text:
    FIRST NATIONAL BANK OF BAY CITY v. VANDEN BROOKS.
    1. Licenses — Permissive User — Deeds—Incumbrances.
    Where a deed conveyed property “subject to present incumbrances,” a parol license and permissive use of said premises, held, not to amount to an incumbrance within the meaning of the deed.
    2. Joint Stock Companies — Distinct Entity.
    Since the law governing corporations is applicable to limited partnerships, a deed to a limited partnership was to a distinct entity.
    3. Licenses — Parol License — Revocation by Deed.
    The rule that a deed revokes a parol license, held, to apply to a deed to a limited partnership, although the grantor was an officer of the grantee.
    Appeal from Bay; Davis, J., presiding.
    Submitted
    October 24, 1918.
    (Docket No. 6.)
    Decided December 27, 1918.
    Reargued February 7, 1919.
    Former opinion affirmed May 29, 1919.
    Bill by the First National Bank of Bay City against John C. Vanden Brooks and others to quiet title to land. Defendant Vanden Brooks filed a cross-bill claiming title by adverse possession and prescription. From a decree for plaintiff, defendant Vanden Brooks appeals.
    Reversed, and decree entered for appellant.

      Edward S. Clark, for plaintiff.

      Cowmans & Gaffney, for appellant.
   On Rehearing.

Stone, J.

In the opinion herein (204 Mich. 164, 178) we said:

_ “Conceding, as we do, the correctness of the position of the plaintiff as to the parol license, and permissive use of the property in the first instance, we are constrained to hold that the deed of the premises by Warren in 1891 revoked that license and permissive use, and that the use of the defendant of the stairway and spaces above since that time has been of such a character as to give him a prescriptive right to the easement claimed.”

Upon the motion of the plaintiff a rehearing' was granted, and the case was referred to a circuit court commissioner of the county of Bay to take and report to this court,—

“such further testimony as may be produced by either party, relating to the deed or transfer and control of the property in question by Byron E. Warren, and the Bank Building Company, Limited, and in respect to the nature of defendant’s possession, after such conveyance by the said Byron E. Warren; and that such testimony, and any and all exhibits offered, be printed by the plaintiff, as a supplemental record in said case.”

Such testimony is before us in the form of a supplemental record and the case has been reargued by counsel. It now appears that the premises were deeded by Byron E. Warren and wife on January 8, 1891, by which deed they “convey and warrant” to the Bank Building Company, Limited, described as a “corporation duly formed and existing under the laws of Michigan,” the premises in question. That deed contains this clause: “This conveyance is made subject to present incumbrances on said property.” There was one recorded incumbrance, viz., a mortgage of $12,000.

It appears undisputed that the Bank Building Company, Limited, was in fact a partnership association limited, under our statute, which had been formed on January 7, 1891, and its articles of association were duly recorded on the 9th day of January, 1891. By its articles, the capital stock consisted of 250 shares of $100 each. William O. Lewis, Byron E. Warren and Stuart B. Warren were the first managers. Byron E. Warren was first chairman and William O. Lewis was secretary and treasurer.

The subscribers to the stock were as follows:

Byron E. Warren....'.......................120 shares
Stuart B. Warren........................... 50 shares
Jennie E. Warren........................... 70 shares
William H. Crahh........................... 5 shares
William O. Lewis..........................'. 5 shares

Stuart B. Warren was the son of Byron E. Warren, and Jennie E. was the wife of the latter. William O. Lewis was his son-in-law and clerk, and William H. Crabb was his clerk. It appeared that none of these persons paid anything for their stock except Mrs. Warren, who exchanged other stock for it. Mr. Warren’s object in organizing the company in 1891 was to enable him to use the stock to secure his obligations as indorser on the paper of the Warren-Lewis Lumber Co. After the company was organized Mr. Warren caused a part of its stock to be assigned to various creditors, but retained control of the majority interest which he pledged with the Commercial Bank, the certificates being assigned in blank. In 1896 the bank foreclosed and sold this stock. In the supplemental record Byron E. Warren testified, on direct examination, as follows:

“Q. Mr. Warren, after your deed to the Bank Building Company in 1891, did you continue in control of the property, and if so, how long about?
“A. Just about four or five years.
“Q. How did you lose control, how did you happen to lose control?
“A. By the sale of the stock.
“Q. To whom?
'“A. Well, it was sold by the Commercial Bank, I don’t know that they came in possession of it — I don’t know about that right away or not, or whether it was bid in, I wasn’t present when the property was sold, and stock.
“Q. Under what sort of a proceeding was it sold, as foreclosure of collateral or something of the kind?
“A. Yes, sir, foreclosure of collateral, foreclosure of notes.
“Q. That is, you had debts with the Commercial Bank secured by this stock, and they foreclosed and. took the stock.
“A. Yes, in part, to the extent of $13,000, the rest, the other stock had been already delivered to other-people, in payment of debts. * * *
“Q. Now, between the time you conveyed to the Bank Building Company, and the time when you lost control through foreclosure of the stock held by the Commercial Bank, and during which time you say you were managing the property, describe your relations with Mr. Andreas Vanden Brooks, especially with reference to this front stairway running down to Center avenue, and especially with reference to the question as to whether the use of that stairway by your tenants and Mr. Vanden Brooks’ tenants was by mutual consent or otherwise?
“A. It was by mutual consent, I didn’t have no written contract.
“Q. Can you describe any more fully the arrangement between you, was it verbal, or written?
“A. It was-verbal arrangements, I had no written contract relating to that stairway.”

On cross-examination as follows:

“Q. This is a fact, isn't it, Mr. Warren, that your best recollection now is that not later than 1896 you ceased all connection with this corporation, and with that building in question?
“A. Yes, that is my best recollection, just about that time
“Q. That would not be later than 1896?
“A. 1896 yes, no — yes, that is about right.
“Q. You testified before it was 1893 or 1894?
“A. Yes.
“Q. And today you say it was four or five years later?
“A. Not later than 1896.
“Q. So that taking your testimony this morning ’it would be not later than 1896?
“A. Yes, that is right, that is my best recollection.”

It may be said that this date was corroborated by the documentary evidence. It will be noted that this was 19 years before the bill of complaint was filed, which was February 26, 1915.

Charles C. Whitney, a director of the Commercial Bank and chairman of the Bank Building Company from 1896 to its dissolution in 1912, testified as to impressions and understandings gained by him from discussions on the board “from time to time” as to the nature of the use of the stairway. No definite time or conversation was. stated by this witness:

Henry W. Simms, a janitor, testified to certain general conversations with Andreas Vanden Brooks with reference to the stairway. All of this testimony has been examined with care. It is not very persuasive in its character.

Plaintiff’s theory on rehearing is as follows:

(1) That the rule of revocation by conveyance does not apply, because of the clause in the deed excepting “present incumbrances.”

(2) That the rule does not apply because the grantee named in the conveyance was a corporation controlled and managed by the grantor.

(8) That even if the rule of revocation by conveyance does apply, there is clear, affirmative evidence of the existence of a permissive arrangement after the conveyance, which prevented the acquisition of a prescriptive easement thereafter, even if the original license had been automatically revoked.

1. The plaintiff’s original position, as stated in its counsel’s brief, was, that the arrangement between Warren and Vanden Brooks created a. mutual, verbal revocable license. That such a license, revocable at pleasure, could amount to an interest in lands, and be an incumbrance, is a contradiction in terms, and wholly inconsistent with plaintiff’s former position in the case. It was not such an easement as is spoken of in the authorities cited by counsel. The easements there referred to were easements created by deed or covenant, and were of record. We do not think that the parol license and permissive use of the property here shown amounted to an incumbrance.

2. We have frequently held that the law governing corporations is applicable to limited partnerships. The deed then was to a distinct entity. To hold that the deed from Warren to the Bank Building Company, Limited, was not a conveyance as defined in the authorities discussed in our original opinion, would require us to hold that a corporation is not a separate and distinct entity from the persons forming or creating it. Counsel cites no authority in support of his theory, and we cannot agree with him.

3. Whatever may be said relating to the fact that Mr. Warren acted as an officer of this corporation for a time, there can now be no question that his connection with the bank ceased’ entirely in 1896, and it then became a question of fact as to the character of the possession of the stairway and the spaces above it, subsequent to, say, August 8, 1896.

We quoted at length the testimony of the defendant showing the adverse character of the possession, in our opinion. Has this testimony been overcome by that of the witnesses Whitney and Simms ? We think not. Such testimony is too vague and indefinite as to time, place and circumstance to have that effect.Such testimony, if relating to events prior to 1900, would still leave time for a prescriptive right to mature, prior to the filing of the bill of complaint in 1915.

Counsel for plaintiff calls attention to the age of defendant Vanden Brooks. He was 33 years of age when he testified in 1916. He stated that he could remember the condition of this property for 25 years. Born in 1883, he would be 8 years old in 1891, and 17 years old in 1900. There is nothing improbable in this testimony.

We must hold that the new testimony has not, in our opinion, sufficient probative value to warrant us in disturbing the rule which we applied in our former opinion. We must adhere to that opinion, reversing the decree below. The plaintiff may have 30 days in which to make the election referred to in the former opinion. (See 204 Mich. 164.) If such election is not exercised the bill of complaint will be dismissed. Defendant Vanden Brooks will recover his costs to be taxed.

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


source: Caselaw Access Project

author: Stone, J.

license: Public Domain

text:
    PEOPLE v. JACKZO.
    1. Criminal Law — Homicide—Continuance—Discretion of Court.
    In a prosecution for homicide, the denying a motion for a continuance, held, not to amount to abuse of discretion.
    2. Same — Corpus Delicti — Order of Proof — Rule.
    Testimony hy the first witness as to a statement of the defendant that an Indian had hilled deceased, and also as to witness’ examination of the body and its condition, showing acts of violence, held, to comply with the rule requiring the showing of the corpus delicti in a homicide case before the admission of other testimony; it not being necessary to show the finding of the dead body and its condition by medical testimony.
    3. Same.
    Although, in a prosecution for homicide, the death and its character should first be shown, there are exceptions where the same set of facts, in cases of circumstantial evidence, tend to connect the defendant with the commission of the crime, and also at the same time to prove the corpus delicti.

      4. Same — Admissions—Evidence—Admissibility.
    A voluntary statement by defendant that “I took a stick to hit Liberty (deceased) with, and he says, ‘Don’t hit me,’ and I threw the stick in the brush,” held, admissible.
    5. Same — Trial—Instructions—Requests.
    An instruction by the court as to the weight to be given to statements or admissions of accused, held, not erroneous, in the absence, of request for fuller instructions upon the subject.
    6. Same — Dangerous Weapon — Question for Jury.
    The question as to whether a maple stick 7 feet 1% inches long, with a hook 1 foot and 10 inches long, and being about 6 inches in circumference at the hook end, was a dangerous weapon, or one that was likely to kill or maim, was properly submitted to the jury as a question of fact.
    .7. Same — Venue—Proof.
    Where there was no testimony showing or intimating in what township, county, or State, the crime was. committed, held, that the people utterly failed to prove the venue.
    8. Same — Assignments of Error — Questions Renewable — Juris- ■ DICTION.
    Where the certificate of the trial judge to the bill of exceptions shows that it was accompanied by the assignments of error, and the court certifies that all the testimony introduced in the case that is necessary to present the questions of law raised by the bill of exceptions and assignments of error is there embraced, an assignment that the people failed to prove the venue raised the question of ,the jurisdiction of. the court.
    9. Same — Venue—Circuit Courts — Jurisdiction.
    The jurisdiction of the circuit court of a county is restricted to the trial of persons charged with the commission of offenses in that county, except in case of change of venue.
    10. Same — Unincorporated Village — Judicial Notice.
    The court will not take judicial notice of the existence of an unincorporated hamlet or settlement.
    11. Same — Homicide—Venue—Proof.
    A conviction and sentence for homicide cannot be sustained where the venue was not proved by competent evidence beyond a reasonable doubt.

      Error to Baraga; O’Brien, J.
    Submitted April 18, 1919.
    (Docket No. 118.)
    Decided May 29, 1919.
    Jess Jackzo was cpnvicted of murder in the first degree, and sentenced to imprisonment for life in the State prison at Marquette.
    Reversed.

      Joseph J. O’Connor (B. H. T. Burritt, of counsel), for appellant.

      Alex. J. Groesbeck, Attorney General, Leland W. Carr, Assistant Attorney General, and Hubert A. Brennan, Prosecuting Attorney, for the people.

      On the question of proof of corpus delicti in homicide, see note in 68 L. R. A. 33.

   Stone, J.

The defendant was charged in the information with having, on December 25, 1917, killed and murdered one William Liberty, at the township of Spurr, in the county of Baraga, and State of Michigan. Upon the trial, commenced on January 15, 1918, he was convicted of the crime of murder in the first degree. He was sentenced and is now serving a life sentence in the Marquette prison. He has sued out a writ of error and seeks to obtain a new trial because, of certain alleged errors upon the trial.

The defendant and the deceased, the former a teamster, were both employed in a logging camp located about one mile and a half south of Three Lakes, which camp was operated by the Piqua Handle Company. In this camp there were employed upwards of SO men. A number of the men in the camp, including the defendant and the deceased, went to Michigamme on the afternoon of December 24, 1917, where'they indulged in drinking intoxicating liquors, and where they remained at a hotel all night, returning to Three Lakes on Christmas morning. They were met at or near the station at this little hamlet by one George Mathews, who was the foreman of the camp. The men started to walk to the logging camp, the deceased and the defendant being in the rear, and it is undisputed that the deceased and the defendant stopped at or near a bridge over a stream some little distance from the logging camp. The others of the party preceded these two men into the camp. The last seen of Liberty, the deceased, alive, was when in the company of the defendant. About an hour later the defendant came into the logging camp. He was asked by the foreman where Liberty was, and at first did not respond, but upon being asked a second time replied, “An Indian hit me, and killed Liberty.” But little attention was paid to this at first, but a short time thereafter another man came into camp and reported that he had found the body of a man, with his face covered with blood, lying partly in the road close to the bridge.

The foreman and other men at once went to the place described and there' found the dead body of Liberty. The place was examined for tracks in the snow, and there seemed to be no tracks leading away from the road, — all leading towards the camp. The defendant was searched but nothing was found upon his person but a knife; and very soon thereafter the foreman telephoned the sheriff, who came out to the place during the afternoon. When the body of Liberty was found there was also discovered what was termed a “water stick,” which the evidence showed had been cut and prepared by the defendant, and used in the drawing of water with a pail out of the brook ‘in the watering of teams. This was a maple stick, and was found lying about 12 feet from where the dead body was discovered; and it is undisputed in the testimony as being 7 feet, 1% inches long, with a hook one foot and 10 inches long, and being some 6 inches in circumference at the hook end. There were blood and snow upon this stick.

The foreman of the camp took the defendant out to the barn to talk with him and to find out whether he knew anything about Liberty’s death. The foreman also asked two or three other persons to go into the barn and secrete themselves, where they could hear the conversation. The foreman and the defendant first talked about the horses,' which the defendant had the care of, and the foreman then directed his attention to the matter of the dead man, and it was in testimony that the defendant finally said: “I took a stick to hit Liberty with, and he says, ‘Don’t hit me,’ and I threw the stick in the brush.”

There was testimony tending to show that there had been a good deal of heavy drinking of intoxicating liquors in the camp shortly before the men went to Michigamme, and that when they returned they appeared to have been drinking. There was also evidence tending to show that the defendant and the deceased had quarreled, and had not been on friendly terms prior to their going to Michigamme, and that some threats of injury to Liberty had been made by the defendant.

The information was filed at the opening of the January term, on January 7, 1918, and a motion for the continuance of the case over the term was made, supported by the affidavits of the defendant, his uncle, and his counsel. These affidavits did not disclose the names of any witnesses but asked for time in which to prepare for the trial, and to examine the premises and persons at and about, the camp. In the affidavit of defendant’s counsel it was stated that defendant was charged with committing the crime of murder in a place called Three Lakes, which “is twenty or more miles from L’Anse,” the purpose evidently being to show that some time would be necessary to go to the place to make the necessary éxamination. This motion for a continuance was denied, but the defendant was granted one week’s time to prepare for trial. This motion for a continuance was renewed on January 15th,' the day the trial began, and was again denied.

Upon the opening of the testimony, when the first witness was upon the stand, defendant’s counsel objected to any testimony leading up to the death of Liberty until the corpus delicti had been proven, it appearing that the physician who had examined the body was. absent. The court overruled the objection and the testimony proceeded. It appears, however, very early-in the testimony of the first witness, being-the foreman, that he Testified to the statement made by the defendant when he came into camp, that an Indian had killed Liberty; and that testimony is immediately followed by the testimony relating to the report which came into camp and of the finding of the dead body of Liberty on the road, the witness testifying as follows:

“I went back to where Liberty was, and found him lying beside the road; his head and forehead looked as if it was caved in and his face caved in. He was. lying on his back. I examined the premises around there. I went to the phone and called the sheriff, came back and' found the track of a pair of overshoes by the body, traced it to the bridge where they had cut a hole in the water,”

—describing the conditions at and about the body and the finding of the pole, and the making of certain measurements, of shoe tracks, and comparing them with overshoes worn by defendant.

Objection was also made to the testimony of the foreman and other witnesses with reference to the statement made by the defendant in the barn, and a somewhat similar statement made to the sheriff after the arrest.

In the course of a very lengthy and full charge, the court in charging the jury used the following language : '

"I charge you that the wilful beating, wounding and ill-treating of one in a manner dangerous to life, with a weapon, without justification or excuse, under circumstances that do not reduce the homicide to manslaughter, is evidence of malice aforethought, so as to constitute the killing murder.”

Also the following:

“I charge you, if you find from the evidence beyond a reasonable doubt, that the respondent Jess Jackzo, beat, bruised, wounded and ill-treated the deceased, William Liberty, with the weapon in question, without justification or excuse, and without such provocation or circumstance as would suffice to reduce the offense to manslaughter, and without such deliberation and premeditation as would be characteristic of murder in the first degree, then your verdict should be murder in the second degree.”

The case was submitted to this court upon briefs, and defendant’s counsel state that the errors relied upon and the questions involved are the following:

(1) The denial of defendant’s motion for a continuance.

(2) Overruling defendant’s objection to any testimony leading up to the death of Liberty, until the corpus delicti was proved.

(3) Overruling defendant’s objection to the testimony of Mathews and others as to the purported confession by defendant.

(4) That the court erred in instructing the jury as above stated.

(5) That there was not sufficient evidence to support the verdict.

(6) That the people utterly failed to prove the venue.

(7) That .the court did not have jurisdiction to enter judgment on the verdict of the jury.

1. We have examined the motion, for a continuance and the affidavits upon which the same is founded, together with the authorities cited by defendant’s counsel, and are of the opinion that there was no reversible error in the denial of the motion for a continuance. The matter rested in the sound discretion of the trial judge, and we do not find there was any abuse of such discretion. People v. Boyd, 151 Mich. 577.

2. Did the court err in its ruling with reference to the necessity of first proving the corpus delicti? We recognize the rule that the death and its character should first be shown, as stated in People v. Hall, 48 Mich. 485 (42 Am. Rep. 477). See, also, People v. Swetland, 77 Mich. 53, People v. Ranney, 153 Mich.. 293 (19 L. R. A. [N. S.] 443), and People v. Kimbrough, 193 Mich. 330. We have called attention to the early testimony in the case relative to the statement of- the defendant that an Indian had killed Liberty, and also the testimony of Mathews referring to the examination of the body and its condition. We think that this rule requiring the showing of the corpus delicti in a homicide case, before the admission of other testimony, is a wise one that should be observed in the trial of such cases. We do not understand that it is necessary, however, to show the finding of the dead body, and its condition, by medical testimony; and we think that the rule laid down heretofore by us was substantially complied with in this case in the evidence of the finding of the dead body, and the appearance of the head and face of the deceased, showing acts of violence. There was later ample medical testimony. We think, however, that trial courts cannot be too particular in following the wholesome general rule that in such cases it is necessary to prove the corpus delicti first. That there are exceptions where the same set of facts, in cases of circumstantial evidence, tend to connect the defendant with the commission of the crime, and also at the same time to prove the corpus delicti has been held, and the rule has been somewhat relaxed in such cases.

• 3. We do not think the court erred in overruling defendant’s objection to the testimony of Mathews and others as to the statement of the defendant. It appears to have been a voluntary statement and admissible. The rule is well stated in the recent case of People v. Prestidge, 182 Mich. 80. We have examined the testimony carefully, and are of the opinion that this question was properly submitted to the jury. In that portion of the court’s charge referring to' this subject it used the following language:

“But in passing upon the weight to be given to statements or admissions of that kind, you should exercise a reasonable caution, taking into consideration the fact that sometimes statements or conversations are not correctly reported or may be misapprehended, or that the circumstances and conditions surrounding a person at the time he makes a statement • may be such as to weaken the effect that ought to be given to his statement. But, however, you have heard the evidence in regard to the statements. You have a right to consider them in connection with all the other facts and circumstances in the case, and give them such weight as in your judgment they are fairly entitled to.”

We think the case is readily distinguished from People v. McClintic, 193 Mich. 589 (L. R. A. 1917C, 52), and People v. Brockett, 195 Mich. 169. Had counsel desired fuller instruction upon this subject they should have requested the same. We find no error in this branch of the case.

4. Counsel have discussed the fourth and fifth questions relating to the charge together, and we will so consider them. As we have already said, the charge is a very lengthy and full one. It defined the crimes of murder and manslaughter, and pointed out the distinction between murder of the first and second degrees, in language which substantially has been used by this court. People v. Potter, 5 Mich. 1, 8 (71 Am. Dec. 763); People v. Wolf, 95 Mich. 625.

There was evidence tending to show that the homicide was committed with a lethal weapon, in an unequivocal manner. It cannot be said, as matter of law, that the weapon claimed to have been used in this case was not a dangerous weapon, or one that was not likely to kill or maim. That matter was in fact submitted to the jury by the trial judge; and, as this court said in Wellar v. People, 30 Mich. 16, it was a question for the jury; and it has been held that the question whether a particular weapon is a deadly or dangerous one is one of fact for the jury. We find no error in this branch of the case.

5. The sixth and seventh questions are discussed by counsel together, and raise, in our opinion, the only meritorious question in the case. No testimony was offered on the part of the defendant. The people utterly failed to prove the venue. An examination of the record shows conclusively that there was not one word of testimony showing, or intimating in what township, county, or State even, the crime was committed. The name “Three Lakes” is mentioned by several witnesses, but there was no testimony to show whether the name of Three Lakes was the name of a village, incorporated or unincorporated, or in what county it was located. It is urged by the people in their brief that it can be gathered inferentially that the crime was committed in Baraga county. We have carefully examined the record and are unable to find any facts that would warrant the jury in so finding. Reference is made to the affidavit of defendant’s counsel in which he states that Three Lakes is 20 or more miles from L’Anse. If we could consider that affidavit, it should be borne in mind that “20 or more miles from L’Anse” is a very indefinite statement. Twenty or more miles from L’Anse would take one into Marquette county. The certificate of the trial judge to the bill of exceptions shows that it was accompanied by the assignments of error. The 12th assignment of error is that the people failed to prove the venue, and the court certifies that all the testimony-introduced in the case that is necessary to present the questions of law raised by this bill of exceptions and assignments of error is there embraced.

We are constrained to hold that the instant case is controlled by the cases of People v. Ayers, 182 Mich. 246, and People v. Warner, 201 Mich. 547, 555. The question is distinctly raised by the assignment of error. As we said in the last case cited, so we say here, an examination of this record discloses that it is entirely barren of any evidence that the crime had been committed in Baraga county, the county where the trial was had. As we pointed out in that case, so we say here, that the question is one affecting the jurisdiction of the court in order that the trial may be a bar to a further prosecution in another jurisdiction. The jurisdiction of the trial court is restricted to- the trial of persons charged with the commission of offenses in that county, except in case of change of venue. We think it is our duty to follow the rule laid down in the last cited case. Neither Michigamme nor Three Lakes is an incorporated village, nor is either of them the name of any township or any other sort of municipality in that county. We cannot take judicial notice of the existence of Three Lakes. No one knows where as a hamlet the settlement of Three Lakes begins or ends. Under these authorities, and because the question raised is jurisdictional, we feel constrained to set aside the conviction and sentence.

The case is therefore reversed and a new trial granted, and the defendant will be remanded to the sheriff of Baraga county to be dealt with as the law directs.

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


text:
    PRESTON v. AUSTIN.
    1. Negligence — Trespassers—Duty to Keep Lookout.
    In an action for personal injuries by a five-year-old boy, evidence that tbe boy, without being invited, came into defendant’s yard while he was preparing his mowing mar chine to cut grass, that defendant saw the boy go around the house to the back door, but did not see him again until he was injured by the mowing machine in the tall grass which defendant was cutting, held, insufficient to impose a duty upon defendant to keep a lookout for the boy the neglect of which would constitute negligence rendering defendant liable.
    2. Same — Active Negligence — When Applicable.
    Before the principle of active negligence can apply, some duty must rest upon the defendant which is violated by his conduct or act.
    Authorities passing on the question of duty of property owner to trespassing child, are collated in a note in 32 L. R. A. (N. S.) 559.
    Error to Kent; McDonald, J.
    Submitted April 24, 1919.
    (Docket No. 58.)
    Decided May 29, 1919.
    Case by Boyd Preston, an infant, by his next friend, against John Austin for personal injuries. Judgment for defendant on a directed verdict. Plaintiff brings error.
    Affirmed.

      Hatch, McAllister & Raymond, for appellant.

      Lombard & Hext, for appellee.
   Stone, J.

The salient facts in this case are not in dispute. The action was brought to recover damages for injuries which the plaintiff sustained in consequence of the alleged negligence of the defendant in running a mowing machine against the plaintiff, and cutting off his left foot and injuring his right leg on July 7, 1916, the plaintiff, at that time, being five years of age. The plaintiff resided with his parents, on a farm in Chester township, Ottawa county, opposite the farm upon which the defendant resided, the plaintiff living on the north side of an east and west road, and the defendant living on the south side. On the day of the accident, and about 10 o’clock in the forenoon, the plaintiff went across the road from his home to the farm of defendant, where he met the defendant who was then engaged in the yard in front of the house, fixing a mowing machine which he was about to operate in cutting the grass. The plaintiff sat down by a tree while the defendant was putting the knives in the mower, and some conversation took place between them there. This was in the northeast corner of the space in front of the house and under a large tree just west of the driveway. The whole space in front of the house was a dooryard and the grass was kept mowed, but the space west and north of the house, being about 200 feet east and west and 100 feet north and south, was grown up to timothy grass.

After the defendant was talking with the plaintiff in the front yard, defendant drove his machine over to the northwest corner of the house, while the plaintiff went to the mail box near the gate of his own volition, got the mail and took it around the east side of the house to the back door, on the south side of the house, to defendant’s sister. Defendant started to cut the grass around this circuit of about 200 feet by 100 feet, and on the second circuit while driving east about 100 feet east of the west fence and about 15 feet south of the highway, he ran into the plaintiff with the machine and cut off his left foot completely, and injured his right leg. The accident occurred about 11 o’clock in the forenoon, on a bright, clear, sunshiny day. There was no one present at the time of the accident except the plaintiff and the defendant.

The defendant was called for cross-examination under the statute, and was examined at great length in reference to all the facts and circumstances, and photographs of the premises showing the various locations, including the place where the injury occurred, were introduced in evidence. The defendant testified that he did not know the child was in the grass, and did not see him until the machine struck him. The-testimony of defendant is too lengthy to be inserted here, but we quote the following:

“Q. Now, were you paying any attention to where that little boy was up to the time this accident occurred, were you paying any attention to where he was?
“A. I didn’t see- him after he went into the house.
“Q. Well, did you pay any attention to him, to where he was?
“A. I see him when he went to the house.
“Q. Well, did you pay any more attention to him after that?
“A. I didn’t see him after that.
“Q. You didn't give him any thought did you?
“A. I didn’t see him- till the mower struck him.
“Q. Well, now, he didn’t go in the house, did he?
“A, He went to the door.
“Q. Well, did the boy go to. the house? Show us where the door is on the house.
“A. I couldn’t see it plain, there is a kitchen there.
“Q. Where is the kitchen door, is it around on the other side of the house?
“A. It is on the south side.
“Q. Did he go around to the kitchen door?
“A. Yes, sir.
“Q. He went around to the kitchen door. Well, the door that you come in and out of is right there in front isn’t it?
“A. Yes, the front door, but he went around to the kitchen door.
“Q. You saw him do that, didn’t you?
“A. Saw him before he went around the corner.
“Q. So that you expected him to come out, didn’t you?
“A. I wasn’t looking for him coming back.
“Q. Well, he wasn’t going in there to stay was he?
“A. Well, I didn’t know how long he was going to stay.
“Q. And you didn’t knowhow soon hé was coming out either did you?
’ “A. I didn’t know how soon he was coming out.
“Q. And you knew that when he went out he would go through that yard didn’t you?
“A. Yes, straight out to the road.
“Q. He would have to go through the yard wouldn’t he?
“A. Yes, the front yard. * * *
“Q. Now, the only excuse that you have for running into that little boy, with your mowing machine that day is the claim that the grass was deep, is that your only excuse?
“A. I didn’t see the boy.
“Q. Have you got any other reason?
“A. I didn’t see him, I didn’t know he was there.
“Q. That’s the only reason you have got, isn’t it? Is that the only reason you have got now?
“A. And the grass was tall.
“Q. Well, you gave us that, the grass was tall and you didn’t see him. Now have you got any other reason?
“A. No, sir.
“Q. Now, you didn’t pay any attention to whether he was there, or whether he wasn’t after you started away with your mower, did you? •
“A. I looked back and see him just before he went around the house.
“Q. What did you look back at him for?
“A. To see where he was.
“Q. Well, that was after you started in from the house wasn’t it to mow?
“A. Yes, sir.
“Q. Now, where were you? Just tell us where you were when you looked back and saw him going to the house.
“A. Why, I was right there by the corner, just where I started to mow.”

After the plaintiff’s testimony was all in, the court directed a verdict and judgment in favor of the defendant upon the ground that under the testimony there was no negligence shown, and that the question of whether the defendant was in the exercise of due care and caution was a question of law and not of fact, under the evidence. ’

The plaintiff has brought the case here by writ of error, and has assigned the following errors:

“That the court erred in refusing to submit the question of defendant’s negligence to the jury, and in directing a verdict of no cause of action, against the plaintiff and in favor of the defendant.”

The position of the plaintiff is well expressed in his counsel’s brief as follows:

“We contend that under all of the facts and circumstances presented in this case, it was a question for the jury to determine whether, if the defendant was in the exercise of ordinary care, he would have known of the presence of the plaintiff, and that he was bound to use ordinary care to prevent injuring plaintiff by his own active negligence”

—and the following cases are cited and quoted from: Schmidt v. Mining Co., 159 Mich. 308, 311; Verlinde v. Railroad Co., 165 Mich. 371, 376; and section 188 of Baldwin on Personal Injuries is cited.

Plaintiff’s counsel lay much stress upon the claim that the trial court wholly ignored the doctrine of active negligence of the defendant. The record discloses that the trial court held that under the evidence the law did not place upon the defendant the duty to keep a lookout for this plaintiff.

It is the claim of counsel for defendant that under the circumstances disclosed in this record, the defendant was under no legal obligation or duty to keep a lookout for this child in his hay field. It is said that when the plaintiff had, of his own accord, obtained the mail and had come through the gate and was on his way down to the house, the defendant had hitched on to the machine and was driving diagonally across the dooryard in front of the house to the corner, where he was going to start mowing; that when defendant reached that point he looked around and saw the plaintiff pass out of sight by the southeast corner of the house. This was the last the defendant saw of the boy until he was struck by the machine. It is true that after the plaintiff passed out of sight of the defendant by the east side of the house, he, the defendant, did not look for him again, and gave him no further thought.

It is urged by defendant’s counsel that the important points of the situation at the moment of the accident were that the boy had gone out of sight, around the east side of the house, with the mail at the time the defendant started to mow; that defendant did not again see plaintiff, or know of his presence in the grass that was being cut until the machine struck him; that it is not known whether the boy was standing, or sitting down in the grass; and that immediately before the accident the defendant was devoting his attention to his team, and was not looking in the direction where the plaintiff was located, and all thought of the boy had passed from the defendant’s mind. ;

In our opinion the case of Schmidt v. Mining Co., supra, is not controlling of the instant case. There a miner, injured in a negligent explosion, had applied for work to the defendant’s pit boss, who told him to return on a subsequent day, when he again went and made application to the defendant’s superintendent who referred him to the pit boss, whom he then attempted to find on defendant’s premises, and while waiting in the tipple to see the pit boss the explosion occurred; and it was held to be a question of fact for the jury whether an express or implied invitation to be on the premises might not be inferred from the conversation. Under those circumstances it was said that after the owner of the premises is aware of the presence of a trespasser or licensee, or if in the exercise of ordinary care he should know of his presence, it is his duty to use ordinary care to prevent injury to him arising from active negligence. In that case the defendant by its own conduct in requesting the plaintiff to return, and the other circumstances, had created a condition which demanded the exercise of care and attention on the part of the defendant to ascertain and know whether the plaintiff was present or not, and to exercise due care and caution not to injure him by its active negligence. The instant case is clearly distinguished from that case. In this case the defendant had in no way requested, invited or induced the plaintiff to come down into this uncut grass where he was hurt, and had created no obligation or duty on his part to anticipate, expect or keep a lookout for the plaintiff at that point, and we think it follows that if the defendant owed no duty to plaintiff to anticipate, or keep a lookout for him at the point where he was hurt, there can be no liability, as it is not con-' tended that the defendant had actual knowledge of the plaintiff’s presence.

In the Verlinde Case the presence of the plaintiff was actually known to the defendant. After knowledge of the presence of a trespasser or licensee, or that he is in danger, one must exercise ordinary care and prudence not to cause an injury by one’s own affirmative acts.

In our opinion the principle involved in the instant case is more like that in the cases of Hargreaves v. Deacon, 25 Mich. 1, and Ryan v. Towar, 128 Mich. 463 (55 L. R. A. 310, 92 Am. St. Rep. 481). See, also, Baldwin on Personal Injuries, §§ 192, 204. The last-named section contains this language:

“An owner of premises has no duty imposed upon him to guard against trespassers. To make the owner liable there must have been some negligence on his part, subsequent to the trespass,- that could have been avoided by the use of ordinary care, after knowledge of the trespasser’s presence” — citing, among other cases, Charlebois v. Railroad Co., 91 Mich. 59; Hargreaves v. Deacon, supra; Habina v. Electric Co., 150 Mich. 41 (13 L. R. A. [N. S.] 1126).

We think that before the principle of active negligence can apply, some duty must rest upon the defendant which is violated by his conduct or act. There is no claim that the defendant knew that the plaintiff was down in the grass. From whatever angle we view the case, it ultimately brings us back to the one question: Was there any duty resting on the defendant, under the facts shown in the record, to keep a lookout for this child? We are of the opinion that this ques-. tion should be answered in the negative.

The judgment below is affirmed.

Bird, C. J., and Ostrander, Moore, SteSre, Brooke, Fellows, and Kuhn, JJ., concurred.


author: Moore, J.

text:
    MUNN v. MICHIGAN STATE TELEPHONE CO.
    Master and Servant — Personal Injuries — Accidental Injury— Negligence.
    In an action for personal injuries by an employee against his employer, evidence that as plaintiff and another employee were attempting to get into a wagon they accidentally bumped together and plaintiff fell and was injured, held, insufficient to establish negligence rendering defendant liable.

      Error to Kalamazoo; Collingwood, J., presiding.
    Submitted April 30, 1919.
    (Docket No. 88.)
    Decided May 29, 1919.
    Case by Bert J. Munn against the Michigan State Telephone Company for personal injuries. Judgment for plaintiff. Defendant brings error.
    Reversed, and no new trial ordered.

      Alfred J. Mills, for appellant.

      Claude S. Carney, for appellee.
   Moore, J.

On October 23,1912, about 30 days after the workmen’s compensation act had gone into effect, and before the defendant telephone company had elected to come under its provisions, the plaintiff was employed as a lineman by defendant. He with other employees left Battle Creek by interurban railway early on the morning of October 23d for Augusta, where an ordinary farm wagon and team of horses was hired for use in their work. About noon the team was unhitched and the men took dinner at a farm house. After dinner the team was rehitched to the wagon and the men were preparing to start to work. On either side of the wagon and between the wheels, there was a step with a. board across the top of it which was level with the bottom of the wagon box and about 30 inches from the ground. In getting into the wagon plaintiff was hurt. He spent part of the afternoon on a blanket laid upon the ground and claims he caught cold which later developed into tuberculosis. He recovered a substantial verdict and the case is brought here by writ of error.

After the opening statement of counsel for plaintiff a motion was made in behalf of defendant for a directed verdict which the court denied. At the conclusion of plaintiff’s case the motion was again presented and again denied. It was renewed at the close of the testimony and also denied. Counsel for defendant also presented certain requests to charge, all of which were denied except as covered by the general charge. After the verdict a motion was entered in behalf of defendant for judgment in its favor, notwithstanding the verdict, which motion was denied. A motion for a new trial was entered in behalf of defendant, which was denied. The court was requested to file reasons for the denial of defendant’s motion for a new trial, if denied. He did so and required plaintiff to consent to a reduction of $1,500 of the. verdict or submit to a new trial. The plaintiff filed a consent to remit $1,500 of the verdict.

Error is assigned as to each of the above mentioned acts as well as to the charge of the court as made. Each of these assignments is argued at length. As we think an answer to the question whether the judge should have directed a verdict must dispose of the case, we shall not further refer to the other assignments of error.

At this point it may be well to refer to the testimony which describes the accident. The testimony of the plaintiff was in part as follows:

“In the afternoon I had an accident. We were preparing to move to another station and getting in the wagon. We got our tools all loaded. Mr. Case and Mr. Bell had jumped into the front seat and I was getting in the right hand side and the driver got on the left hand side and I was standing on the step with my right foot, putting my left foot over the top, the box, and I was leaning over a little to balance in, when the driver jumped into me. I want to correct that, I was getting in on the left hand side of the wagon, looking towards the team, and the driver got in on the right hand side. He bumped his head against my shoulders and threw me backwards, and as I fell my ■foot went between the wagon and the wheel and my leg got between the two, I suppose; and the team started at the same time, and twisted my left leg, as I fell over backwards; my leg was drawn between the box and the wheel, my left leg, and ground and crushed it.”

We quote part of his cross-examination:

“I had gotten in wagons before and knew how to do it. I would have no difficulty in doing it under ordinary circumstances. I have done it quite often. I think I had done it on the afternoon of the day of the accident. * * * The foreman and one of the helpers got on to the seat of the wagon in front and I was attempting to get into the wagon on the left hand side. I was just stepping over the box, just going to step over the edge of the box into the wagon. I did not put my right leg over the box. I was standing with my left foot on the step. The step was right level with the bottom of the wagon. I stepped up' there with my left foot, my right foot I should say. When the head of the other man on the other side of the wagon struck my shoulder, I was standing upright leaning forward a little bit and raising my foot to put it over the box. I got up from the ground and was practically standing on this step SO inches from the ground. I was entirely clear of the ground and clear of the wheels and as he struck me, I tipped over backwards. Up to that time the team had stood there perfectly still. I don’t think it had moved at all. I did not fall clear of the wagon. I hung on the seat with my left hand, as long as I could. There was a front seat. I hung on the back of the front seat with my hand, back of the front seat and fell from there when the wagon caught my left leg. The front wheel caught it. * * * I was very friendly with all these men. There was no trouble, or ill feeling or anything of that kind among us. I haven’t any reason to think this man who was attempting to get into the wagon on the other side from me had any ill will or anything. We were good friends and good feeling between us.”

Mr. Scanlon was called as a witness on the part of the plaintiff. We quote from his testimony:

“At the time of the accident we were working in Augusta, I think in Calhoun county. On that day we were repairing the lines. I kept the tools to help the linemen out that way. On the day of the accident Mr. Case, Mr. Munn and Mr. John Bell were working in the crew on this job. It was right after dinner. We had just finished on one job and were just starting up the line a little bit and just four of us started to move. I went to jump on the wagon on the right hand side of the wagon. We .both jumped on the steps on the right hand side of the wagon. My head collided with his shoulder and upset him and he fell. I struck him with my head on the shoulder, we both jumped on at the same time. I jumped from the step into the wagon. He was not standing on the wheel but on the steps. There were steps on both sides of the wagon between the rear and front wheels. Neither one of us jumped into the other, but happened to collide when we were getting into the wagon at the same time. I struck him with my head on his shoulder and right arm. He lost his balance and went over the side of the wagon. I didn’t really push him over, but he lost his balance and went over. He didn’t lose his balance until after I struck him with my head. I looked at his leg when he limped around and we thought it was slight at first, we didn’t think it was as bad as it was.”

This is substantially all of the testimony as to the happening of the accident. It does not disclose actionable negligence on the part of the defendant, but does; disclose an accident that nobody could or did anticipate. See Sjogren v. Hall, 58 Mich. 274, Wickham v. Railway, 160 Mich. 277 (52 L. R. A. [N. S.] 1082, 136 Am. St. Rep. 436, Ann. Cas. 1913E, 1069), and Lydman v. De Haas, 185 Mich. 128. The judge should have directed a verdict for the defendant. .

The case is reversed, without a new trial, and with costs to the defendant.

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


text:
    KRANTZ v. DETROIT UNITED RAILWAY.
    1. Negligence — Personal Injuries — Street Railways.
    In an action for personal injuries, evidence that the motorman of a street car noticed a man ahead of him driving a horse close to the track, that he sounded the gong and slowed up in passing the horse and driver, that after the driver passed an obstructing automobile, he turned the horse toward the curb, which threw the flank of the horse toward the car and the car struck him, shoving him on the icy pavement onto the sidewalk and injuring plaintiff, a pedestrian, held, not to show actionable negligence on the part of the motorman or the driver of the horse.
    2. Same — Proximate Cause.

      Held, that the guiding of the horse toward the curb was not the proximate cause of the injury.
    3. Same — Accidental Injuries — Right to Recover.
    Damages cannot be recovered for purely accidental injuries; if there is no negligence on the part of the defendant, there can be no recovery, no matter how free from negligence the plaintiff may be.
    Error to Wayne; Webster (Clyde I.), J.
    Submitted April 11, 1919.
    (Docket No. 34.)
    Decided May 29, 1919.
    Case by Rose Krantz against the Detroit United Railway and the Michigan Builders’ Supply Company for personal injuries. Judgment for defendant railway, on a directed verdict, and non obstante veredicto the supply company. Plaintiff brings error.
    Affirmed.

      Dohany & Dohany, for appellant.

      \ Corliss, Leete & Moody and A. B. Hall, for appellee railway.

      Keena, Lightner, Oxtoby & Hanley, for appellee supply company.
    Authorities discussing the question of injuries received by street car collisions with vehicles and horses are collated in a note in 25 L. R. A. 508.
   Stone, J.

This is an action for damages for personal injuries received by the plaintiff. On the 5th day of January, 1914, at about the hour of 5 o’clock p. m., the plaintiff, then a young woman 18 years of age, was walking west along the south side of Forest avenue east (there being double street car tracks in the center of the avenue), between Dequindre street and St. Aubin avenue, when she was injured by reason of a horse which was being driven by an employee of the defendant Michigan Builders’ Supply Company, and owned by it, being hit by a street car operated by the servants of the defendant Detroit United Railway, thereby causing the horse to slip or slide upon the ice against and upon the plaintiff, who was at the time on the sidewalk. The horse had been unhitched from its wagon, near Dequindre street, and was being driven to the barn, and the most convenient way to reach the barn was to go along the south side of Forest avenue. There was one, and some of the witnesses said two, automobiles parked between the curb and the south street car track about opposite the San Telmo cigar factory there situate. The driver of the horse, who was going in the same direction as the street car, turned toward the tracks to pass the parked automobiles, after looking backward and seeing the street car approaching and crossing the steam railroad tracks at Dequindre street, about 200 feet to the west. Just as the driver of the horse arrived at the front of the front automobile which was facing east, he being behind the horse — he testified that the following happened:

“Well, as I was turning the horse away from the side of the track, the car brushes by his hind hip and gave- him a little shove, and shoved him on his knees and he went east,”

—and the horse slid over the curb on the ice, and onto the sidewalk and injured the plaintiff.

At the conclusion of the evidence, the trial court, upon motion, directed a verdict in favor of the defendant Detroit United Railway, on the ground that there was no evidence of any negligence on its part, but submitted the case to the jury as against the defendant the Michigan Builders’ Supply Company, reserving the right to direct a judgment non obstante veredicto. The jury returned a verdict for plaintiff in the sum of $500, which the trial court later set aside and ordered judgment for both defendants, which was duly entered.

The plaintiff has brought error, and she bases her two assignments of error upon the action of the trial court, first, in directing a verdict for the defendant Detroit United Railway; and second, in setting aside the verdict for plaintiff, and entering judgment for defendant Michigan Builders’ Supply Company.

1. Invoking the rule that the most favorable construction that the testimony will admit of must be indulged in behalf of plaintiff, under such circumstances, plaintiff’s counsel urge that it was error for the court to direct a verdict in favor of the defendant Detroit United Railway. Disconnected parts of the testimony of. Robert Johnson, the driver of the horse, are referred to by counsel. All of the testimony has been read. Among other things he testified:

“I was driving the horse without any wagon, just with the lines. * * * I drove along by the side of the track, south side. I was following the horse right behind with the lines. * * * The horse was never on the railroad track. When I started to turn, I started to turn the head of the horse toward the curb, just pulled his head towards the curb, and that threw his rump just a little towards the car. His head, I tried to pull him towards the curbstone.”

At the time of the accident the horse had got east of, and beyond, the automobiles. The witness had testified that when he first noticed the street car it was crossing Dequindre street. He further testified:

“As I was passing the automobiles, I looked back again to see the street car. It was gaining ground on me so, until I hurried my horse to get away. It was going faster than when it was crossing Dequindre street. I clucked him (meaning the horse) up, and slapped him a little with the line and hurried him up and said ‘Go on Billie,’ and I had turned in towards the curb,- or started to turn before the street car got to us, and it was the handhold on the front of the car that hit the horse. The street car went half a block after hitting the horse. I never lost the lines or the reins on the horse that day. The horse was east of the automobiles when the street car hit him. He was as far away from the automobiles as this table is long (indicating). Just before I got to the automobiles, I looked back and seen the car coming. As I was driving beside the automobiles, I looked back again, and saw the car coming at a faster rate. Then I tried to speed the horse up, to make him go by, and as the horse’s head got to the end of the automobile, I began to curve him to the south side of the track.”

John A. McGraw, the motorman in charge of the street car, was called by plaintiff for cross-examination, under the statute. Among other things he testified :

“I don’t remember what rate of speed I was traveling at the time. My best judgment would be, five or six miles per hour, I imagine when I passed the horse. That is much slower than my regular rate of speed. I was traveling so slowly because the horse was so near the track, was walking near the track, and I am always supposed to slow up when there is anything near the track, and that is why I slowed up my car. When traveling at five or six miles per hour I can stop my car very easily, within a short distance if the rail is not slick. I don’t remember the condition that the rails were in that night, in what distance I could stop my car at five or six miles an hour, 20 or 25 feet, I suppose. I saw the horse just after I had passed Dequindre street, and he and the man driving him were driving close to the track, something like four or five feet from the track. I slowed up because a horse is liable to walk on the track most any time, or be jerked on the track or something, so it is the rule of the company to slow up.
“Q. What speed had you attained after you passed Dequindre street, what is your best judgment?
“A. Well, probably ten miles per hour.
“Q. Then you slowed down from ten miles per hour to five miles per hour or thereabouts when you came up to the horse?
“A. Yes, sir.
“Q. And the horse was in full view of you all the time you were approaching?
“A. Yes, sir.”

This is the substance of the testimony upon which the plaintiff relies, tending to show negligence on the part of the defendant Detroit United Railway. It is undisputed that the street car made a full stop at Dequindre street. It will be noted that at no time was the horse upon the track, and it is doubtful whether the driver was upon the track at any time. McGraw also testified:

“Just as I was passing the horse the driver jerked the line next to the right hand side and hit the horse, and the horse did not walk away from the car but swung around until his hind part hit the car. I knew the car had hit him.”

This witness did not agree with Johnson that it was the front part of the car that hit the horse, but testified that it was some place behind the front door. It is true that the car did not stop until it reached St. Aubin avenue, but the motorman testified that he let the car drift to that point in order to get away from the place of collision. He said:

“I just drifted ahead so that I would be out of the way, that is all.”

Under the circumstances as they here appear, it is difficult to find any evidence of negligence on the part of the defendant Detroit United Railway. The car had the right to move ahead, as there was no obstruction on the track, and it would seem that the motorman exercised due caution, it appearing undisputed that he had rung the gong before coming up, in passing the horse. We think the trial court did not commit any error in directing a verdict for that defendant.

2. As tending to show negligence on the part of the defendant Michigan Builders’ Supply Company, counsel for plaintiff points out the following testimony of Thomas P'ioszak. This witness was a pedestrian upon the south side of Forest avenue, going east on the sidewalk; and the following is relied upon:

“The first thing I noticed that attracted my attention to the horse and driver, was the horse walking up when he was behind the automobile and the fellow was forcing the horse in between the automobile. I noticed him forcing the horse in — I saw him getting the horse in between the automobile and the street car track before that. He whaled the horse with the lines to make the horse pick up. I could not tell you if he jerked on either line, but I noticed he had hold of the line in each hand, and then he always hit the horse and forced him in between the car. And after he got in front of the automobile he steered towards the right and the hind part of the car hit the horse on the back and the horse slid on the ice, and the girl was right there. It was the haunches, the rear part of the horse that got hit. The front part of the car did not hit the horse. It was about three-quarters of the car past the horse already.
“Q. Now, what was it that turned the horse’s head around to the right and his rear to the left so that it hit the street car, who did that?
“A. Well, he was trying to get more out of the way of the street car after he passed the automobile.
“Q. And the horse was walking very close to the street car track, was he not?
“A. No, sir, he was walking right into the automobile.
“Q. And went right into it, did he?
“A. No. He steered him after the car was beating him out, he thought he had room there to pass by.
“Q. And he was traveling alongside of the automobile was he with the horse, when he reached the automobile ?
“A. Right toward the automobile. ' (Continuing.) But when he got to the automobile then he traveled beside it.
“Q. When he started to go beside the automobile» where was the car?
“A. It was coming right up even with him.
“Q. It was just coming even with him?
“A. Yes.
“Q. When he started to go past the automobile, is that right?
“A. No, even with the automobile.
“Q. Well, I asked you when he started to go by the automobile; in other words, when the head of the horse was just in line with the rear wheel of the automobile, where was the street car?
“A. Well, it was about five or ten feet behind him, and then he walked the length of the automobile; even with the rear wheel of the automobile as he was starting to pass it. I saw that horse walking alongside the automobile, and it was trying to turn toward the curb when the street car hit him. The street car was not slowing up before it hit him. It did not slow up at all.' After it passed the railroad crossing it did not slow up at all, it stopped on St. Aubin.
“Q. Where was the girl standing when she was hit, do you recall?
“A. Yes, she just stopped, just for about a second, not that long.
“Q. I know, but stopped where?
“A. Well, on the sidewalk, I could not tell you if it was on the sidewalk or the curb or what, because it is all covered with ice. The driver had hold of the lines on the horse all the time.”

This is the substance of the testimony referred to by plaintiff’s counsel as requiring the submission of the case to the jury, as against the defendant Michigan Builders’ Supply Company.

It will be observed that the witness Pioszak testified that the horse had passed the automobile, before his head had been turned by the act of Johnson in pulling upon the rein. The distance from the south track to the curb was about 11 feet. The horse appears to have been pushed by the collision with the street car in a southeasterly direction. There was so much ice there that the witnesses agreed that one could not tell where the curb was. It is manifest, from the undisputed testimony in the case, that the horse was never on the track itself, but was in the street far enough away from the car to allow it to pass; and the only reason why the horse was struck by the car was that the driver attempted to pull his horse out toward the south curb. By pulling on the right rein the horse’s head was turned to the south, and his flank, in turning about, struck the car. Was it actionable negligence for the driver of the horse to pull upon the right line to get the horse farther away from the street car track and the car? It seems to us that it was a natural, prudent thing for the driver to do, and that the hitting of the street car against the horse was an unexpected and unforeseen event, occurring without the will or design of the person whose mere act caused it. That the result was an unexpected, unusual, or undesigned occurrence cannot be doubted; in other words, that it was a mere accident, and cannot justly be said to be a negligent act on the part of the driver. The injury was the result of such an accident as no one would have been likely to foresee. The precise accident that occurred might never occur again. We think the plaintiff failed entirely to make out a case of negligence, and that the court below was right in entering a judgment for the said defendant.

It cannot be said that the defendant or its servant, in doing the natural act of guiding the horse to the right, was guilty of negligence, because of an accident that was not likely to happen. Damages cannot be recovered for purely accidental injuries. Sjogren v. Hall, 53 Mich. 274; Lewis v. Railway Co., 54 Mich. 55 (52 Am. Rep. 790); Munn v. Telephone Co., ante, 201.

If the evidence does not show any negligence on the part of the defendant, there can be no recovery, no matter how free from negligence the facts show the plaintiff to be. 20 R. C. L. p. 185.

The guiding of the horse to the right, under the circumstances, was not the proximate cause of the injury.

The judgment of the circuit court is affirmed.

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


author: Kuhn, J.

text:
    SCHILAWSKE v. DETROIT, JACKSON & CHICAGO RAILWAY CO.

      1. Appeal and Error — Judgment—Non Obstante Veredicto.
    In determining whether the court erred in entering judgment for defendant non obstante veredicto, the testimony must be taken in the light most favorable to the plaintiff’s case.
    2. Street Railways — Death—Crossing Accident — Contributory Negligence — Question eob Jury.
    In an action for the death of. plaintiff’s decedent who was .struck and killed by an interurban car oh the south track while crossing a city street, where there was evidence that the night was dark and stormy, with snow and sleet and a high wind blowing, that the tracks and pavement were covered with ice, that the car had no headlight burning and did not sound any gong or whistle, that it was traveling at the rate of 30 or 40 miles an hour, that it was not visible to witnesses until within 25 feet of decedent, that before crossing the north track decedent was seen to look both ways, but did not look again in either direction before crossing the south track, but appeared to be looking straight ahead, watching the pave-ment, it cannot be said that, under the special circumstances of this case, decedent was guilty of contributory negligence as a matter of law.

      On duty to look and listen .before crossing interurban electric railway on company’s own right of way, see notes in 15 L. R. A. (N. S.) 254, and 23 L. R. A. (N. S.) 1224.

      Error to Wayne; Hally, J.
    Submitted April 9, 1919.
    (Docket No. 8.)
    Decided May 29, 1919.
    Case by Richard F. Schilawske, administrator of the estate of August Schilawske, deceased, against the Detroit, Jackson & Chicago Railway Company and the Detroit United Railway for the negligent killing of plaintiff’s decedent. Judgment for defendant Detroit United Railway on a directed verdict, and non obstante veredicto the Detroit, Jackson & Chicago Railway Company. Plaintiff brings error.
    Reversed, and judgment entered on the vérdict.

      Benjamin & Betzoldt, for appellant.

      Frederic T. Harward, for appellees.
   Kuhn, J.

On February 1, 1915, at about 7:30 o’clock in the evening, plaintiff’s intestate, a man 62 years of age, was struck by an interurban car of the Detroit, Jackson & Chicago Railway Company at the intersection of Michigan avenue and Twenty-fourth street in the city of Detroit and received injuries which resulted in his death. Plaintiff, as administrator, brought this action under the survival act against the Detroit United Railway and the Detroit, Jackson & Chicago Railway Company and obtained a verdict against the latter company of $2,500. The trial judge, however, upon motion, entered a judgment non obstante veredicto in favor of the defendant. Whether or not the court erred in thus setting aside the verdict and entering judgment for the defendant is the sole question before us. In determining this question, the testimony must, in accordance with the well-established rule, be taken in the light most favorable to the plaintiff’s case. Thus viewed, there was evidence from which the jury might have found the following circumstances: Plaintiff’s intestate was attempting to cross Michigan avenue from the termination of the east sidewalk of Twenty-fourth street north of Michigan avenue to a point some 15 or 20 feet east of the east curb of. Twenty-fourth street south of Michigan avenue, there being a jog in the line of Twenty-fourth street as it crosses this thoroughfare. When first seen by any of the witnesses, he was standing about two feet north of the northerly rail of the double tracks on Michigan avenue. At that point he was seen to look both ways and then to start walking across the tracks, and the testimony indicates that he did not look again in either direction, but appeared to be looking straight ahead until the moment of the accident. It was a stormy night, with rain, snow and sleet and a high wind blowing out Michigan avenue from the east. The tracks and the pavement were coated with ice. About two minutes before the accident occurred the street lights had gone out and the street for some distance either way was dark, except for the store lights. In front of plaintiff’s intestate as he proceeded was. a lighted store and a theater with lights in front. Just as deceased was stepping over the last or .southerly rail of the southerly track, an eastbound interurban car struck him and knocked him over to within two or three feet of .the south curb of Michigan avenue. There was testimony that the interurban car had no headlight burning and that it did not ring any gong or blow any whistle as it approached Twenty-fourth street, and that it was traveling at the rate of 30 or 40 miles an hour; that its approach was not heard by any of the witnesses, partly because of the strong wind blowing against it and partly because the ice on the rails deadened the sound; that the lights in the car could not be seen by any one in front of the car on account of the snow and sleet coating the windows. None of the witnesses saw the car until it was about 25 feet from decedent, who was at that time between the two rails of the southerly track on which it was approaching. The motorman testified that he did not see deceased until the moment he stepped upon the track in front of the car and that the car at that time was but 10 or 15 feet from deceased. To enable the motorman to see out of the vestibule window that night, it was necessary for him to use a scraper to clean the window every two or three minutes. After using the scraper, it is his • claim that he could see about 100 feet ahead of him. When questioned as to when he had last wiped the snow off the window, he replied:

“I do not remember. I don’t remember whether it was a minute or two minutes or three minutes before that time I wiped the snow off the glass. Wiping that glass off was a very frequent occurrence because of the storm.”

He further testified that on account of the darkness he had to depend upon the gong all the time to warn people; that he would consider it dangerous to run the car that night without ringing the gong, even if going at a speed of only five miles an hour; that in the condition the tracks were that night, a car traveling at a speed of five miles an hour could not, even in an emergency, have been brought to a stop in less than 100 feet, nor an ordinary stop made in less than 150 to 200 feet. The testimony of one of plaintiff’s witnesses, Jacob Steinberg, contained the following:

“There wasn’t any headlight. The car was just twenty-five feet away from the man, and I was watching him crossing the street.
“Q. When that man went on the first rail, how far was the street car from him?
“A. I couldn’t see no street car. When I first saw the street car, the man was just stepping over the last track. The man was between the third and fourth rails when the car was just 25 feet away from him. He was right in the middle between these tracks when I first saw the car 25 feet away. The store lights did not go out at the same time the street lights went out. I couldn’t see no lights in the car, only when the car passed by me. I didn’t hear this car. It didn’t make any noise. I never saw a big interurban car passing there before that didn’t make a noise.
“Just as he was between the third and fourth rail I turned my head to see if there was any car coming, or hear any car coming. I didn’t hear no car coming. I was watching this man go across because he was an old man, and the road was slippery, and I thought he would slip or something. Right in the tracks there was sort of slippery. I was watching to see if any car would be coming, or if he would be hit by a car. I didn’t see any car coming. Then I saw a car about 25 feet away, when he was between the third and fourth rail. * * *
“Q. You say you couldn’t see west but 25 feet?
“A. Couldn’t see anything very distinctly over 5'0 feet is what I said. As. there was no headlight on this car, I said you couldn’t see it only about 25 feet from, the man. You could see east all right, but you couldn’t see west. There was no lights up there, the way the car was coming. The lights from the theater lit up the place where the accident happened.”

The action of the learned trial judge in entering the judgment notwithstanding the verdict was based upon his finding that the evidence showed conclusively that plaintiff’s intestate was guilty of contributory negligence.

In the case of Bady v. Railway, 180 Mich. 380, Mr. Justice Bird, speaking for the court, said:

"It is gathered from the testimony of the plaintiff and his witnesses that the night in question was a dark and stormy one, that the car was being operated at a high rate of speed, without a headlight, and that no warning was given as it approached the intersection of the avenues. It further appeared that there was no street light at the intersection. Under this state of facts, we do not think it should be said, as a matter of law, that plaintiff was not in the exercise of ordinary care in attempting to go across the track. That question was one of fact to be determined in view of all the circumstances by the jury. In determining the question, it was proper for the jury to consider to what extent the storm and darkness might have prevented him from discovering the car in season to avoid it, and it was likewise proper for them to consider to what extent the failure to have a headlight in the usual position on the car might have misled him, and also to consider whether his lack of appreciation of the danger he was in was due in any manner to the failure of defendant to do thé usual thing and sound the gong as the car approached the intersection.
_ "Notwithstanding the presence of all these conditions, as is urged by defendant, it would seem as though plaintiff ought to have seen or heard the car approaching if he took the precaution which he testified he did before attempting to go upon the track; but whether he did the thing which ordinarily careful and prudent men would do under similar circumstances is a question which is not within our province to decide. Wavle v. Railways Co., 170 Mich. 81 (Ann. Cas. 1914B, 149).”

The facts in the instant case correspond very closely. In each case the injured person stopped and looked just before going upon the track. But there is one important difference. In the Bady Case plaintiff had but a single track to cross, while in the case at bar the accident happened on the farther of the two tracks in the street and deceased stopped to look only before going upon the nearer track. It is this fact which is relied upon by defendant’s counsel as conclusively establishing negligence on the part of deceased. He says in his brief:

“It appears conclusively from the above that decedent made his observation to see whether or not it was safe to cross when at a point 2 feet north of north rail of west bound track — then proceeded to cross. * * * He therefore walked nearly 12 feet after making his observation — onto the tracks immediately in front of oncoming car, and was hit, without looking again — and that too on a stormy, sleety night, when according to. the testimony of his witnesses it was dark — street lights out — 7:30 at night. * * * His observation may have been all right so far as the west bound track was concerned, * * * but unfortunately for him the east bound track was fraught with just as much danger. * * * When there are double tracks upon the street, there are two danger zones. * * * and he can’t escape the imputation of negligence in approaching the eastbound track by claiming he made the proper observation when approaching the westbound track.”

And again:

“The worst storm of the winter was raging. The city lights, according to defendant’s witnesses, had temporarily gone out; it was snowing and sleeting; it was night time and one could not see as far as usual. All these factors would have some bearing on decedent’s contributory negligence, as the care incumbent upon him in crossing the street would be commensurate with the unusual elements which he had to contend with. These obstacles then only increased the care which he should have used — not diminished it.”

While it is true that the increased peril rendered greater precaution necessary, it is. also true that the confusion and bewilderment produced by the darkness and the storm introduces an element of uncertainty into the attempt to arrive at a judgment as to how an ordinarily prudent and careful man would have acted under the very unusual circumstances in which the deceased found himself. The precautionary measures which would at once suggest themselves in ordinary crossing cases, based on a lifetime’s experience, might seem to one in decedent’s situation of little value. He was beset with new and unusual perils. There was a driving wind with sleet and snow. The pavement was coated with ice. His range of vision in either direction was limited. If he ought to have had in mind the possibility Of a car without a headlight suddenly looming out of the darkness, bearing down on him at a speed of 30 or 40 miles an hour, from which direction ought he to have expected it? Or why a street car more than a rapidly approaching automobile, without lights, hurrying in one direction or the other along almost any portion of the width of the pavement? If he had stopped a few feet north of the second track to look carefully to the west, might not that very delay and diverting of his attention towards that direction have resulted in a failure to escape an automobile or a street car from the east, which might have caught him as suddenly and without warning as the car which actually did appear from the west? He had no more reason to expect it from the one direction than the other. Or might not even such a slight delay have resulted in his being trapped in the “devil’s strip” between two cars approaching from opposite directions with equal disregard of their duties towards persons on the highway? Prudence may have suggested to him that the safest course was to make the crossing as rapidly as possible under the circumstances. One of these circumstances was the icy pavement. To a man' of his years a mere fall caused by slipping might have had serious consequences. Moreover, the possible danger of falling on the track and becoming so disabled as to be unable to quickly extricate himself from the peril of an approaching car or other vehicle may, perhaps, have seemed to him a more real and imminent danger than the remoter possibility of being trapped, while on his. feet and proceeding with as much speed as caution would permit, by the rapid and unwarned approach of an invisible car without a headlight — a combination of negligent circumstances which he had little reason to anticipate. It is not unreasonable to say that one of the first dictates of prudence may well have been to give special care to his footing, to keep his attention on the way before him, and not to hasten unduly or make any sudden or uncertain move. That he was in fact following this course is indicated by the statement of the motorman that:

“He was looking down, watching where he was walking, I should judge.”

A person, without turning his. head perceptibly, can, if attentive, usually, detect the approach of a car or vehicle at some little distance, and there is room for the inference, from decedent’s conduct and his surroundings, that his mind was on the alert and that he was listening and attentive, trying to catch any warning of danger from either direction. Under the special circumstances of this case, we are of the opinion that it cannot be said that the plaintiff’s decedent was guilty of contributory negligence as a matter of law.

We are therefore constrained to hold that the circuit judge erred in setting aside, the verdict of the jury and entering a judgment non obstante veredicto• in favor ofythe defendant. This order will be reversed, and judgment should be entered in accordance with the verdict of the jury as rendered, with costs to the appellant.

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