintiff’s intestate resulting in his death. The action is brought under section 10117, 3 Comp. Laws.

Plaintiff’s intestate, John Williams, was employed as pumpman in the defendant’s mine. The mine was a one-shaft mine, contained at that time nine levels, the ninth level being the bottom level, and was about 600 feet deep. It was about 500 feet in depth from the first to the seventh level, and about 100 feet in depth from the seventh to the ninth level. Decedent was employed on the ninth level. There was a shaft sunk from the surface to the seventh level, and at a point 200 feet or a little more in a northerly direction from the bottom of this shaft from the surface to the seventh level there • was another shaft or winze sunk to the ninth level. There were ladderways in each of those shafts. The shaft which extended from the surface to the seventh level was fitted up with a skipway and skip, and was called the “skip shaft;” and the shaft which extended from the seventh to the ninth level was fitted up with a cageway and cage and was called the “cage shaft.” The skip and cage were operated by means of drums in an engine house on the surface in charge of employes of defendant, called “brakemen;” the skip and cage being attached to the drums by means of cables. The cage and skip were hoisted and lowered in response to electric bell signals from the men on the surface and in the several levels of the mine, except the ninth level, at which there was no signal wire. All that a person in the mine (except at the ninth level) who wanted to be hoisted out had to do, provided there was a brakeman at the drums, was to ring a bell, and he could be hoisted out by means of the skip and cage. The ladderways mentioned were constructed of ladders about 16 feet long, one setting behind the other, and a manhole from one to the other, and there was a partition or dividing place between the ladderway and the skipway and cageway. The men who were working in the mine sometimes rode on the cage from the seventh to the ninth level, and sometimes they “ walked.” The seventh level of the mine was simply a cross-cut. There was a track there on which they transferred cars from the skip, shaft to the cage shaft, and it was timbered from the bottom of the skip shaft to the top of the cage shaft. The ladderway in the cage shaft was on the west side of the shaft. In order to go from the surface to the bottom of the mine, one would have to go down in the skip shaft to the seventh level, then through the cross-cut on the seventh to the top of the cage shaft, and then down the cage shaft to the ninth level or bottom of the mine, and there was no. other way of getting out of the ninth level, except through the cage shaft and through the skip shaft.

Defendant was working the mine day and night shifts, and about 35 to 40 men worked on each shift. They used candles for light ; the mine having no electric lights. They had air compressors for running drill machines, but none for furnishing air, and there was a down draft in the mine, so that if there was smoke on the seventh level it would descend to the ninth. It would take an ordinary man from 10 to 15 minutes to climb from the ninth to the seventh level, and about 30 minutes to climb from the seventh level to the surface of the mine on the ladders, and about li or 2 minutes to pull a skip load of men from the seventh level to the surface, and about a minute to pull a load from the ninth to the seventh level. The laborers in and about the mine are denominated “miners, timbermen, pumpmen, brakemen, and machinists,” and Capt. Webb had full control and management of the mine at that time. On the morning of November 5, 1901, while decedent was engaged in his duties, a fire occurred in the mine, and after the fire was extinguished the next day decedent was discovered about 15 feet from the place where the shaft leading to the ninth level intercepted the cross-cut on the seventh level, lying face down dead. It also appeared that one of the steam pipes had burst, and there were indications that decedent had been scalded by escaping steam; but whether this was the cause of his death, or whether he was suffocated by smoke in his attempt to ascend from the ninth level, is not apparent..

The declaration contains numerous counts, but it may be said that the negligence imputed to defendant was in not having constantly at the hoisting apparatus at the surface of the mine a man in attendance, so that when signaled from below the skip could be hauled up; plaintiff’s theory being that, had the brakeman been at his post of duty, the jury might properly have found that Williams could, by signaling to the brakeman, have been hoisted out of the mine and his life saved. As to the necessity of employing a watchman, it is in evidence that George Sanders, the foreman of the mining crew, was the last man out of the mine on the morning in question; that he searched the mine before he came up; that he went all over the mine; that he did this because that was his duty for the purpose of seeing that everything was all right; and that he left the mine about 5 minutes to 6. It was a small mine, 35 to 40 men working on a shift, and it appears that Sanders performed the ordinary duties that a watchman would perform, and that as a matter of fact an inspection had been made of the mine but a very few moments before the» fire broke out, and that no fire was discovered. It is hardly conceivable that the decedent was not acquainted with the system under which this mine was worked, and the fair inference is that he assumed the risk arising from the absence of any other watchman and' of the duties being performed by the shift boss.

The question which seemed to occasion most doubt to the circuit judge was whether the defendant was responsible for the absence of the brakeman from his post of duty on the occasion in question. It is apparently conceded, and is beyond question, that the brakeman was a fellow-servant of decedent, and that recovery cannot be based upon his negligent act. Plaintiff, however, sought to show that it was a custom of the company to leave the engine house without a brakeman in attendance on occasions between the hours of 6 and 7 o’clock in the morning and while the pumpmen were at work in the mine. The mine was run on two shifts; an hour intervening between the employment in the mine of the main body of workmen of each shift. In the morning the workmen came up from the mine at 6 o’clock; the day crew taking their place at 7. In the meantime, if timber was to be lowered into the mine, the timber crew was employed during this hour; if not, no one was employed except the brakeman in the engine house. It was sought to show a custom of leaving the engine house without any one in charge during this hour on occasions when there was no timber tobe lowered, and it was also contended that the employment of the man Hagerty, who was the brakeman on the morning in question, was such as to leave him to infer the right to leave his post of duty when no timber was to be raised.

There were two witnesses called upon this point, one Montgomery, and Hagerty, the man in charge of the engine house. ‘The witness Montgomery testified that the workmen who were working usually quit each morning when there was no timber, and also that he-had heard the brakeman ask Capt. Webb if that was all, and that the captain told them it was, and of course they would go; but on further examination this witness testified:

“ The practice was for the brakemen to work until 7 o’clock. I couldn’t say that I was ever present when the night brakemen quit before 7 o’clock in the morning. I do not know whether there was any custom previous to the 1st day of November, 1901, at the engine house in regard to brakemen quitting when there was no timber to be lowered. * * *

“ Q. What were they referring to when'they said ‘ was that all ? ’ * * * What would the brakeman do then ?

“A. Go home, I suppose. * * * He [Capt. Webb] went to work in the morning long about 7 o’clock. It would be pretty close to that. I didn’t say I heard these conversations between Capt. Webb and the brakemen in the morning at all. He was supposed to quit at 6 o’clock. It would be after 6 that I heard those conversations. * * * The custom was to stay until the hour; that is, the man would go on at 7 o’clock and work till 6. That was the ordinary course. They had timber to go down mostly all the time; very seldom they didn’t have timber to go down between 6 and 7,' or between 12 and 1. I couldn’t say how often that happened during the three months previous to this accident.

Q. You couldn’t say it happened at all within three months ?

“A. I couldn’t say as to that. I couldn’t say as to whether or not the brakemen, sometimes, by an arrangement between themselves the one who was to come on for night shift, come on a few minutes before the regular time to relieve his partner, or as to whether or not the man who was to come on for the day shift carde on a few minutes earlier so as to relieve the man who had been on the night shift. I don’t know on how many occasions I heard this conversation between the captain and the brakemen.

“ Q. There was only two classes of men that worked in the mine 12 hours; that is, the pumpmen and the brakemen ?

“A. Well, I don’t know about the timber gang how long they worked. I understood that the pumpmen and the brakemen worked 12 hours to the shift; that was the general understanding — what I understood. When they were hoisting the brakemen were always there.

Q. Now, can you tell me on some occasion when a brakeman left his machinery before his partner got there to take his place ? ,

“A. I could not.

Q. You can’t tell me that ever occurred, can you, to be able to swear to it ?

“A. No, sir, I wouldn’t say that at all.”

Taking the testimony of this' witness as a whole, it is clear that he is not able .to testify to any case in which the brakemen were directed or permitted to leave by the captain.

The witness Hagerty, on his direct examination, testified as follows:

“ That custom was that we were to lower timber if they wanted us to lower timber between hours, and if they didn’t it was an understanding we should go home. * * * Capt. Webb never told me I could leave there before 7 in the morning. Nobody in authority ever told me that. During the three months or such a matter that I worked there before this accident to Mr. Williams, I had not left the machinery before the opposite man on the shift came only once. That’s all I could remember of in three months. * * *

Q. Are you positive there was no other occasion you left before your partner came ?

“A. That is when I was night shift? No, I can?t remember. . I don’t remember when I was on the day shift of any time when Tleft before the man who was to relieve me came. There may have been once or twice.

“Q. You can’t swear to that ?

“A. I can’t say that there was or wasn’t.

tiQ. And, if you did so, you had no authority from any one who had control over the matters ?

“A. Had no authority to leave. I took it we had authority.

“Q. You took it so?

“A. Yes.

“Q. But Capt. Webb never told you to?

“A. No.

“Q. Nor Mr. Barber didn’t ?

“A. When Mr. Barber put me in there—

“Q. Let me ask you the question: Did Mr.' Barber tell you that, that you could leave before the man came on to relieve you ?

“A. No, he didn’t put it that way. * * * He said, ‘You go in there,’ and I was to get $2.25 a day, and I was to stay there between hours and lower timber, if they wanted me. That’s exactly the words, as near as I can come to them.

“Q. He never told you to leave there when there was not timber to be lowered ?

“A. No, sir.

“Q. You understood your regular hours were to be there until the man came to relieve you ?

“A. If there wasn’t timber to be lowered.

Q. And that was an understanding you got from what was said ?

“A. Yes,'sir.

“Q. And there was no understanding what you were to do, if there was no timber to lower, by Mr. Barber,?

“A. No, sir; he didn’t mention it. * * * The only reason for me leaving that morning was’ because there • wasn’t any timber to go down, and because of this conversation that occurred between me and the other .brakeman.

“Q, And that’s the only reason you left?

“A. I wasn’t notified to stay there unless there was timber to go down.

“Q. And you took the matter in your own hands to go away without any authority or anything from anybody ?

“A. I don’t think I had any authority. I did it without any authority.

“Q. And you didn’t do it before.

“A. I don’t know that I ever had a chance. I don’t know if I did have authority.”

It is contended by the, plaintiff that this conversation between Mr. Barber and Mr. Hagerty was open to the construction that Hagerty was only to remain during the hour from 6 to 7 in case there was timber to be lowered. In view of the nature of his employment, and with the testimony that the shift was a 12-hour shift, and in view of the knowledge which he must have had that men were employed in this mine, and that one purpose of his attendance at this engine house was to be able to bring them up when a call was made, it is simply incredible that he could have understood that he was at liberty to leave his post of duty with these men in the mine. His own testimony shows that he did not rely upon the conversation with Barber as a justification for leaving his post of duty, but that the only reason on that morning was because of the conversation which had occurred between him and the other brakeman. We do not think the conversation was open to the inference that is now sought to be put upon it, and it results that there is nothing to raise an issue of fact in the case as to whether this accident occurred by reason of the default of this fellow-servant of the decedent.

The circuit judge on this ground directed a verdict for the defendant, and the judgment will be affirmed.

McAlvay, C. J., and Ostrander, Hooker, and Moore, JJ., concurred.


author: Per Curiam.

text:
    PRATHER ENGINEERING CO. v. GENESEE CIRCUIT JUDGE.
    Courts — Jurisdiction — Priority — Mortgage Foreclosure— Mechanics’ Lien.
    Where, subsequent to the filing of a mechanics’ lien on certain physical property of a railway company, but prior to the filing of the bill to enforce it, a bill to foreclose a mortgage on the entire property of the company was filed in another county, in which the company possessed only franchise rights, the filing of the foreclosure bill gave the court of the latter county exclusive jurisdiction of the entire controversy, including the rights of the lien claimant.
    Mandamus by the Prather Engineering Company and J. H. Kusell, trustee, to compel Charles H. Wisner, circuit judge of Genesee county, to vacate an order denying a motion to make a receiver a party defendant to a cause pending in another county.
    Submitted May 18, 1907.
    (Calendar No. 22,256.)
    Writ denied July 1, 1907.

      Keena, Lightner & Oxtoby, for relators.

      Bundell & Stockton and Brown & Farley {Alex. J. Oroesbeck and Edwin Henderson, of counsel), for respondent.
   Per Curiam.

Application for a writ of mandamus requiring respondent to grant leave to relators to make the Detroit Trust Company, receiver of the Detroit, Flint & Saginaw Eailway, defendant in a cause pending in the circuit court for the county of Saginaw, wherein relators are complainants and the Detroit, Flint & Saginaw Eailway, Detroit Trust Company, and others, are defendants. The Detroit, Flint & Saginaw Eailway was organized under the train railway act for the purpose of constructing and operating a line of railway from the city of Saginaw to the city of Flint, and also a branch line to the village ofVassar. On the 30th. day of January, 1904, the railway company executed a mortgage to the Detroit Trust Company, as trustee, covering all of the property, of every kind and description, which the railway company then had or might, in the future acquire. This mortgage was duly recorded in the counties of Saginaw, Tuscola, and Genesee. Previous to January, 1906, the Prather Engineering Company and its assignors had, under a contract with the railway company entered into subsequent to the execution of the aforesaid mortgage, constructed and equipped a power house for the use of the railway company in the village of Bridgeport, Saginaw county. On January 9, 1906, the- engineering company filed a mechanic’s lien upon the power house plant and took proper statutory proceedings to perfect that lien. On November 20, 1906, the Detroit Trust Company filed its bill of complaint in the circuit court for the county of Genesee to foreclose the mortgage above referred to, making the engineering company and its subcontractor, the Harrisburg Foundry & Machine Works, defendants among others. On the date last mentioned the Detroit Trust Company was appointed receiver of said railway’s property. On the '8th day of January, 190?, the Prather Engineering Company and J. H. Kusell, trustee, filed their bill of complaint in the Saginaw circuit court, in chancery, to enforce the mechanic’s lien aforesaid, making the Detroit Trust Company, as trustee, the said railway, and others, defendants; but the said receiver was not made a party because, as stated in the petition, “your petitioners did not regard said Detroit Trust Company, as receiver, a necessary party to its proceedings, * * * and as the bill of complaint was not ready for filing until the 8th day of January, 190?, it was impossible for petitioners to make a proper motion in the Genesee circuit for leave,” etc., “ within the time limited by statute for the filing of a bill of complaint to enforce said mechanic’s lien.” On January 22, 190?, the Detroit Trust Company, as trustee, and the railway company, pleaded the failure to make the receiver a party, and such plea was sustained February 25, 1907, with leave to apply to the Genesee circuit court, in chancery, for leave to make the receiver a party. On February 26, 1907, relators applied to respondent for leave to make the receiver a party to the Saginaw suit, which application was denied on March 11, 1907. On March 19, 1907, the Prather Engineering Company appeared generally in the suit in the Genesee circuit. On April 9, 1907, the said engineering company filed its plea to the jurisdiction of the Genesee county court, setting up the mechanic’s lien proceedings in Saginaw county. On the 15th day of April, 1907, the court overruled the plea, with leave to answer within 30 days. The Harrisburg Foundry & Machine Works answered the foreclosure bill, and, claiming the benefit of a cross-bill, asked for affirmative relief, praying that it be decreed to have a prior lien over the trust company, the Prather Engineering Company, and the other defendants, for engines and machinery furnished for said power house to the amount of $10,-997.40.

The principal business office of the railway company was in the city of Saginaw, and it had about 12 miles of road constructed in Saginaw county. It owned no land outside of that county. The property of the railway company outside of Saginaw county consisted of certain privileges, rights, and franchises in and from the city of Flint, the village, of Clio, and the townships of Vienna, Thetford, Genesee, and Mt. Morris, in Genesee county. Judge Gage was of the opinion that under the decisions of this court (see Burk v. Foundry Co., 98 Mich. 614; Earle v. Humphrey, 121 Mich. 518) the receiver was a necessary party to the suit before his court; but he said:

The court is satisfied this is the proper court in which to enforce a lien, and that another circuit outside of this is not the proper one in which to enforce a lien.”

On the other hand, Judge Wisner held that he had exclusive jurisdiction over the entire subject-matter of the mortgage foreclosure, including the interests of lienors in other counties, and that the interests of all parties must be determined in the foreclosure suit. It was upon this ground, largely, that he denied the application for leave to make the receiver a party.

We are of the opinion that the Genesee circuit court, in chancery, by virtue of the foreclosure proceedings, acquired exclusive jurisdiction of the entire matter in controversy, including the rights of the Prather Engineering Company, if any, acquired under the mechanic’s lien proceedings, and that such rights may properly be asserted by answer and determined in that court. Campau v. Driving Club, 130 Mich. 417; McKay v. Van Kleeck, 133 Mich. 27; Wells v. Montcalm Circuit Judge, 141 Mich. 58; Convis v. Insurance Co., 127 Mich. 616; Koch v. Sumner, 145 Mich. 358.

Writ denied, with costs, with leave to relator to answer within 20 days from the filing hereof.


author: Carpenter, J.

text:
    NOLAN v. GARRISON.
    Appeal and Error — Chancery Appeals — Settlement oe Case —Time—Statute—Court Rules — Construction.
    Act No. 129, Pub. Acts 1905, does not, by reference therein to Circuit Court Rule No. 47, limit the time for making and settling a chancery case for appeal to the time provided by said Rule 47, but the statute expressly grants three months in which to make and file a case, and gives the circuit judge authority to extend the time without cause and without notice to a time not exceeding six months after the entry of the decree.
    Bill by Frances A. Nolan against John W. Garrison and others for an accounting, and to set aside certain deeds. From a decree for complainant, defendants appeal: On motion to dismiss said appeal.
    Submitted June 4, 1907.
    (Calendar No. 22,239.)
    Denied July 1, 1907.

      Walker & Spalding, for the motion.

      Edward McNamara (H. Q-eer, of counsel), contra.
   Carpenter, J.

This is a motion to dismiss an appeal from a decree rendered by the circuit court in favor of complainant. The decree was entered October 8, 1906. Claim of appeal was filed October 16, 1906. On January 4, 1907, the circuit judge, without any cause being shown therefor, extended the time to settle the case on appeal for six months from the'entry of the decree. The case on appeal was settled, signed, and filed April 6, 1907.

Appellee moves to dismiss the appeal on the ground that the order made January 4th by the circuit court extending the time to settle the case was unauthorized and void. He contends that according to the proper construction of Act No. 129, Pub. Acts 1905, the time to settle the case for appeal is determined by Circuit Court Rule No. 47, and that, according to this rule, an order extending time to settle a bill made more than 80 days after judgment, without good cause shown, is void. See Hayes v. Ionia Circuit Judge, 125 Mich. 277; Lake Shore, etc., R. Co. v. Branch Circuit Judge, 116 Mich. 399. We do not question appellee’s construction of Circuit Court Rule No. 47, but we do question, his claim that the time to settle the case for appeal is determined by said rule. Act No. 129, Pub. Acts 1905, providing for chancery appeals, reads:

“ That in all cases, whether the same shall be so tried in open court or the testimony shall have been taken by deposition, or before a circuit court commissioner, either party shall be entitled to make and settle' a case, setting forth in substance all the evidence taken or read at the hearing, following as far as practicable the making of cases for review at law, before the judge who tried the same, at such time and in such manner as is now provided by rule for the settlement of bills of exceptions in cases at law. * * * And such case so made and filed within three months after the entry of the final order or decree therein shall be deemed and held to be the evidence therein for all purposes of review on appeal to the Supreme Court. And provided further, That the judge who tried such case, or any other circuit judge holding such court, may grant an extension of the time for making and filing such case for a period not exceeding six months from and after the date of the entry of such decree or final order.”

Then follows a further provision authorizing the circuit judge on special motion and due cause shown * * * to grant an extension of the time for making and filing such case for a period not exceeding one year.”

Appellee’s contention that Circuit Court Rule No. 47 fixes the time for settling a case upon appeal is based upon the language of that part of the statute first above quoted. If this contention is correct,-if the time prescribed in Circuit Court Rule No. 47 is the time in which a case for appeal in chancery must be settled, 20 days, and 20 days only, is allowed, and this time may be extended without cause shown 60 days, and no more. But the statute in clear and in express terms grants three months in which to make and file said case. It also gives the circuit judge authority to extend said time for a period not exceeding six months, and this authority it is clear may be exercised without cause being shown and without notice; for it is expressly provided that upon notice and cause shown the time may be extended for a period not exceeding one year. The construction contended for by appellee would therefore nullify the express provisions of the statute, and cannot be adopted. What did the legislature mean by ‘the language of the statute first above quoted, that in preparing the case made the party should follow “ as far as practicable the making of cases for review at law * * * at such time and in such manner as is now provided by rule for the settlement of bills of exceptions in cases at law ? ” This question is not so easily answered; but this is obvious — and this disposes of appellee’s contention — that the language must receive a construction in harmony with the • other provisions of the statute which give three months to settle the case and give authority to the circuit judge to extend this time to six months. It is to be suggested that the first portion of the statute — the portion upon which appellee relies — relates to the manner of preparing the case made and the method of presenting it to the judge, and it seems quite probable that the reference therein to time relates to the time of presenting said case to the circuit judge. A construction according to this suggestion would give effect to the words “at such time.” It would require the proposed case to be presented to the trial judge at the time specified in a notice, which, together with a copy of said proposed case, was served upon the opposing party “at least four days before the time for such settlement.” 1 See Circuit Court Rule No. 47, subd. /.

Appellee relies upon other grounds. They are not meritorious, and do not demand discussion.

The motion to dismiss is denied.

McAlvay, C. J., and Grant, Blair, Montgomery, Ostrander, Hooker, and Moore, dJ., concurred.


author: Grant, J.

text:
    DRAKE COAL CO. v. CROZE.
    Sales — Action for Price — Contract—Burden of Proof.
    Where, in an action on the common counts for goods sold and delivered, defendant gives notice of recoupment, alleging that the goods were delivered under an agreement that plaintiff was to deliver .a larger quantity, which he did not do, the issue to be tried is: What was the contract ? and the onus of proving his contract is upon the plaintiff.
    Error to Houghton; Streeter, J.
    Submitted June 4, 1907.
    (Docket No. 3.)
    Decided July 1, 1907.
    Assumpsit by the Drake Coal Company against Joseph Croze for goods sold and delivered. There was judgment for plaintiff, and defendant brings error.
    Reversed.-
    Plaintiff brought suit to recover the price of a cargo of coal sold and delivered by it to the defendant. The declaration was on the common counts in assumpsit for goods sold and delivered. Defendant with his plea of the general issue gave notice of recoupment, alleging that the coal was delivered under an agreement that the plaintiff was to deliver not less than 4,000 tons of coal during the season of 1902.- Plaintiff proved the delivery, receipt, and the price. These the defendant apparently admitted. The defendant gave evidence that the coal delivered was received as a part of a contract as set forth in his plea. The court instructed the jury that the burden of proof was upon the defendant to sustain his version of the contract, and that presents the sole question in the case.

      Ohadbourne & Bees, for appellant.

      Shelden & Legris, for appellee.
   Grant, J.

(after stating the facts). There was but one contract made between the parties. The coal was delivered under that contract. If the contract included one cargo, the plaintiff was entitled to recover. If the contract included more, and the plaintiff Had failed to perform it, then the plaintiff was entitled to recover for the coal delivered less what damages the defendant had sustained by reason of the plaintiff’s failure to perform. The defendant did not set up a claim in avoidance of an admitted contract. On the contrary, he denied that any such contract, as the plaintiff claims, was made. The sole issue to be tried was: What was the contract ? The onus was clearly upon the plaintiff. Berringer v. Iron Co., 41 Mich. 305; Homire v. Rodgers, 74 Iowa, 395. Cases like Dillon v. Pinch, 110 Mich. 149, have no application to the facts of this case. There the defendant had received, as agent of the plaintiff, the amount of a policy of insurance. The suit was brought to recover the amount of the insurance received by him. He pleaded the general issue with notice of set-off, claiming an agreement that he was to receive $530 for making the collection. There the defendant introduced a contract in avoidance of the plaintiff’s claim.

Judgment reversed, and new trial ordered.

Carpenter, Blair, Montgomery, and Ostrander, JJ., concurred.