author: Ostrander, J. Per Curiam.

text:
    MOON v. PERE MARQUETTE RAILROAD CO.
    1. Negligence — Personal Injuries — Actions—Evidence —Subsequent Practice.
    In an action by a locomotive fireman against his employer for personal injuries sustained in a collision between trains, happening through failure to stop his train for orders, evidence that subsequent to the collision defendant changed its rules and adopted a different method of stopping its train at that point is inadmissible.
    2. Master and Servant — Injuries to Servant — Negligence op Master — Evidence.
    In an action by a locomotive fireman against his employer for personal injuries sustained in a collision between trains, happening through failure to stop his train for orders, evidence examined, and held, to so strongly require answers opposite to those returned to two special questions submitted to the jury, relative to the negligence of the train dispatcher, that a motion for new trial should have been, for that reason, granted.
    ON MOTION POR REHEARING.
    Appeal and Error — Reversal—Special Concurrence — Procedure After Remand.
    Where all the sitting justices concur in reversing the judgment and ordering a new trial on one of the grounds discussed in the opinion, the withholding by one of them of his assent to the conclusion that the court below should have granted a new trial because the weight of the evidence on certain points required it does not amount to a dissent nor can it in any manner affect the new trial.
    Error to superior court of Grand Rapids; Newnham, J.
    Submitted November 16, 1905.
    (Docket No. 141.)
    Decided March 5, 1906.
    Rehearing denied June 4, 1906.
    Case by Edward B. Moon against the Pere Marquette Railroad Company for personal injuries. There was judgment for plaintiff, and defendant brings error.
    Reversed.

      F. W. Stevens (Charles McPherson and Benton Hanchett, of counsel), for appellant.

      F. A. Maher, for appellee.
   Ostrander, J.

Plaintiff was fireman on the locomotive pulling defendant’s passenger train (No. 5), and was injured in the collision occurring December 36, 1903, of said train, west-bound, and passenger train No. 6, eastbound. There was a verdict and judgment for the plaintiff. It is stated in the main brief for defendant that the assignments of error present but two questions for consideration, which are:

“1. The trial judge erred in admitting evidence that after the collision the defendant changed its rules in such a manner as to prevent a recurrence of such an accident and discharged the operator at McCords, and in a single instance subsequent to the collision adopted a different method in stopping a train at McCords than that by which it was attempted to stop No. 5 on the night of the collision.
“ 3. The trial judge erred in submitting to the jury the question of whether or not the order was telegraphed to McCords in time for delivery to No. 5 at that station and in holding, on defendant’s motion for a new trial, that the verdict and the special finding of the jury that the order was not received simultaneously by the operators at Ninth avenue and McCords were supported by the evidence.”

This brief was filed'September 14, 1905, and the brief for appellee was filed October 3, 1905. Later, and on October 23, 1905, another brief, which is for the most part in form and substance an original brief and not a supplemental brief, was filed, by other counsel for defendant, in which brief a question is presented and an argument made entirely outside the lines of the main brief, based upon the charge of the court to the jury. In this brief, too, a statement of facts is presented. As counsel for appellee has, without objection, replied to this later brief, it will be considered. The practice followed is not approved, the rule requiring, and the court insisting, that -the points relied upon in this court shall be stated in the main brief for appellant.

To the first question, counsel for plaintiff make the answer, first, that the objections made to the introduction of the evidence were not sufficiently specific and did not suggest the real objection, and that, the specific ground of objection not having been stated in the trial court, reversible error will not be found; second, that the testimony so admitted was rendered harmless by the charge. It might safely be assumed that the purpose of counsel in offering the objectionable testimony and the meaning of the objection that it was “irrelevant, immaterial, and incompetent,” was understood by counsel and by the trial court. The record discloses, however, that as to evidence of the change of rules not only was the above recited objection interposed, but counsel for defendant also objected, before the examination was concluded, and with reference to a question calling for the particular operation of the new rules, that what was done after the time of the collision was wholly irrelevant. Thereafter, counsel for defendant moved to strike out the evidence as incompetent and irrelevant, and, upon denial of his motion, took an exception. To the testimony concerning the method adopted at McCords to stop a train upon the first occasion after the collision that such orders were received there, the objection was that it was irrelevant and immaterial. No one can read the record without concluding that this testimony was peculiarly harmful. It was admitted over objection, no reference was made to it in the charge, and its effect may or may not have continued notwithstanding the charge. The case is a very close one upon the facts. If counsel will persist in presenting such- evidence to juries, this court, unless reasonably certain that no harm resulted, must persist in setting aside verdicts. See Fulton Iron & Engine Works v. Township of Kimball, 52 Mich. 146; Lombar v. Village of East Tawas, 86 Mich. 14; Langworthy v. Township of Green, 88 Mich. 307; Polzen. Morse, 91 Mich. 308; Noble v. Railway Co., 98 Mich. 349; Zibbell v. City of Grand Rapids, 139 Mich. 659.

By schedule, train No. 5 should have arrived at Grand Rapids at 5:15 o’clock p. m., and train No. 6 was due to leave Grand Rapids for Detroit at 5:30 p. m. It is a single track railroad. Train No. 5 was behind time, and it became necessary to arrange a passing point for these trains. The office of the train dispatcher was at Plymouth. As train No. 5 proceeded, its time of passing stations was reported to the dispatcher. It was a fast train and did not stop at all stations. It was scheduled to stop at Lake Odessa and at Elmdale. From Lake Odessa, the stations, the distance of each from Detroit, and the schedule time of No. 5, are shown by the following table:

Lake Odessa-. 120.21 miles..............4:26 p. m.

Clarksville ... 126.50 . 4:34

Elmdale...... 130.48 . 4:40

Alto__________ 134.00 4:45

Brannin_____ 135.15 .4:47

McCords____■137.45 . 4:50

Pox.......... 142.57 .4:56

Oakdale Park. 149.35 .5:05

Grand Rapids 152.16 . 5:15

Of these stations, Lake Odessa, Clarksville, Elmdale, Alto, and McCords were telegraph stations. There was also a telegraph station at Ninth avenue in Grand Rapids. By order No. 60, delivered to No. 5 at Lake Odessa, these trains were to meet at Oakdale Park. Later, by order No. 62, the meeting place was changed to Fox. The last order was given to No. 6 at Ninth avenue, should have been given No. 5 at McCords, but was not, and the trains met at a point between Oakdale Park and Fox. The question of defendant’s liability is solved when responsibility for nondelivery of this order to train No. 5 is rightly placed. The court below submitted the case to the jury upon the theory that to warrant a recovery it must be determined that the collision resulted from the fault of the train dispatcher. The only request to charge presented by counsel for defendant was one that plaintiff could not recover. They did prepare and, at the conclusion of the charge given, submit, five special questions to be answered by the jury. Each of these was answered against defendant’s contention, the fourth in the affirmative, the others in the negative. The questions were:

“First Question. Was the order changing the meeting place of trains Nos. 5 and 6 from Oakdale Park to Fox on December 26,1903, received simultaneously by the telegraph operators at Ninth avenue and at McCords ?
“Second Question. Before the train dispatcher ordered train No. 6 to proceed from Ninth avenue to Fox, on December 26, 1903, had he received from the telegraph operator at McCords information that the proper signal had been displayed to stop train No. 5 when it reached McCords ?
Third Question. Before train No. 5 had arrived at McCords on December 26, 1903, had the telegraph operator at that station turned the order board, and the lamp attached to the order board, to the proper position to signal train No. 5 to stop at McCords ?
Fourth Question. When train No. 5 arrived at McCords on December 26, 1903, was the light in the lamp attached to the order board at that station burning ?
Fifth Question. In changing the meeting place of trains Nos. 6 and 6 from Oakdale Park to Fox on December 26, 1903, did the train dispatcher take all of the precautions for the safety of trains prescribed by the so-called ‘ Standard Rules ’ for the movement of trains by train orders, prepared by the American Railway Association ? ”

The jury fully understood the meaning of the first question submitted to them. As originally prepared, the inquiry was whether the message was transmitted simultaneously.” After being out for a time, the jury returned into court and a colloquy occurred, in the course of which a juror said: “ The operator may not have been there, and still the order might have been transmitted ”— and the form of the question was changed. Accepting the theory that to entitle the plaintiff to recover, negligence of the train dispatcher must be established, the first and second special questions reach the very marrow of the issue. Indeed, the second question, if answered in the affirmative, might control the general verdict and such affirmative answer would not, necessarily, he inconsistent with the answers which were returned to the other questions.

We are convinced, from a careful reading of the record and briefs, that the testimony so strongly requires affirmative answers to these two questions that the, motion for a new trial should have been for that reason granted. If the catastrophe could be reasonably accounted for only by answering these questions in the negative, the evidence would appear to be more evenly balanced. A meeting place for the trains had been arranged, of which arrangement the crew of train No. 5 was informed at Lake Odessa and the crew of train No. 6 before they left Grand Rapids. If train No. 6 passed Ninth avenue, about a mile from the Union station, or if train No. 5 passed McCords, one of them only having received the order to meet at Fox, a collision was certain, unless No. 6 reached the siding at Fox before No. 5 arrived there, because the trains, after passing those points respectively, were beyond reach of telegraphic orders. An order was made changing the meeting place and was regularly communicated to those in charge of train No. 6 at Ninth avenue. The wire used by the train dispatcher runs into each telegraph office on the line, and each message sent is repeated in each office. Order No. 62 could have’ been read at McCords. It was as necessary that it should be read there as that it should be read at Ninth avenue. The testimony of the dispatcher, of the operator at Ninth avenue, of the operator at Alto, and of the operator at McCords is that the order to stop No. 5 at McCords was given and was responded to before the order to No. 6 at Ninth avenue was made complete. It was the rule and the practice in transmitting train orders to call the required station by initial letters and, getting a response, to signal “31.” This signal meant, “Clear the line for train orders.” Upon receiving such signal, it was the duty of the operator at a station so called to at once, by using a lever convenient to his operating table, display the stop signal. The response to the call is “58,” meaning, “Stop-displayed,” or “X,” meaning, “Train will be held until order is made complete.”' It is the rule of the defendant that when a “ 31 ” train order has been transmitted, operators must acknowledge its receipt at once in the succession in which the several offices have been addressed and in the following form: “ [Number-of train order] to [train No.] X,” with the operator’s initials and office signal. After the “X” response has been given, the order must be repeated from the manifold copy made. “Each operator receiving the order should observe whether the others repeat correctly.” It is a rule of defendant, also, that when the “ X ” response has been given.and before the “ Complete ” has been given for a train order, it must be treated as a holding order for the train addressed, but must not otherwise be acted upon until “ Complete ” has been given. After order 62 had been transmitted, and after, as all witnesses who know the facts state, it had been X’d at McCords and made complete at Ninth avenue, .the dispatcher began the transmission of another order, No. 63, to-train No. 34 from Grand Rapids to Saginaw and to train No. 5, fixing a meeting place for those trains. This order was not completed; As received at Ninth avenue, it read: “ To C. & E. No. 34; No. 5 Eng. 397 will meet No. 34 Eng. 61 at Oak — .” It was interrupted by the operator at McCords breaking in with the words: “My God! my bug is out! 5 is by,” or “ past.” The operator at McCords was a man upwards of 55 years of age, who had been a telegrapher for 40 years, and had worked all of his life in connection with railroads. He had been employed by the defendant and preceding owners of the road for 17 years; at McCords, about 10 months. He testifies that the train dispatcher was calling him when he returned to his office from a trip to the post office after the mail for No. 6; that the dispatcher said, “No. 5,” and he answered, “Not yet.” The signal “ 31 ” immediately followed, and he immediately turned his order board in which the light was burning. He further testified that when he had finished l-epeating the order No. 5 was “ right there ” and kept on going. Failing to stop the' train by use of a lantern, he thought, he says, to save No. 6, and broke in on the train dispatcher with the words: “My God! my bug is out! and No. 5 has got by.”

The train dispatcher had had 16 years’ experience as operator and dispatcher. In explaining the record made by himself, the train dispatcher testified:

Q. Now, what have you to say as to whether, as a matter of fact, you released No. 6 before you got the X ’ response from McCords showing that the other train would be held ?
A. As the circumstances were a little out of the ordinary I remember the Case in this way: The order was sent to the operator at Ninth avenue — to both, in fact, at the same time. When the operator at Ninth avenue, as I said before, started to repeat his order, or ‘ X’d ’ his order, when [then] I stopped him and received the ‘X’ from McCords, and in all probability I failed to put the time down at that time of the ‘ X.’ Then after having the order repeated from McCords, after it had been repeated by Ninth avenue, I put down the time here, which was probably at 5:34; but as a matter of fact, the ‘X’ response was received from McCords between 5:32 and 5:33.
Q. And that was before you released No. 6 ?
“A. Before I released No. 6.”

That record was:

“ (62) No! 6 J. Q. x G. A. O. 533 P. Canwell 533 P.
“No. 5D. I. xT. B. 534 P.
“No. 5 Eng. 397 will meet No. 6 Eng. 183 at Fox instead of Oakdale Park. No. 6 will take siding.”

It agrees with the order given to the conductor of No. 6, so far as it relates to No. 6, with the exception that the conductor’s copy indicates that the operator at Ninth avenue replied by the signal “ X ” at 5:32. But the copy indicates that at 5:33 the message had been received, repeated, and made complete. Being made complete, it released the train. That part which refers to No. 5 means that operator at McCords (whose call was “D. I.”) will hold train No. 5 for order No 62 and get the conductor’s signature. “ 5:34 ” means the time when operator at McCords “ X’d ” and initialed the order.

In denying defendant’s motion for a new trial, the trial judge stated all, substantially, of the testimony which can be said to dispute the positive evidence of defendant’s witnesses, and also stated inferences which in his judgment the jury might properly have drawn. A part of his statement is here set out:

“At the close of the plaintiff’s evidence, a motion was made on behalf of the defendant that the jury be instructed to return a verdict of no cause of action. The court denied the motion, being of the opinion that the evidence clearly tended to prove a prima facie case against the defendant, assuming that the evidence correctly stated the facts. It appeared that at the time the plaintiff was injured he was acting in the performance of his duty without notice that any change had been made, or attempted to be made, as to the meeting place of the two trains; that the order directing such change had been made complete to No. 6 at Ninth avenue before the dispatcher had received any answering signal from McCords, where, if anywheres, he had attempted to communicate with No. g * * *
“For the purpose of meeting the case made by the plaintiff, the defendant called as witnesses its train dispatcher, Marzolf, and the operators, Oberly and Booth, at Ninth avenue and McCords respectively, whose testimony on direct examination and standing by itself, tended to show that there had bee>n a substantial compliance with the rules made to govern the dispatching of trains. Their cross-examination, however, together with the records relative to train order No. 62, disclosed circumstances which the jury had a right to consider in deciding upon the facts of the case as well as the credibility of the witnesses themselves. It was shown that L. M. Booth, the operator at McCords, had testified at a coroner’s inquest that he entered the telegraph office at McCords at 5 :33, having been absent therefrom for a time, and received the call to take the train order at 5:34. The clocks in all the offices were set every day at 11:00 a. m. If Booth’s inquest testimony was correct, he could not have been in the office when the order, changing the meeting point of the trains, was sent to Ninth avenue.
“ It is true that Booth testified that he afterwards corrected his evidence at the inquest, so as to state that he received the train order signal at 5:33; but the order received and delivered at Ninth avenue indicates that it had been reoeived there at 5:32.
“ Booth testified that upon receipt by him of signal ‘ 31 ’ to take the train order, he answered ‘58,’ meaning. ‘ Stop displayed,’ while Marzolf says no such response was made. So Booth testified that he first saw No. 5 when the engine was nearly in front of the telegraph office at McCords, while at the coroner’s inquest he said he could see the train from his office window a half mile away, and that he saw it coming down the hill; there being quite a grade east of McCords. Had Booth received the order at McCords, it would have been his duty to have transcribed it as it was being received, and to repeat it back from his transcript. He testified that he received and repeated back the order, but no evidence was offered of his having made any transcript of it.
‘ ‘ The testimony pointed strongly to train dispatcher Marzolf as the individual whose personal negligence caused the collision. He appears, by his own testimony, to have been very anxious to save time of train No. 6. To have stopped No. 5 before releasing No. 6 would only have delayed the latter 2 to 2i minutes.
“ Marzolf said that he tried to call the operator at Alto before calling Ninth avenue, but failed to get any response. The Alto operator testified that he received the call and answered, reporting No. 5 as passing at 5:30. Marzolf knew that No. 6 had then left the Union Station and asked Ninth avenue if it could be stopped there for an order. The Ninth avenue operator says he sent out a flagman to stop the train and then answered that he could; that Marzolf then sent the order and was given the ‘ X.’ The record at Ninth avenue shows this to have been at 5:32. The conductor on No. 6 signed for the order and the signature was reported to Marzolf, and he made the order complete at 5:33. If Booth at McCords did not receive the call to take the order until 5:34, and was not in his office until 5:33, as he testified at the coroner’s inquest, it is plain that the order was not received simultaneously at McCords and Ninth avenue.
“ The distance from Alto to McCords is 3.38 miles. The schedule time was five minutes,' or 40.56 miles per hour. If the run was made in four minutes, it would have been at the rate of 50.70 miles per hour; .and if in three minutes, 67.60 miles per hour. It was down grade the greater part of the way, and the engineer was authorized to increase the speed of the train. One of the witnesses estimated that the run was made in three minutes. The fact found by the jury that the order light was burning clear at McCords when No. 5 passed, as testified by the plaintiff and engineer Waterman, together with other evidence in the case, fairly indicates that order No. 62 was not transmitted to McCords in time for the operator to display the stop signal before No. 5 arrived.”

It is to be considered that the precise and vital question is not whether the operator' displayed the signal. It is whether the train dispatcher had received from the operator at McCords the response indicating that the signal was displayed, and had thereafter, and before releasing train No. 6, transmitted the order No. 62. Every person who has knowledge says that the response was given and the order transmitted. If the response was given, then, unless it is established by plaintiff that the dispatcher was not justified in relying upon and in acting upon the information which it conveyed, the plaintiff did not, upon the theory adopted by the trial court, make a case. • If the testimony of the operator at McCords does not agree in all particulars with the testimony which he gave at the inquest, there is no variance upon the point now under consideration. If the memory of this witness is believed to be treacherous, or if his truthfulness is doubted, there remains the testimony of the dispatcher and of the operators at Alto and Ninth avenue.

What has been said disposes substantially of the contentions made in this court.

The judgment is reversed, and a new trial granted.

Grant, Montgomery, and Hooker, JJ., concurred.

Blair, J. I concur in reversal on first ground stated therefor. x

ON MOTION EOR REHEARING.

Per Curiam.

We are agreed that the motion of plaintiff for a rehearing should be denied. Certain claims made by counsel seem to warrant brief notice. The case was brought into this court by the defendant. The order of ■ this court, agreed to by all the justices who heard the case, was that the judgment below be reversed and a new trial granted. The opinion which was filed, ante, 126, discusses two of the grounds urged for reversal. As to one — the first — of these, based upon the improper admission of testimony introduced on the part of the plaintiff, the unanimous assent of the justices is given. As to the second ground, viz., that the court below should have granted a new trial because the weight of evidence upon certain points required it, four only of the justices join in the opinion. It is assumed by counsel that, in effect, a dissenting opinion was filed. It is argued that the second ground urged for a reversal and discussed in the opinion will be urged upon a new trial, and that, therefore, no doubt should exist as to the opinion of the court upon that point. If it were true, as is now asserted by counsel for defendant, that four of the justices were of the opinion that “ two of the answers of the jury to special questions were not supported by the evidence,” or that “the evidence was not sufficient to support” a certain finding made by the trial judge upon the motion for a new trial, it might be true that a rehearing upon those matters would serve the ends of justice. But both these assertions are unwarranted, and are noticed only because it may be assumed, to the advantage or disadvantage of one of the parties, that by merely denying a rehearing assent is given to the claims made. Whatever conviction may result from the arrangement and presentation of the facts in the opinion, the point and the conclusion are both stated in the following language:

“Wears convinced, from a careful reading of the record and briefs, that the testimony so strongly requires affirmative answers to these two questions that the, motion for a new trial should have been, for that reason, granted.”

See Hintz v. Railroad Co., 132 Mich. 305.

In the conclusion just stated, one of the justices who heard the case did not concur. This fact does not change the result, nor can a new trial be in any manner affected thereby.


source: Caselaw Access Project

author: Grant, J. Hooker, J.

license: Public Domain

text:
    FRED MACEY CO. v. MACEY.
    1. Equity — Jurisdiction—Issues op Fact.
    Courts of law are not clothed with the sole power to try issues of fact.
    2. Same — Jurisdiction—Fraud.
    Courts of chancery have concurrent jurisdiction with the law courts to grant relief from the consequences of fraud.
    3. Cancellation op Instruments — Equity Jurisdiction.
    Courts of chancery are clothed with power to grant relief in the cancellation of instruments, which, until their invalidity is established, may annoy and harass one’s business and impair his credit.
    4. Same — Bill—Suppioienoy op Averments.
    A bill alleged that the promoters of complainant corporation, nominally subscribing for the entire stock, made a secret and burdensome contract in favor of one of them which they claimed to be binding upon the corporation; that the other officers and stockholders of the corporation knew nothing about the contract, but believed that the corporation was receiving complete title to the patents mentioned in it, and that they took the entire property free from any burdens. The bill prayed that defendant be required to repay royalties he had paid himself from the company’s funds pursuant to-the contract, and that the contract be decreed invalid. Held, that the main relief sought was not a decree for money, but relief from a continuing contract, and that chancery had jurisdiction.
    5. Corporations — Promoters—Fiduciary Relation.
    The promoters of a corporation are the agents of the corporation and occupy a fiduciary relation to it and its stockholders, and will not be permitted to take a secret advantage of the stockholders.
    6. Same — Knowledge op Promoters as Notice to Corporation.
    Knowledge by the three promoters and nominal purchasers of the entire capital stock of a corporation, of a secret agreement, burdensome to the corporation, in favor of one of them, does not bind purchasers of the stock who had no notice of the contract, their purchases of stock not being made from the promoters as individuals, but from the corporation, its proceeds being intended to create a working capital.
    ■ 7. Cancellation of Instruments — Bill — Sufficiency — Surplusage-Removal of Cloud. .
    Where a bill by a corporation to cancel a fraudulent contract shows equitable grounds, it is immaterial that it alleges that the contract constitutes a cloud upon complainant’s business, and the court is not called upon to decide whether a bill will lie merely to remove a cloud upon one’s business.
    8. Equity — Laches—Delay by Negotiations.
    Where a corporation protested promptly upon learning of a fraudulent contract made by its promoters, and entered into negotiations for a peaceable settlement, which failed, a bill for cancellation, filed within a reasonable time after such failure, is not barred by laches.
    9. Same — Jurisdiction—Fraudulent Concealment.
    Fraudulent concealment is a matter of equitable jurisdiction as well as fraudulent assertion.
    Per Grant, Blair, Montgomery, and Hooker, JJ.
    10. Equity — Jurisdiction—Fraud — Absence of Legal Remedy.
    Chancery has jurisdiction in all cases of fraud, where complainant is entitled to relief specifically equitable, and such jurisdiction does not, in all cases, depend upon an absence of legal remedy.
    11. Cancellation of Instruments — Equity Jurisdiction — Fraud —Legal Remedy.
    Where one has obtained an executory writing by fraud, equity has jurisdiction to cancel it, irrespective of the legal redress that the injured party may obtain in an action at law, either as plaintiff or defendant.
    Per Hooker, MoAlvay, and Montgomery, JJ.
    Appeal from Kent; Wolcott, J.
    Submitted October 19, 1905.
    (Docket No. 78.)
    Decided March 5, 1906.
    Bill by the Fred Macey Company, Limited, against Frank Macey to obtain the cancellation of an agreement for the payment of royalties. From an order overruling a demurrer, defendant appeals.
    Affirmed.
    From a decree overruling the demurrer to the bill in equity in this case, the defendant has appealed. It is important to state quite fully the allegations of the bill. It states that for about three years prior to April, 1898, Fred Macey had been conducting a business under the style of “The Fred Macey Company,” consisting chiefly of selling home and office furniture and supplies by mail. On April 18, 1898, Fred Macey and one Charles W. Matheson formed a copartnership for the purpose of continuing said business under the same name. May 18th following Fred Macey and Matheson made an agreement with the defendant Frank Macey, a brother of Fred. This agreement recited that Frank had invented and applied, for letters patent on certain devices for use in card indexes, filing cabinets, and other filing devices, and was desirous of marketing the same. That agreement did not include profit on desks containing filing devices. It provided that each of the parties to the agreement should assign to the respective copartners, share and share alike, all patents that they or either of them then owned or might thereafter acquire, pertaining to card indexes, filing cabinets, and filing devices, and supplies for the same, for the sole use of said copartnership. Each copartner owned one-third of the stock of the copartnership, which was fixed at $75,000. This agreement is set forth at length, but it is unnecessary to refer any further to its provisions.
    While the business was thus carried on, certain letters patent and copyrights pertaining to articles and devices handled by the Fred Macey Company were acquired, either by purchase or issue, — some being acquired in the name of Fred Macey, some in the name of Frank, and others in the name of the three jointly. The purchase price thereof was paid by the copartnership. The business had grown, prior to 1901, to considerable proportions, requiring additional capital, and it was then agreed to promote and organize a partnership association, limited, to take over and conduct said business. The capital stock was to be $1,000,000 — $600,000 common and $400,000 preferred stock, to bear 6 per cent, interest. It was the intention of the promoters to obtain subscribers for $200,000 of the preferred stock when the company was organized, and to issue more preferred stock as additional capital might be required. The entire amount of common stock was’to be paid for by transferring to the company all of their assets, including machinery,' office equipment, mailing lists, contracts for the manufacture of goods, and the patents and copyrights-under which they had been manufactured and sold, and the good will of the Fred Macey Company. All debts of the partnership were to be paid by that partnership so that the new company would begin business with no debts. The tangible property of the partnership amounted to about $25,000 in value, of which $14,000 was the value of the machinery, tools, and fixtures, and $11,000 the value of the office fixtures and equipment; the balance of the $600,000 was made up by the transfer of the patents, trade-marks, copyrights, good will, mailing lists, catalogues, and advertising investment.
    The promotion of said organization was begun in the latter part of 1900, was completed and the articles of association executed April 19, 1901, and filed under date of May 1, 1901. During that period, through the efforts of Fred and Frank Macey and Charles W. Matheson, $200,000 of the preferred stock was sold. It was the understanding that, in obtaining subscriptions of preferred stock, the promoters would offer and give, as an inducement for such subscriptions, a half share of common stock with every share of preferred stock. Such subscribers were shown a prospectus signed by Fred and Frank Macey and Mr. Matheson. The subscribers and purchasers of stock relied upon the representations made in that prospectus in making their purchases and subscriptions. Said subscribers would not have purchased said stock if they had known of the secret agreement between Fred and Frank Macey and Charles W. Matheson, made April 18, 1901. That agreement is as follows:
    “Whereas, the Fred Macey Co., copartnership, composed of Fred Macey and Charles W. Matheson,. of the city of Grand Rapids, Mich., are desirous of placing their present business in the form of a limited copartnership association, organized under the laws of the State of Michigan, and wherein interest in such copartnership association shall be represented by preferred and common stock interests, and in accordance with a certain prospectus, which is hereto attached and which is a part of this agreement.
    “ And whereas, said Fred Macey Co. are desirous of acquiring the interests of Frank Macey in copartnership agreement known as Macey Bros. & Matheson, and dated May 18, 1898, and also acquiring certain patents and improvements on sectional bookcases, which have not heretofore been covered by any regular agreement.
    “And whereas, the Fred Macey Company is desirous of forming a blanket contract agreement with Frank Macey that will be equitable and be a fair exchange in consideration for the cancellation of his interests in the copartnership agreement known as Macey Bros. & Matheson, and also for his interests in his patents on sectional bookcases:
    “ Now, therefore, it is hereby contracted and agreed by and between said Fred Macey and Charles W. Matheson, known as the Fred Macey Co., parties of the first part, and said Frank Macey, party of the second part, for good and valuable considerations by each to the other in hand paid as follows, to wit: ■
    “1. Said first parties, their heirs, administrators or assigns agree to pay said second party, his heirs, administrators, or assigns, a royalty or consideration of 2 per cent, of the actual net selling price of all filing cabinets, filing devices, whether contained in sectional office furniture or not (except desks), and sectional bookcases, and also supplies for the same, whether embraced by patents or not, sold by said first parties, and such royalty or consideration shall not be less than $3,000 per year, and shall continue for a period of 15 years from May 1,1901. And such sums accruing as said royalty or consideration shall be payable semi-annually at the regular preferred stock dividend period of the proposed Fred Macey Co., Ltd., but said royalty or consideration shall not be paid until after the dividends both due and accrued on all outstanding preferred stock have first been paid in full- from the profits, and shall not be paid unless the company has earned sufficient profit to pay dividends both due and .accrued on outstanding preferred stock. Any profits remaining after dividends due and accrued have been paid on preferred stock, shall be applied first to the payment of said royalty or consideration both due and accrued, and shall be paid before any profits are distributed on outstanding common stock.
    “2. The said first parties agree to use all reasonable diligence in marketing the goods covered by this agreement,' and to pay all patent expenses relative thereto or relative to any invention of the said second party involved or embraced in this agreement, and said first party shall have the exclusive right to use all improvements made by said second party, whether patented or not.
    “ 3. The said second party agrees to transfer and assign unto said first parties, their heirs, administrators or assigns, all his rights, titles, and interest in the following patents, and subject to the conditions of this contract: [Here follow a list of 20 patents, 19 of which were issued, and one applied for.]
    “4. Said second party agrees to assign said first parties or to any party named by them any patents he may secure upon any improvements or that may be secured under his name on any improvements that have been or may be developed by him during the term of his employment with the said first parties, subject to the conditions of this contract, the same to be without pecuniary expense to said second party.
    “5. The said second party hereby agrees to do any acts •necessary to procure patents, both United States and foreign, on behalf of said first parties, for the benefit of said first parties, the same to be without pecuniary expense to said second party, and to assign to first parties or to their heirs, administrators, or assigns, all such patents while in the employ of first parties, their heirs, administrators, or assigns.
    “6. The said first parties agree to keep accurate and complete books of account of all business transacted by them, which shall be open to inspection by said second party at any time, and will make semi-annual reports of all sales, under-oath if requested.
    “ It is agreed that this agreement shall take effect May 1, 1901, and that the interest of Frank Macey in the sales of articles covered by this agreement prior to May 1,1901, shall be adjusted on a basis of payment to him of 2 per cent, on all sales of sectional bookcases up to and including April 30, 19Q1, and that the remainder of the articles sold shall be settled as per special copartnership agreement known as Macey Bros. & Matheson, dated May 18, 1898.
    “ This contract supersedes all prior agreements between the parties hereto, both verbal and written, and is in lieu thereof, except in event of failure of the Fred Macey Co., Limited, to be duly organized as per the attached prospectus, in which case this contract shall be void and of no effect, and all patents and all rights of interest of Frank Macey contained in agreement of Macey Bros. & Matheson .shall be returned to him the same as if this agreement had never been written.”
    The prospectus stated the business of the company for five years, showing a very large increase. It stated the proposition to form a limited copartnership association in order to take care of the excess of business, stating the stock, etc., as hereinbefore stated. It set forth in glowing terms the prospective business, the prospective profit, and the promise to give a half share of common stock for every share of preferred stock. It contained the following:
    “Preferred stock shares are for $100 each, and are entitled to 6 per cent, cumulative annual dividends, dividends payable semi-annually, February 1st, and August 1st.
    “ The preferred stock has a prior lien over the common stock on the entire net assets of the company, and also on the profits.
    “ Common stock is entitled to all dividends remaining after 6 per cent, cumulative annual dividends has been paid the preferred stock, and takes second place to the preferred stock in both dividends, and participation in the net assets of the company.
    “ Subscriptions for the $200,000 of preferred stock offered will be received on or before April 15, 1901, and 10 per cent, of the amount subscribed shall be payable May 1, 1901, and shall be subject to a 10 per cent, payment monthly thereafter until fully paid.
    “ All subscribers to stock shall be entitled to vote so long as their assessments on subscriptions are fully paid, and shall also be entitled to receive full dividends on their entire stock from the date of their first payment, provided, however, that all assessments made from .time to time by the board of directors shall be paid; but in no case shall the directors ask to exceed 10 per cent, per month on such subscriptions.
    “ All subscriptions shall be made payable to the Fred Macey Company, Limited; but no subscription shall be binding unless $200,000 of preferred stock shall be subscribed.”
    After the requisite subscriptions had been obtained for the $200,000 preferred stock, and on April 19, 1901, Fred Macey and Frank, and Mr. Matheson executed the articles of association stating the amount of capital stock held by each — Fred Macey, $200,000 preferred, $450,000 common; Charles W. Matheson, $100,000 preferred, $150,000 common; Frank Macey, $100,000 preferred, no common. It annexed a schedule of property mentioned in the articles. The schedule among its assets mentioned “Entire interest in all copyrights, trade-marks, and applications for copyrights and trade-marks covering the line of merchandise dealt in by the association.” The officers selected were three managers — Fred Macey, Charles W. Matheson, and Frank Macey. Chairman, Fred Macey; secretary, Charles W. Matheson; treasurer, Frank Macey.
    At the first general meeting of the shareholders, July 25, 1901, a board of five managers was selected, giving their names; that at that meeting a report was made by the chairman, Fred Macey, in the presence of the defendant, Frank, stating the resources and liabilities of the company, among which were the following:
    “Patents, trade-marks, copyrights, good will, contracts, organization, and established trade of mail order business of the Fred Macey Company, $465,632.72.
    Since the organization $100,000 of the reserved preferred stock has been subscribed, paid for, and issued, and is now held by a large number of stockholders who were ignorant of the contract which is the subject of this litigation. Nearly all of the $600,000 of the common stock has been sold by Fred Macey and Matheson, and such purchasers bought without any knowledge or notice of that contract. Said Frank had general knowledge that Fred Macey and Mr. Matheson were selling to persons purchasing in good faith with no knowledge or notice of the existence of this contract. About one year after its organization complainant first became aware of the existence of this contract, except in so far as it might be chargeable with notice because the contract was within the knowledge of the individuals originally forming the company, but charges that because of the relations of said three parties to it, notice to these individuals was not notice to the complainant. Said contract was unknown to nearly if not all of its subscribers except the three named. After said contract became known to complainant the defendant claimed, and has continued to claim, that it is obliged to pay said royalty of 2 per cent, specified therein. The articles upon which this royalty is to be paid have constituted more than one-half of its business. The royalties amounted to several thousand dollars each year. In consequence of the knowledge on the part of defendant of the sale and purchase of this stock, under the circumstances, he is estopped in equity from asserting said contract as a liability or debt against complainant. Defendant has been, from the formation of the complainant, and still is, its treasurer, having general charge and custody of its funds. Defendant was formerly in the employ of the complainant on a salary, but is not now actively connected with the business. During the first two years of its existence he drew from its funds the sum of $10,700, claiming that it was due him under this contract, and has refused and still does refuse to account for said moneys, and to return or replace it. Soon after the existence of this contract became known to the other members of the board of managers, and defendant claimed payments under it,— they objected, and various discussions and negotiations were had between the managers and the defendant to prevent litigation and to get complainant relieved from liability under said contract. Such discussions and negotiations continued for nearly two years, but did not result in a final settlement. Defendant claims that payments under such contract are constantly acciimulating as a liability against the complainant. Complainant is in default on its preferred stock. The length of time during which it may be so in default is uncertain, depending upon the success of the business. In consequence, no action for such payments can now be maintained, but defendant threatens to bring suit therefor. The relations between complainant’s stockholders and defendant are fiduciary, and it would be unjust and inequitable, therefore, to permit him to enforce the said contract, and as between complainant and defendant there is no consideration for any liability under said contract; said claims and pretentions of the defendant—
    “ Constitute a serious and continuing cloud upon and injury to your orator’s property and business; that the same, if it in fact exists, will continue to accumulate from year to year, without any power on the part of the defendant, Frank Macey, to bring an action at law therefor, unless dividends on the preferred stock are earned and paid; that it may thus, accumulate to a very large amount, and to an amount sufficient to seriously injure or to destroy the financial standing and credit of your orator, without any opportunity to determine at law the validity and existence of the same; that the alleged existence of such claim and possible accumulation thereof constitute a cloud against that portion of the assets of your orator represented by the preferred stock, both because its existence and satisfaction may exhaust profits and assets required in future years for the payment of cumulative dividends on the preferred stock, and because it may be claimed to have priority over the preferred stock as to the assets in casé of liquidation, and because, as aforesaid, such claim and the accumulation thereof injure and may seriously impair your orator’s ability to do business; and that the same constitutes a cloud upon and injury to that portion of your orator’s assets represented by the common stock because it is alleged to be prior thereto in all respects for the full term of such contract.”
    The prayer of the bill is that the defendant may answer ■under oath that said contract may be adjudged to constitute a cloud upon the complainant’s business and assets, that it be canceled and vacated as to complainant; that it be decreed that said contract created no liability against complainant; that the defendant be enjoined from asserting that said contract creates any claim against complainant; that defendant account for moneys withdrawn under it, and be decreed to return, refund, and pay them over to complainant. To this bill a demurrer was interposed, denying that complainant is entitled to relief for the following reasons:
    “ 1. That the complainant has not shown that it is a corporation, and entitled to bring the suit in the name of the association.

      “2. That the said bill doth not contain any matter of equity whereon this court can ground any decree or give to the complainant any relief against this defendant.
    “3. That the complainant had a plain, adequate, and complete remedy at law.
    “ 4. That the claims of the defendant against the complainant, under the contract of date April 18, 1901, do not constitute a cloud upon the complainant’s property and business.

      “ 5. That equitable relief upon an allegation of a cloud upon title is limited to the title to real estate, and does not extend to personal property and business.
    “ 6. That the complainant has not rescinded, nor offered to rescind the contract of date April 18, 1901.
    “7. That the complainant has retained all the benefits of the contract of date April 18, 1901, and thereby has affirmed its validity.
    “8. That the complainant, by its bill, has not made any title to the relief thereby prayed in respect to the contract of date April 18, 1901.
    “ 9. That the complainant has shown by its bill that it has been guilty of laches in that it has delayed for the space of two years and over, after full knowledge of the contract of date April 18, 1901.”
    Complainant was afterwards permitted to amend its bill by inserting four new paragraphs, alleging in substance:
    That the full and complete equitable title to the patents, rights to improvements, and inventions specified in paragraph 3 of the contract, was vested in the complainant by a transfer from Fred Macey and Charles W. Mátheson, and that the assignment of the same by the defendant was for the purpose of conveying the naked legal title thereto.
    That the patents, inventions, and rights .were substantially of no value. That their use was long ago abandoned with some technical but no substantial exceptions. That they are of no use to complainant at the present time, and that the money withdrawn by defendant for payments under the contract was many times in actual value of said patents.
    That as Fred Macey and Charles W. Matheson transferred these patents and rights to the association, which has paid them for the same by the issue of its common stock, the complainant is under no legal or equitable obligations to return the patents to the defendant, but is willing, and hereby offers, if the court shall think it equitable, to return to the defendant “all and every right, title, or interest in any patent or in any invention conveyed by him directly or individually to the complainant.”
    That it did not know of the “withdrawals or payments” until the discovery of the contract,— and then protested and refused to permit it further to be carried out. But the allegations of lack of knowledge are intended to allege lack of knowledge by any officer or manager of this complainant except the three individuals who were personally interested therein. But the three individuals were three of the five managers of the company.
    The original demurrer was ordered to stand as a demurrer to the amended bill.

      Taggart, Denison & Wilson, for complainant.

      Grane & Norris, for defendant.
   Grant, J.

(after stating the facts). The ground of demurrer most strenuously urged is that complainant has an adequate remedy at law which bars the jurisdiction of the chancery court. It is claimed that to maintain this suit in equity deprives the defendant of his constitutional right to a trial by a jury. The learned counsel for the defendant say that (l) complainant, if sued at law by the defendant, can plead the fraud and invalidity of the contract as a defense, and (2) that he may now bring a suit at law to recover the amount appropriated by the defendant from the complainant. They have filed an able and exhaustive brief citing many authorities to sustain their contention.

Courts of law are not clothed with the sole power to try issues of fact. The jurisdiction of the court of chancery in this State to try cases and grant relief from the consequences of fraud is as old as the jurisprudence of the State. In the early case of Wheeler v. Clinton Canal Bank, Har. Ch. (Mich.) 449, the court, after holding that the complainant’s remedy at law was difficult and doubtful, said: “ Courts of chancery have also concurrent jurisdiction in cases of fraud.” See, also, Wales v. Newbould, 9 Mich. 45. The same principle runs through, many cases from that time to the late case of Edwards v. Investment Co., 132 Mich. 1, in which many authorities are cited.

Counsel recognize that this case is ruled by John Hancock Mut. Life-Ins. Co. v. Dick, 114 Mich. 337 (43 L. R. A. 566), and Mactavish v. Kent Circuit Judge, 122 Mich. 242, and therefore argue strenuously for the overruling of those cases. They insist that they are overruled by the later case of Northwestern Mut. Life-Ins. Co. v. Amos, 136 Mich. 210, and that the writer of that opinion failed to distinguish it from those cases. We may have failed in distinguishing them, but we were evidently of the opinion that we did distinguish them. At all events it is manifest that there was no intention to overrule the former cases, but, on the other hand, to approve them. Our attention is called to no case in which we have cast any doubt upon the correctness of those decisions.

The concurrent jurisdiction of courts of equity and of law where relief from fraud is asked, is too firmly established in the jurisprudence of this State to be now overruled. We deem it unnecessary to again travel over the ground and cite the many authorities upon the subject. We may, however, state that Barrows v. Doty, Har. Ch. (Mich.) 1, and Teft v. Stewart, 31 Mich. 367, and similar cases cited by defendant, have no application to this case.

In Barrows v. Doty complainant sought relief in chancery from a judgment in a suit at law on two promissory notes, where he might have set up the same facts as a defense upon which he claimed relief in his equity suit.

In Teft v. Stewart a decree for money alone was asked. Complainant asked no relief as to the instruments upon which the transaction was based.

Courts of chancery, not only in this jurisdiction but in others, are clothed with power to grant relief in the cancellation of instruments which, until their invalidity is determined, may annoy and harass one’s business and impair his credit. The language of New York, etc., R. Co. v. Schuyler, 17 N. Y. 592, is so applicable here that we quote it:

“There is no head of equity jurisdiction more firmly established than that which embraces the cancellation of instruments which are capable of a vexatious use after the means of defense at law may become impaired or lost, or when they are calculated to throw a cloud upon the title or' interest of the party - seeking relief. * * * Whatever their character, if they are capable of being used as a means of vexation and annoyance, if they throw a cloud upon the title or disturb the tranquil enjoyment of property, then it is against conscience and equity that they should be kept outstanding, and they ought to be canceled. These principles of general jurisprudence are believed to be decisive in favor of the right of this corporation to demand the cancellation of the false stock and to maintain a suit in equity for that purpose.”

The bill alleges the existence of an instrument, intended by the parties who made it to bind the corporation. Silence for a long time on the part of the corporation might endanger its rights.

It is undoubtedly true that complainant might bring a suit to recover the money which it alleges the defendant unlawfully took from its treasury. If in that suit the binding force of this contract upon the complainant were decided, the judgment would undoubtedly determine the rights of the parties for all time; but it is apparent, under the facts alleged in the bill, that that case might be disposed of without deciding the main question here sought to be litigated. The defendant might concede that the conditions had not, in fact, arisen which entitled him to the royalties, and therefore might repay the amount taken before trial. Or the court might dispose of the case on other grounds than the validity of the contract. However this may be, the concurrent remedy in equity lies. The bill alleges in substance that the three promoters of the complainant corporation, nominally subscribing for the entire stock, made a secret and burdensome contract which is claimed to be binding upon the corporation; that other officers and stockholders of the corporation knew nothing about it, but believed that the corporation was buying complete title to these patents, and that they took the entire property free from any burdens. ■ The main relief sought is not a decree for money, but relief from a continuing contract, claimed by defendant to be binding upon the complainant though it was not a party signatory to it. Under the allegations of the bill it will, unless declared inoperative as to the complainant, injure its business and impair its credit.

These promoters occupied a fiduciary relation to the complainant and the other stockholders. 2 Cook on Corporations (5th Ed.), § 651; Warren v. Holbrook, 95 Mich. 185. They were agents of the corporation, and will not be permitted to take a secret advantage of the other stockholders. Dickerman v. Trust Co., 176 U. S. 181.

The knowledge of this contract by the three promoters and subscribers to the capital stock did not bind the purchasers of the stock who had no knowledge thereof. The stock evidently was not sold as their individual property, but as the stock of the corporation, the proceeds of which were to be paid into the treasury as a working capital. The case is one with which a court of equity can most effectually and may most appropriately deal, and in one suit settle and determine all the questions affecting the rights of the parties.

We think it immaterial that the complainant has alleged this contract to be a cloud upon its business. We need not therefore discuss the question whether a bill will lie merely to remove a cloud upon one’s business. The bill does allege that the transaction was a fraud upon complainant and its stockholders who purchased without any knowledge of the transaction — and the facts upon which this fraud is based are stated. These allegations are sufficient to call for an answer and proofs; and the allegation that it is a cloud upon its business may be treated as surplusage.

Complainant’s cause of action is not under the bill barred by laches. It protested promptly after discovering the fraud, and entered into negotiations for a peaceable settlement, which failed. Under the bill there has been no such failure to assert rights or such lapse of time as will justify the court upon demurrer in holding the complainant guilty of laches. A similar question was raised in Compo v. Jackson Iron Co., 49 Mich. 39, where more than 35 years had elapsed since the making of the agreement which was the basis of the suit. The court held that “ lapse'of time alone will not necessarily operate as a disseisin in law or in equity, and the bill does not indicate any considerable delay since the company gave up negotiating, and denied her rights.”

Fraud may be consummated by suppression of facts and of the truth, as well as by open false assertions. Fraudulent concealment is a matter of equitable jurisdiction as well as fraudulent assertion. The point, therefore, that no fraudulent representations were made by the defendant to the complainant or its stockholders, is not well taken.

We deem it unnecessary to discuss the other questions presented by the demurrer. The decision of most of the questions may be controlled or affected by the proofs.

The decree is affirmed, with costs, and the case remanded for leave to answer in accordance with the rules, and practice of the court.

Blair, Montgomery, and Hooker, JJ., concurred with Grant, J.

Hooker, J.

I concur in the opinion of my Brother Grant in this cause.

My understanding of the bill is, that it alleges that the defendant and two former partners, conducting a business, desired to increase the capital employed, and did so. by selling preferred stock in a copartnership association, limited. That in selling the stock, of which a large amount was marketed, they made representations at variance with' a secret contract, made between themselves,, under which the defendant has since claimed, and appropriated royalties, upon the goods manufactured. It is. charged, that being treasurer of the company, he has paid himself alleged royalties, to the amount of $10,000 and more, and that he claims that said contract is a valid and subsisting obligation, under and by virtue of which he may hereafter become entitled to royalties upon future business of the concern. The bill prays a cancellation upon the ground of fraud. The defendant demurred, and. has appealed from an order overruling the demurrer.

The contention of the defendant’s counsel rests upon the proposition, that the complainant has a right to sue for the money heretofore appropriated, in a court of law, and that the decision in that case will settle the questions raised by the bill. I am of the opinion that the well-settled rule in chancery, throughout the country, is that it. has jurisdiction in all cases of fraud, where the complainant is entitled to relief specifically equitable, and that it does not in all cases depend upon an absence of legal remedy. Inasmuch as the question has been settled in this State, there is no occasion to cite cases from other courts. In the case of John Hancock Mut. Life-Ins. Co. v. Dick, 114 Mich. 337 (43 L. R. A. 566), the doctrine was adhered to that an insurance policy, obtained by fraud, might be the subject of a bill to cancel, notwithstanding the fact that the company might successfully defend an action upon the policy upon the ground of fraud. In that case an action at law had been commenced and was restrained. It was shown that a different rule in the Federal courts rests upon a statute, and the cáse of Teft v. Stewart, 31 Mich. 367, cited and quoted from in the opinion of my Brother Grant, was commented upon. The complainant in that case made two points: (1) That courts of equity and of law have concurrent jurisdiction in cases of fraud. (2) That the former may grant more complete relief, where an instrument is fraudulently obtained, by compelling cancellation, or surrender, and other equitable relief.

The case of John Hancock Mut. Life-Ins. Co. v. Dick was followed in a later case, viz., Mactavish v. Kent Circuit Judge, 122 Mich. 242. It was very similar in its facts to John Hancock Mut. Life-Ins. Co. v. Dick, so much so that the opinion said that “the principal effort of counsel appears to be directed toward inducing us to overrule the case of John Hancock Mut. Life-Ins. Co. v. Dick, etc.” We placed our decision plainly upon the ground, that where one has obtained an executory writing by fraud, equity has jurisdiction to cancel it, and that such jurisdiction is not affected by any legal redress that might be obtained in an action at law whether it had been already commenced or not. ' We said:

“ The question there was not whether it was a hardship upon the plaintiff to be compelled to try the question of fraud in equity, rather than before a jury, but — First, whether equity has jurisdiction to cancel a contract obtained by fraud; and, second, whether such jurisdiction is cut off by the institution of á prior action at law upon the writing. There is but one answer to these questions. The jurisdiction of equity for cancellation is well settled, and courts cannot curtail such jurisdiction because the same evidence that would justify a decree of cancellation may constitute a defense to an action upon the instrument. The authority to restrain the pending action at law is based upon the equitable jurisdiction to prevent a multiplicity of suits, and this is as well established as any other jurisdiction of equity. Then, the fraternal society had a right to sue in equity, and the court must entertain the suit. It might or might not restrain the beneficiary from prosecuting the pending action at law. That was a matter for the discretion of that court, and not for us. These propositions are elementary, and, as shown in John Hancock Mut. Life-Ins. Co. v. Dick, are fortified by authorities. The briefs in this case furnish additional support to the claim of respondent.
“ It is urged that the circuit court for the county of Bay first obtained jurisdiction, and that no other court could deprive it of such jurisdiction, or itself take jurisdiction of this controversy. What force there is in this contention applies to cases where two courts have concurrent jurisdiction. These courts have not concurrent jurisdiction, for the court of law has no power to cancel, as was shown in the case of John Hancock Mut. Life-Ins. Co. v. Dick, which is a case upon all fours with the present. * * *
‘ ‘ This attack upon a well-settled chancery jurisdiction has-as a foundation the proposition that a person claiming under an insurance policy has a right to try the question of fraud before a jury, and therefore equity should in all cases permit the case to be tried by jury. But counsel does not stop there; he would have us go further, and hold that a chancellor has no discretion, but must yield his own jurisdiction in all such cases, and that, if he does not, we will compel it. There, would be no more propriety in our curtailing equity jurisdiction than there would be in denying some legal jurisdiction. But suppose we were to do so, and hold that equity could not restrain the prosecution of an action of this sort; what should we do where the suit.for cancellation is begun first? Will the next step be the contention that we should deny the jurisdiction of chancery in such a case, because we may think the right to make a legal defense is remedy enough ? If so, and we yield to it, all concurrent jurisdiction would be taken from equity; and not only that, but the same would be true in all cases where, as in this case, equity has jurisdiction to give greater relief than a court of law can do. The right to equitable procedure and relief would not then depend upon established rules, but upon the question whether the complainant ought to be satisfied with some lesser relief, which, in the opinion of an appellate court, would, or could be made to, answer his purpose. We understand that equitable rights are as sacred and as well guarded by the Constitution as the right of trial by jury, and we see neither the occasion nor the opportunity to increase the latter at the expense of the former.”

These two decisions do not leave the question in doubt. They clearly sustain inviolate, the jurisdiction of equity, where the equitable right to cancellation exists, and refuse to permit it to be swept aside upon the insistence of interested parties, that their preference and not that of the complainants be allowed to prevail. These cases were, however, questioned again in the case of Edwards v. Investment Co., 132 Mich. 1, where they were approved, Mr. Justice MOORE'writing the opinion.

The case of Northwestern Mut. Life-Ins. Co. v. Amos, 136 Mich. 210, was a case of a bill filed to cancel a policy, upon the ground that it was fraudulently stamped, either by the instigation of the beneficiary, or the representative of the assured. A demurrer was sustained to the bill, three of five judges being of the opinion that the bill did not allege fraud. The majority opinion said, after citing the Dick, Mactavish, and Edwards Cases, that:

“ Those cases have no application here. The basis of the equity jurisdiction there sustained was fraud — active fraud in the procurement of the policies, of the renewals thereof, after they had lapsed. The sole question in this case is one of fact, viz.: Were the policies delivered and the premiums paid, or their payment waived ? The doctrine in the Dick Case will not be extended to include cases of this character, where the questions involved are purely legal, no fraud is charged, and there is no possible reason for the interposition of a court of equity.”

It is obvious that those cases were not overruled. A dissenting opinion was filed in this case, indicating a contrary view of the question, of whether the bill stated a charge of fraud, and collecting the authorities applicable to the question of jurisdiction. The following language is pertinent here, especially as we do not understand that it was questioned in that case except as to the premises assumed:

“ Under such allegations chancery has jurisdiction and it does not depend upon what the proofs may show. The bill states a case of fraud, and jurisdiction must depend upon that. This question arises upon demurrer, whereby the allegations of the bill are admitted. Edwards v. Investment Co., 132 Mich. 1. It is possible that a hearing upon the merits may show these allegations to be unsupported by the evidence, as was the final result in John Hancock Mut. Life-Ins. Co. v. Dick.
“ If there is jurisdiction in equity on the ground of cancellation, it is not limited to cases where a defense might not be made in a court of law. * * *
“ The remedy is a concurrent one, and to hold that it depends upon the inadequacy of the legal remedy, is to abridge the equity jurisdiction, which our Constitution and laws guarantee, as unqualifiedly and effectively as they do legal remedies, and the right to trial by jury, as we held in John Hancock Mut. Life-Ins. Co. v. Dick, supra. The court should as carefully guard and protect this jurisdiction as any other.”

The case of Mack v. Village of Frankfort, 123 Mich. 421, again discussed the Dick Case, and distinguished it. It was not a cancellation case, and while all concurred in sustaining the demurrer, but two of the members of the court assented to the opinion filed.

Another case written by Mr. Justice Moore is Edwards v. Investment Co., 132 Mich. 5. That was a case of a fraudulent contract. Undoubtedly an action at law would have been proper, and perhaps in a sense adequate, certainly as nearly adequate as in the present case. But the concurrent jurisdiction was sustained as follows:

“ The second important ground for demurrer is that complainant has a complete and adequate remedy at law; counsel citing,among others, the two cases mentioned above. [Rehberg v. Surety Co., 131 Mich. 135, and Barney v. Surety Co., 131 Mich. 192.] It is not always true that, because a remedy might be pursued upon the law side of the court, the chancery side may not also have jurisdiction. The bill alleges that complainant’s money was obtained from her by means of fraud; that defendants conspired together, and were parties to the fraud; that a large business was done by the corporation; that it is insolvent ; that defendants have converted the money taken in by the corporation, including the complainant’s money, to their own use; that dn accounting is necessary, and an examination of the books of the corporation. If the case stated in the bill is true — and it must, on demurrer, be deemed to be true — under the repeated decisions of this court the chancery side of the court has jurisdiction. Wheeler v. Clinton Canal Bank, Har. Ch. (Mich.) 449; Wallace v. Harris, 32 Mich. 380; Wyckoff v. Machine Co., 43 Mich. 309; Tompkins v. Hollister, 60 Mich. 470; Sherman v. Stove Co., 85 Mich. 169; Cogswell v. Mitts, 90 Mich. 353; Warren v. Holbrook, 95 Mich. 185; John Hancock Mut. Life-Ins. Co. v. Dick, 114 Mich. 337 (43 L. R. A.566); Blodgett v. Foster, 114 Mich. 688; Lieberman v. Sloman, 118 Mich. 355; Mactavish v. Kent Circuit Judge, 122 Mich. 242; Noble v. Grandin, 125 Mich. 383.”

It must be apparent that we are “threshing old straw” in a further discussion of this question. We will, however, refer to some of the earlier cases which vindicate the jurisdiction of equity, in those classes of cases clearly within the several branches of equity jurisdiction, where there is an equitable right involved, whether there may or may not also be a legal remedy, which we may think practically adequate. There are many such cases. Suit upon a note might be - an adequate remedy, yet it is no reason for denying a foreclosure of a mortgage or suit to enforce a lien securing it. As in the Edwards Case an action for damages is many times adequate to enforce a right growing out of a fraud. And a suit for money had and received might answer every purpose, yet circumstances may justify an accounting or an injunction. In Wheeler v. Clinton Canal Bank, Har. Ch. (Mich.) 457, it was said, “Courts of chancery have also concurrent jurisdiction in cases of fraud.” In Wales v. Newbould, 9 Mich. 45, a bill to restrain a pending suit at law, on a promissory note, and for the surrender of the same and other personal property for fraud, was demurred to, upon the ground that complainant had an adequate remedy at law. The court held that notwithstanding the remedy at law was adequate, as respected the personal property, the bill for surrender would be sustained, and that as to the note, the remedy was not adequate, because complainant was entitled also to have the note surrendered, and not simply to defeat the action. In Wright v. Hake, 38 Mich. 525, a bill was filed to restrain an action at law on a replevin bond, on the ground of fraud. . The court sustained the jurisdiction, Judge Cooley saying:

“We have only to notice further the objection taken to the remedy in equity. It is urged in defense that the equities here insisted upon were available to the parties at law, and might have been relied upon in defense to the suit on the bond. This may be true, but it does not follow that equity could not take jurisdiction of the case. Equity has general jurisdiction in cases of fraud, and sureties have often been relieved under circumstances analogous to the present.”

In Wyckoff v. Machine Co., 43 Mich. 309:

“It is objected that complainant had ample.remedy at law; and this is probably true. There has nevertheless always been a concurrent remedy in equity in cases of fraud; Wheeler v. Clinton Canal Bank, Har. Ch. (Mich.) 449; Edsell v. Briggs, 20 Mich. 433; and as equity in this case could require the surrender of the agreement and the machines on just terms, its remedies would be more complete and ample than any which a court of law could afford.”

In Tompkins v. Hollister, 60 Mich. 479, Morse, J., wrote:

“ And it makes no difference that she may have an adequate remedy at law. Equity has concurrent jurisdiction in cases of fraud, and she can enforce her rights in this suit.”

In Brown v. Kalamazoo Circuit Judge, 75 Mich. 274 (5 L. R. A. 226), a question of fact was decided by a jury, by direction of the judge in a chancery cause, under a then recent statute. This court said:

“The cognizance of equitable questions belongs to the judiciary as a part of the judicial power, and under our Constitution must remain vested where it always has been vested heretofore.”

Sherman v. Stove Co., 85 Mich. 169, was a bill to cancel a subscription. The objection that there was an adequate remedy at law was overruled. In Cogswell v. Mitts, 90 Mich. 355, Montgomery, J., said:

“It is contended, however, that jurisdiction in equity to cancel a writing does not exist if it appear that the complainant has a complete remedy at law, except in cases where fraud is shown. But we think the evidence in this case shows that there was an actual fraud.”

That was a bill to cancel a promissory note. Obviously the fraud could have been shown as a defense at law. Chicago, etc., R. Co. v. Miller, 91 Mich. 166. In Warren v. Holbrook, 95 Mich. 185, Grant, J., said:

“ It is first contended that complainant’s remedy at law is adequate and complete, and that, therefore, this bill cannot be maintained. Complainant might have maintained an action at law, and either attached or garnished the fund- in the hands of Sweet. It requires no citation of authorities, however, to show that courts of equity have in many cases concurrent jurisdiction with courts of law. The general rule is that courts of equity have jurisdiction to compel an accounting where fiduciary relations exist, or fraud is charged. * * * In such case choice of remedies is with the party aggrieved, and he may proceed in equity for an accounting, and pursue the fund.”

See, also, Wallace v. Harris, 32 Mich. 380, 389, where it is said:

“ When the cause is only colorably one for partition, and the true end and purpose is evidently to obtain a determination of rights respecting title and possession which are purely legal, and no matters appear to create obstacles to a. full, fair and final disposal of the controversy in a court of common law, there is solid ground for claiming that the litigation ought to be carried on in such a tribunal. But the reason for remitting the investigation to a common law court is one of policy and fitness, rather than of any inherent want of power in a court of equity; and hence, if chancery decides, and there is no reversal in a proceeding directed to that end, the result is not void, but must stand and be respected.”

It is not too much'to say that these cases show that there is a concurrent remedy in cases of fraud, where there is an equitable right. It would not be much of a “ concurrent remedy ” which would be allowed only when there was no other. In view of these cases and the more recent ones of John Hancock Mut. Life-Ins. Co. v. Dick, Mactavish v. Kent Circuit Judge, and those in which they have been distinguished, and not in any way disapproved, the right of the complainant to this remedy should not be denied.

The cases relied on by counsel for the defendant are Left v. Stewart which was cited and distinguished in the Dick Case; Mack v. Village of Frankfort, the opinion in which did not meet the approval of a majority of the court; and some Federal cases, which, as shown in the Dick Case, involve a Federal statute which has no bearing here. The decree of the learned circuit judge should be affirmed.

McAlvay and Montgomery, JJ., concurred with Hooker, J.


author: Moore, J.

text:
    LINE v. GRAND RAPIDS & INDIANA RAILWAY CO.
    1. Railroads — Negligence—Crossing Accident — Question for Jury.
    Where, in. an action against a railroad company for injuries sustained in a crossing accident, plaintiff and his witnesses testify that they were listening, and would have heard the statutory signals had they been given, that the accident occurred at about 5 o’clock in the morning, that it was dark and that the headlight on the locomotive was not burning, which testimony is contradicted by witnesses for the defendant, a question is presented peculiarly within the province of the jury.
    2. Appeal and Error — Review—Questions of Fact — Refusal of New Trial.
    In reviewing the refusal of the trial court to grant a new trial because the verdict is against the weight of the evidence, this court brings to the support of the decision of the trial judge all reasonable presumptions which arise from his superior opportunity to determine the credibility of witnesses, and recognizes the principles which have always governed trial courts in determining whether or not verdicts should be set aside.
    3. Evidence — Experts—Competency.
    A witness who states that he has lived by the side of the railroad track four years, has observed the speed of trains and timed them between stations, and just returned from a railroad journey to a distant State, is competent to express an opinion upon the speed of a train, the objections that might be suggested against his testimony going rather to its weight than to its competency.
    .4. Railroads —Negligence—Crossing Accident — Action—Instructions.
    Where, in an action against a railroad for injuries received in a crossing accident, plaintiff makes no claim for damages because of the speed of the train, and - evidence relative to the speed is admitted solely as bearing upon the question of plaintiff’s contributory negligence, an instruction so stating the purpose of that evidence to the jury and stating that an undue rate of speed, independently, would not be negligence on the part of defendant, is not open to the objection that it gives the question of undue speed unnecessary prominence, there being evidence that the speed was unusual and undue.
    5. Same — Evidence—Speed of Train.
    Where, in an action against a railroad company for injuries sustained in a crossing accident, it is plaintiff’s claim that on a dark, stormymorningheapproacheddefendant’s track with a purpose of crossing, that he stopped, looked, and listened, and heard nothing, that he drove upon the track, when defendant’s train came upon him out of the darkness without warning, running at a high rate of speed withoutaheadlight, and defendant claims that he was guilty of contributory negligence, testimony that the train was running at a high rate of speed is material upon the question whether plaintiff did what a reasonably prudent man would do under the circumstances.
    Error to Antrim; Mayne, J.
    Submitted December 5, 1905.
    (Docket No. 152.)
    Decided March 5, 1906.
    Case by David A. Line against the Grand Rapids & Indiana Railway Company for personal injuries. There was judgment for plaintiff, and defendant brings error.
    Affirmed.
    , T. J. O’Brien, J. H. Campbell, and Roger Irving Wykes, for appellant.

      W. 8. Mesick, for appellee.
   Moore, J.

This is an action to recover damages for a personal injury. The plaintiff was injured through being struck by a train on the morning of January 11, 1899, at a highway crossing in the village of Alba, Mich. The plaintiff recovered a substantial judgment. The defendant afterwards made a motion for a new trial on the ground that the verdict was against the weight of evidence. This motion was denied. The case is brought here by writ of error.

It is strenuously insisted the lower court was clearly in error in refusing to grant the motion for a new trial under the statute — counsel citing Baldwin v. Railway Co., 128 Mich. 417-420; Whipple v. Railroad Co., 130 Mich. 460, 462; Cole v. Railway, 132 Mich. 122, 125; Hintz v. Railroad Co., 132 Mich. 306, 308.

A brief statement of the claim of plaintiff; is important. It is his claim that while in the exercise of due care, he was injured at a highway crossing because of the negligence of defendant. In the course of his examination as a witness he gave the following testimony:

“ I got up about 4 o’clock, fast time. The sleigh I was drawing logs on was a pair of handmade sleighs made in Gaylord. Had swing bunks. They were a good pair of strong, heavy sleighs. The barn where I kept my horses was about 30 rods west of the railroad. It stood back from the street quite a distance. It was not daylight when I left the barn. It was quite dark yet in the morning. There was no moon shining. It was quite cold and a fine snow falling, and the wind blowing.
Q. Well, what did you do after you left the barn ?
A. Well, I passed on out north through the lot till I struck Maple street running east. I followed that street east, and when I came to about 30 feet of the railroad crossing, I saw a dim light there, so I stopped my team, but I see it wasn’t moving, and it was too small for the headlight of an engine, so I raised up on my feet to look south, but I couldn’t see down along the track south. There was some box cars there on the track, so I stood there a reasonable length of time, and sat down on my seat, and drove on, and just as I drove down on the snow plowed road, and kind of swung my team around, I looked around, and there the train was right on me.
“Q. I ask you during the time you were traveling this distance of about 30 feet, where you stopped, as to whether you looked and listened during that time for a train ?
“A. I did, sir.
“Q. I ask you whether you listened, at the time you stopped, for a train ?
“A. I did. I looked and listened both.
“Q. Now, what do you say as to this train that came onto you, or this locomotive, where did it strike your team and you?
“A. Well, I couldn’t say where it struck me. I had just swung my team around on the track, and it seemed as though it struck the one horse right in between the horses, kind of — you know.
ilQ. The train that struck you was coming from the southwest ?
“A. Yes, sir.
“Q. Now, did you hear any train coming ?
“A. No, I did not.
“Q. Was there anything to prevent your hearing the train coming- if it had given the usual signals ?
“A. No, sir.
“Q. Did they blow any whistle or ring any bell before approaching that crossing ?
“A. No, sir.
“Q. What do you say as to there being any reflection or light there, what is ordinarily called a headlight, upon this locomotive, at this time ?
“A. There was none.
“ Q. Was there any light reflected from that locomotive down the track ?
“A. No, sir.
Q. Did you see any light reflected, or hear any sound of the blowing of the whistle or the ringing of the bell of that locomotive before you approached within about 30 feet of where you claim you stopped, and looked, and listened for the train ?
A. No, sir, I heard no sound of any kind that morning of any train; that is, of that train.
“ Q. Would you have heard those signals if they had been given within a reasonable distance ?
“A. I think I would.
Q. Well, were you listening for a train at the time that you stopped there within 30 feet of the track ?
“A. Yes, sir, I was.
Q. And I understood you to say that you satisfied your mind, after stopping there, that no trains were coming, either from the north or from the south ?
. “A. Yes, sir, I did.”

His testimony is corroborated by other witnesses who testify they were listening, and would have heard if the statutory signals had been given. Several witnesses also testified that the accident occurred at about 5 o’clock in the morning, that it was dark, and that the headlight of the locomotive was not burning. This testimony was contradicted by witnesses on the part of defendant. This presented a question peculiarly within the province of the jury. Carver v. Plank Road Co., 61 Mich. 592; Straugh v. Railroad Co., 65 Mich. 707; Crane v. Railroad Co., 107 Mich. 511; Quirk v. Railway, 130 Mich. 654; Hintz v. Railroad Co., 132 Mich. 305; Chauvin v. Railway, 135 Mich. 85; Smith v. Railroad Co., 136 Mich. 224; Thurston v. Railway, 137 Mich. 231; Herring v. City of St. Joseph, 137 Mich. 480; McVean v. Railway, 138 Mich. 263; Coffee v. Railroad Co., 139 Mich. 378; Potter v. Railroad Co., 140 Mich. 362. The circuit judge saw and heard the witnesses.

In Hintz v. Railroad Co., 132 Mich., at page 308, in discussing the duty of this court when the trial judge had refused a new trial, Justice Carpenter said:

“In exercising it, we are bound to recognize the principles which have always governed trial courts in determining whether or not verdicts should be set aside. We are also bound to bring to the support of the decision of the trial judge all reasonable presumptions which arise from his superior opportunity to determine the credibility of witnesses.”

We do not think it can be said the testimony offered on the part of the defendant overcame this reasonable presumption. See, also, Finkbinder v. Ernst, 135 Mich. 226.

A witness by the name of Cooper was allowed to express an opinion as to the speed of the train. His testimony was objected to, first, because no averment was made in the declaration of negligence; and, second, because the witness was not competent to express an opinion. Counsel disavowed any claim of damages because of the speed of the train, and it was admitted as bearing simply upon the question of whether plaintiff was guilty of contributory negligence. We will discuss this objection later in connection with the charge of the judge.

Was the witness competent to express an opinion ? He testified he had lived by the side of the railroad track four years. Had observed the speed of trains. Had ridden upon the cars. Had timed trains between stations, and had just returned from a railroad journey to and from the State of Missouri. A like question to this arose in the case of Detroit, etc., R. Co. v. Van Steinburg, 17 Mich. 99. Justice Cooley speaking for the court said:

“ The point to which the attention of the witnesses was directed was the speed of a passing object. The motion of the train was to be compared to the motion of any other moving thing, with a view to obtaining the judgment of the witness as to its velocity. No question of science was involved, beyond what would have been, had the passing object been a man or a horse. It was not, therefore, a question for experts. Any intelligent man, who had been accustomed to observe moving objects, would be able to express an opinion of some value upon it, the first time he ever saw a train in motion. The opinion might not be so accurate and reliable as that of one who had been accustomed to observe, with timepiece in hand, the motion of an object of such size and momentum; but this would only go to the weight of the testimony, and not to its admissibility. Any man possessing a knowledge of time and of distances would be competent to express an opinion upon the subject.”

See, also, Carter v. Carter, 36 Mich. 209; Grand Rapids, etc., R. Co. v. Huntley, 38 Mich. 540; Laughlin v. Railway Co., 62 Mich. 226-230; Guggenheim v. Railway Co., 66 Mich, 150; Thomas v. Railway Co., 86 Mich. 496; Keating v. Railroad Co., 104 Mich. 418; Mertz v. Railway, 125 Mich. 16. We think the witness was competent to express an opinion.

Counsel assign error because the judge in his charge to the jury used the following language:

“Now some evidence has been introduced relative to the rate of speed at which this train was traveling, The plaintiff does not ask in his declaration for damages because the train was going at an undue or unusual rate of speed. This evidence was introduced solely for this reason : The rate of speed might be a material fact in determining whether the plaintiff was guilty of negligence. It was not introduced for the purpose of showing negligence on the part of the defendant. Whether the plaintiff was guilty of negligence or not might depend to a considerable extent, possibly, upon the rate of speed which the train was traveling. I.therefore limit the effect of the evidence as to the rate of speed, to the question of con-tributary negligencethat is the negligence of the plaintiff, if they were traveling at an undue rate of speed, that, of itself, independently, would not be negligence on the part of the defendant. ”

Counsel .say:

“ While it is true that the speed at which a train is traveling may, at a crossing where the view is obstructed, or partially obstrudted, have a bearing upon the contributory negligence of the plaintiff, as showing his ability to see the train in time to get across or remain in a place of safety before it reached the crossing, and instruction which went no further than to present that question to the jury would have been proper, still, where the court, as in this case, gives the question of an undue rate of speed an important bearing upon the plaintiff’s contributory negligence where there is no evidence that the train was traveling at an undue rate of speed, and where almost any rate would have been permissible, the court goes beyond what is proper.”

We do not think the charge'is open to the criticism of counsel. There was testimony tending to show that upon a dark morning a train approached the highway crossing in a village, without giving the statutory signals, at a rate of speed of 30 or 40 miles an hour. This testimony was contradicted by witnesses on the part of defendant, who said the train was going but 16 or 18 miles an hour. ' The judge expressed no opinion as who of the witnesses was right, but said that even though they found the train was going at an undue or unusual speed, that of itself would not be negligence on the part of the defendant, and cautioned the jury that the testimony was permitted only as bearing upon the question of contributory negligence. We think there was evidence of an undue and unusual rate of speed.

It is suggested that as the plaintiff testified he did not see the train, the testimony as to its'speed was not material, and the court erred in that portion of his charge. In passing upon this question we must not overlook the contention of counsel for defendant. It is their claim here and in the court below that:

“The case is not to be distinguished from an accident occurring in the daytime. It was as late as 5:30 or 5:45 o’clock in the morning enabling dark objects to be plainly seen, and by the testimony of numerous witnesses, which can be said to be uncontradicted, it was sufficiently light to make out this train for a long distance — much more than a sufficient distance to have enabled plaintiff to at any time see the train and avoid being struck, had he looked.”

We quote further from the brief:

“ The speed of the train, as testified by those best situated to judge, and as indicated by the only competent testimony in the case, was about 18 miles per hour. With the train going at this speed, at any point between 30 feet from the track and the crossing the plaintiff might have seen it in time to have stopped, and if it was not in sight when he reached the track, he would have had time to cross without being struck.”

Counsel claimed that plaintiff was guilty of contributory negligence as a matter of law. It was the claim of plaintiff that he was not guilty of contributory negligence. That the morning was .dark and stormy. That within 30 feet of the track he stopped, and looked, and listened, and saw and heard nothing. That he continued to listen, and, as he got upon the crossing, without any warning whatever of its approach, there suddenly appeared out of the darkness and the storm the locomotive attached to a logging train running at great rate of speed, and, before he could get out of its way, he was struck. It was proper to present this claim of plaintiff as against the theory urged by defendant. As bearing upon the question of whether plaintiff did what a reasonable man would do under the circumstances, we think the testimony might be considered.

We have examined the other assignments of error, and do not deem it necessary to discuss them.

Judgment is affirmed.

McAlvay and Grant, JJ., concurred. Blair and Hooker, JJ., concurred in the result.