author:
Hooker, J. Grant, J.
      Montgomery, C. J.

text:
    JONES v. FLINT & PERE MARQUETTE RAILROAD CO.
    1* Railroads — Negligence — Defective Blocking of Frog — Liability to Employé.
    Under 2 Comp. Laws, § 6313, requiring railroad companies so to adjust, fill, or block the frogs on their roads as to prevent employes and other persons from getting their feet caught therein, it is the duty of a company (conceding the impossibility of a literal compliance with the statute) to make its frogs as nearly safe as possible; and evidence that the blocking of a certain frog was old, and worn by the flanges of the wheels, is sufficient to justify a finding of negligence on the part of the company.
    2. Same—Cause of Accident—Question for Jury.
    Plaintiff’s decedent, a brakeman on one of defendant’s trains, was killed while coupling cars. No one saw the accident, but he was found lying close to a frog. There were indications that his foot was struck by the wheel, and run over lengthwise, while eyelets of a shoe were found within three or four inches of the frog, and eyelets were missing from decedent’s shoe. Held, that the evidence was sufficient to raise a question for the jury as to whether decedent’s foot was caught in the frog.
    3. Same—Contributory Negligence—Presumption.
    Where, in an action for the death of a brakeman, there is no evidence tending to show the purpose for which he went upon the track, it will be presumed that it was for a purpose consistent with the exercise of due care on his part, rather than for one which would characterize his conduct as negligent.
    4. Same—Question for Jury.
    Plaintiff’s decedent was coupling cars, and, after throwing a switch, signaled the engineer to back up. He walked alongside the track for several feet towards a car which he was to couple to the train. He then started to cross the track, when his foot became caught in a frog which was insufficiently" blocked, and he was run down and killed. The accident occurred in daylight, and the road was smooth. The car to be coupled to the train was from 30 to 40 feet beyond the frog, and the train was backing about half as fast as a man would walk. There was some testimony tending to show that the condition of the frog could not be seen until one was close to it. Held, that whether deceased was guilty of contributory negligence in not discovering the danger and avoiding it was a question for the jury. Hooker, and Grant, JJ., dissenting.
    5. Same—Nonperformance oe Statutory Duty.
    The extent to which one may rely on the performance of a statutory duty by another, without being chargeable with contributory negligence, is discussed by the court.
    Error to Genesee; Wisner, J.
    Submitted October 2, 1900.
    Decided July 2, 1901.
    Case by Eva M. Jones, administratrix of the estate of Julian A. Jones, deceased, against the Flint & Pere Marquette Eailroad Company, for negligently causing the death of plaintiff’s intestate. From a judgment for plaintiff, defendant brings error.
    Affirmed.

      Benton Hanchett, for appellant.

      Black & Broten and B. B. Aitken {Be Vere Hall, of counsel), for appellee.
   Hooker, J.

The plaintiff’s intestate was killed upon defendant’s railroad while acting as a brakeman upon a freight train. He was engaged in coupling cars, and, after throwing the switch and signaling his engineer to back up, was seen by the engineer to go behind the car which was in motion, and disappear. Whether he started to cross the track, to walk upon the track merely, or to adjust a coupling or pin, no one knows, as he was not again seen alive. If we are to presume that he was not negligent in entering upon the track, we should perhaps conclude that he started to cross the track, as otherwise he was clearly guilty of contributory negligence, because to walk upon the track in front of the train would be careless, and entering to adjust the coupler or pin is prohibited by rule of the company known to him. He was run over and killed, and, when found, his body was in close proximity to the frog, distant about 15 feet from tho switch. It was the plaintiff’s claim that deceased caught his foot in the frog, and that the defendant was negligent in not having the frog safely blocked. It is not denied that the frog was blocked, but it is claimed that the blocking was so worn as to render the frog unsafe. The plaintiff recovered a verdict and judgment of $5,866, and the defendant has appealed. The substance of all of the testimony is in the record.

It is said that the court erred in refusing to direct a verdict for the defendant. Our statute (2 Comp. Laws, § 6313) requires "railroad companies to “so adjust, fill, or block frogs,” etc., as to prevent employés and others from getting their feet caught therein. It is contended by the defendant that this frog was as well and safely blocked as frogs of other roads, anid that it is impossible to so block a frog as to make the catching of feet in it impossible. It is urged that all that can be required is that the company use reasonable diligence and care to put and keep the frog in a safe condition, and that the flanges of the wheels will in a few days wear down any blocking so that it will be possible for feet to be caught therein. Granting that this is so, it does not justify any relaxation of diligence, but rather requires increased care to keep it renewed. If the blocking when put in was effective to prevent danger, it was the duty of the company to renew it as often as necessary, and to inspect it frequently enough to prevent its getting dangerous under ordinary conditions. This statute requires something more than to follow the custom of other roads. It is compliance with the requirement of the statute, and not with established practices, which it requires, and, while compliance with the usual custom may tend to prove diligence, it is not necessarily the test of diligence.

If it be conceded that the statute should not be so construed as to require a physical impossibility, it becomes a question of fact whether the effective blocking of frogs is an impossibility; and this is a question for the jury, under the evidence in the case. It is contended that the evidence is all one way upon that subject, but we think not. It may be that the theories of experts are not very satisfactory evidence, and the existence of one frog that, in the opinion of the witness, was safe, is not very convincing; but these constitute some evidence. At all events, it is the duty to make the frogs as nearly safe as possible, and a failure to use diligence and care in keeping them so is negligence. There is some evidence bearing upon this subject, it being shown that the blocking was old and worn by the flanges. We are of the opinion that the question of defendant’s negligence was one for the jury.

It is said there is no evidence tending to prove that ■deceased’s foot was caught in the frog. No one saw him when he was struck, but he lay in close proximity to the frog. There are indications that his foot was struck by the wheel, and run over lengthwise, while eyelets of a shoe were found within three or four inches of the frog, and ■eyelets were missing from the shoe. We think the testimony was sufficient to raise a question for the jury.

It is urged that the deceased was guilty of contributory negligence. The undisputed testimony showed that the engine and two cars stood upon the single track about 15 feet north of the switch. The deceased gave the signal to back up immediately after throwing the switch. He was then on the east side of the track, and started south towards the car to which he was to couple the train. The conductor stated that he walked eight or ten feet outside ■of the track. He was still walking on the east side of the track when the conductor last saw him. The engineer saw him disappear behind the train, as though starting to walk upon or cross the track, and, if it is to be said that his foot got caught in the frog, the inference is irresistible that in walking upon or across the track he stepped into the frog. The evidence shows that this accident occurred in daylight. The road was smooth, and, if it was necessary to cross the track, it was unnecessary to walk over the frog. The car was somewhere from 80 to 40 feet south of the frog, and the only testimony upon the subject shows that the train was backing very slowly,—about half as fast as a man would walk. The frog is a large object, plainly discernible, and deceased was necessarily aware of its proximity. If he looked he must have seen it, and, if merely crossing the track, h¿ had nothing to do but to observe where he was going at that time and the condition of the frog. The only reason given for his attempting to cross the track was that he might change the lever of the automatic coupler upon the stationary car, 30 or 40 feet south of the frog. Defendant’s counsel calls attention to rule 602, with which the deceased should have been, and probably was, familiar. It provides:

“Entering between cars and engines in motion, to couple or uncouple them, should never be done except under favorable conditions, such as a low rate of speed, absence of frogs, switches, guard-rails, etc., and where good footing can be obtained, and then only when necessary.”

It is claimed that this rule does not apply to this case, because the act of the intestate, in attempting to cross the track in front of an approaching car, was not “ entering between cars in motion to couple or uncouple them.”’ We think that crossing a track after throwing the switch is not prohibited by the rule, although it be done in front of the advancing train. That would not necessarily be “entering between cars in motion to couple or uncouple.’’ It might or might not be negligent, but that is another thing. The rule does not prohibit it. There was therefore no occasion for proof as to the custom about crossing the track after giving the signal, but it was properly offered in view of the claim by defendant’s counsel that thus crossing the track was against the rule.

While we should have no hesitancy in holding that entering upon the track, under the circumstances shown, to walk in front of the moving train to the stationary car, where the coupling was to be made, would be contributory negligence, and that an attempt to adjust the coupler or pin while the car was in motion is prohibited by the rule, a custom to disregard which is not shown, there is no proof tending to show his purpose in going upon the track. There is therefore a presumption against his going there for a purpose which the law would condemn as negligent, and therefore the assumption that he started to cross the track is justified, and this appears to have been the theory upon which the case was tried. Mynning v. Railroad Co., 64 Mich. 102 (31 N. W. 147, 8 Am. St. Rep. 804); Underhill v. Railway Co., 81 Mich. 43 (45 N. W. 508); Matta v. Railway Co., 69 Mich. 109 (37 N. W. 54). The case must turn, therefore, upon the propriety of leaving the question of contributory negligence to the jury.

The most favorable view that can be taken for the plaintiff is that, in crossing the track, the deceased unguardedly stepped upon the frog, and got his foot caught, and that the car came upon him before he could escape. Can we say as a proposition of law that he was negligent in stepping on the frog? In the absence of any law requiring the blocking of frogs, and of a practice of that kind, we should not be justified in permitting the question to go to the jury, for frogs are proverbially places of danger. It seems to be conceded by every one that a frog is a dangerous thing under any conditions, and no one should know it better than railroad men. If the tendency was for the blocking to become worn, who would know it better than brakemen ? Mr. Bailey, in his work on Master’s Liability (page 163), says:

“In performing the duties of his place, he is bound to take notice of the ordinary operation of familiar natural laws; and to govern himself accordingly. If he fails to do so, the risk is his own. He is bound to use his eyes to see that which is open and apparent to any person using his eyes; and if the defect is obvious, and suggestive of danger, knowledge on the part of the servant will be presumed, as well as when the dangers are the subject of common knowledge.”

This authority, and a number of cases decided by this court, sustain the proposition that one who works about a railroad, and knows its dangers, must be attentive to them, and look before entering between cars or in front of a train. Not only is that doctrine applied to employes, but to wayfarers when crossing a railroad. This accident occurred in daylight. The frog was an object three or more feet in length, and he was walking directly towards it. Its condition was readily discernible in time to have avoided it. We may take judicial notice of this fact. The witnesses do not agree about it, some saying its condition could be seen rods away, while one said that a person would have to be right up to it before he could see whether the blocking was safe. Granting, even, that version to be true, there was then no necessity of stepping upon it, and we have held that one who knowingly goes between moving cars to couple or uncouple in close proximity to a split switch is guilty of contributory negligence. Grand v. Railway Co., 83 Mich. 564 (47 N. W. 837). In the cases of Ashman v. Railroad Co., 90 Mich. 567 (51 N. W. 645), and Eastman v. Railway Co., 101 Mich. 597 (60 N. W. 309), it did not appear that the injured persons attempted to work between cars, knowing of the proximity of frogs. In those cases there was no opportunity for the brakemen to see where they were to step, or to tell when they were approaching switches or frogs. Here there was an unobstructed view for 30 feet or more. It was as easy to avoid the frog as to step upon it. Its presence was a menace. Like the presence of a railroad, it was significant of danger. Matta v. Railway Co., 69 Mich. 109 (37 N. W. 54); Kwiotkowski v. Railway Co., 70 Mich. 549 (38 N. W. 463). The legislature had made a drastic law with reference to frogs, thus publishing to the world that, unprotected, they were dangerous places. The difficulty of making it safe to step upon a frog must have been known to him. Thó dangers of this service are so great that federal legislation has been invoked to make it unnecessary to go between cars to couple and uncouple by providing automatic couplers. At enormous expense the railroads have provided these appliances. They were upon these very cars. In the case before us it is insisted that a man may heedlessly walk over the most dangerous part of a railroad track when it is unnecessary, and with 30 or more feet of clear track intervening and offering a comparatively safe route, and may recover damages upon the theory that he is not negligent in stepping into the frog.

That the deceased knew of the proximity of a frog cannot be doubted. He had every reason to know and understood the undisputed fact that wooden blocking would necessarily wear down, and make the catching of a foot possible, in a short time, and he knew the custom on the road regarding the repairing or replacing of blocking; and it does not admit of dispute that he was walking towards the frog, and had ample opportunity to see that it was unsafe, if he could be excused from stepping upon it without knowing it to be safe. There seems to be an impression that the somewhat stringent law requiring safe blocking in some way relaxes the requirement for care upon the part of those walking upon the track, upon the theory that they may assume that the company at all times will keep the frog so blocked that the foot cannot be caught, and that it is therefore safe to walk upon. But this is not so. There would be as much propriety in assuming that the bell will always be rung or whistle blown before crossing a highway; yet a failure to stop and look and listen constitutes contributory negligence, although these statutory signals are omitted. And the omission of a statutory duty is no greater or better evidence of negligence than an admission of a defect, and an omission to perform a promise to remedy it; yet such promise does not relieve one who, acting under such promise, attempts an obviously dangerous act.- The law has fixed the penalty for a failure to block frogs, and it is not that a plaintiff be relieved from the doctrine of contributory negligence. It is held in many cases that masters should furnish safe tools and appliances; yet one is not excused who knowingly uses dangerous implements, even where the master has promised to remedy the defect. In Fisher v. Railroad Co., 77 Mich. 546 (43 N. W. 926), it was held that failure to provide means of rescuing one, engaged in dangerous employment, from drowning, did not create liability, where the danger and absence of such means were obvious. So, in Manning v. Railway Co., 105 Mich. 266 (63 N. W. 312), it was held that an employé knocked from a car by a tree, in close proximity to the track, could not recover. The same was held in Pennington v. Railway Co., 90 Mich. 505 (51 N. W. 634), as to an accident from the proximity of a shed, and in Illick v. Railroad Co., 67 Mich. 632 (35 N. W. 708), from contact with a bridge. In Melzer v. Car Co., 76 Mich. 94 (42 N. W. 1078), one injured by a grindstone was not allowed to recover, because the , danger was obvious. See, also, Powers v. Lumber Co., 92 Mich. 533 (52 N.W. 937), and Michigan Central R. Co. v. Austin, 40 Mich. 247, where a brakeman was thrown from a footboard while changing his lantern from one hand to the other, owing to the roughness of the road, with which he was presumed to be familiar.

In Kean v. Rolling Mills, 66 Mich. 277 (33 N. W. 395, 11 Am. St. Rep. 492), obedience to an order was not allowed to excuse an employé who incurred a visible danger. In Batterson v. Railway Co., 53 Mich. 125 (18 N. W. 584), it was said that an employé assumes dangers open to observation, and must use reasonable care in examining his surroundings. In Soderstrom v. Lumber Co., 114 Mich. 87 (72 N. W. 13), it was held that, where danger was open and visible and known, there would be no liability, and, where the undisputed testimony showed this, the question was one of law. See, also, Rohrabacher v. Woodward, 124 Mich. 125 (82 N. W. 797); Mynning v. Railroad Co.; 64 Mich. 93 (31 N. W. 147, 8 Am. St. Rep. 804); Kwiotkowski v. Railway Co., 70 Mich. 549 (38 N. W. 463); Matta v. Railway Co., 69 Mich. 109 (37 N. W. 54). In Ragon v. Railway Co., 97 Mich. 274 (56 N. W. 612, 37 Am. St. Rep. 336), it was said that an employe may continue to use defective appliances, and by so doing with knowledge he assumes the risk attendant thereon, and, moreover, he must be alert to inform himself of existing conditions, and. cannot shelter himself behind unjustifiable ignorance; that actual ignorance is not enough to relieve him, hut it must be excusable ignorance. See, also, Secord v. Railroad Co., 107 Mich. 540 (65 N. W. 550). Balhoff v. Railroad Co., 106 Mich. 611 (65 N. W. 592), admits the doctrine that obvious dangers are assumed. Hayball v. Railway Co., 114 Mich. 135 (72 N. W. 145 ), holds that using a defective machine after protest may constitute contributory negligence; and Gavigan v. Railway Co., 110 Mich. 71 (67 N. W. 1097), holds that one who knowingly does a dangerous act cannot escape the rule of contributory negligence by showing a command to perform the act from a superior. See, also, McDonald v. Railway Co., 108 Mich. 12 (65 N. W. 597); Lamotte v. Boyce, 105 Mich. 547 (63 N. W. 517).

These authorities negative the proposition that neglect to comply with a statute has any effect upon the doctrine of contributory negligence, except to the extent that it may justly and reasonably be said to justify a relaxation of care and diligence upon the presumption that a statutory duty will be performed. Railroad companies owe careful compliance, not only with statutory duties, but with all other lawful duties; and, on the other hand, employés owe diligence and care to avoid the dangers which are obvious. A frog is a menace, and, before stepping upon it, should at least be examined by a glance, where there is no excuse for omitting such ordinary precaution. We think it clear that, if this unfortunate man did get his foot in the frog, it was due to his own carelessness in not seeing or not avoiding it, and that the judge should have so instructed the jury.

The judgment should be reversed, and a new trial ordered.

Grant, J.

I concur in the result reached by my Brother Hooker.

Montgomery, C. J.

Having determined that there was evidence for the jury that defendant had failed to comply with the terms of the statute, and that there was also testimony tending to show that the custom of the company permitted deceased to occupy the position he did relative to the moving car, the question is presented whether the circumstances were such as to show, in and of themselves, that the deceased was guilty of contributory negligence as a matter of law. There was testimony tending to show that a person could not see whether the blocking was safe until he was right up to it. One witness testified, “As to looking at that blocking in passing-over it, it didn’t look like a block in which one’s foot would be caughtand he further testified that ‘ ‘ you would have to get right up to it in order to see whether or not your foot would catch in there if you stepped on it.”' Assuming this to be true, can we say, as a matter of law, that the failure to detect this defect when deceased approached the frog was negligent? It is to be kept in mind that the statutory duty of the company was to so adjust, fill, or block frogs as .to prevent employ és and others from getting their feet caught therein. Was it negligent to assume that" such duty had been performed, and that the frog was no longer the place of danger which it had formerly been ? To so hold is to emasculate the law, or, at least, to relieve the company from any responsibility for injuries occurring in daylight; for a case is not likely to arise in which it can be shown that a careful and minute inspection of the frog would not reveal the defect, if any, in the blocking.

But this is not the -only result of holding that, such a defect being open to discovery by close inspection, the, injured party must be held to have taken the risk. Analogous situations are likely to arise in a multitude of cases. To illustrate: The highway law requires that streets should be kept in reasonable repair. Suppose a defect in the way, of which the pedestrian had no previous knowledge, but which he might have seen had his attention been directed to the precise point at tbe precise time he approached it; are we prepared to say, as a matter of law, that one who receives an injury at such a place is guilty of contributory negligence ? Such is not the law. Pettengill v. City of Yonkers, 116 N. Y. 558 (22 N. E. 1095, 15 Am. St. Rep. 442); Beach, Contrib. Neg. § 246a.

In this case the deceased was not in a situation which admitted of his giving his undivided attention to the track. He was under the necessity of watching the approaching car. This he was as much bound to do as he was to note the ground he was walking over. Indeed, the duty was more imperative, for the approaching car was a known danger; a frog so blocked “as to prevent employes getting their feet caught therein ” was no danger at all. This is the only character of frog that deceased had notice of, as matter of law, and I think it cannot be said that he was guilty of negligence in not discovering the breach of duty by defendant. I have no criticism to pass upon the holdings in the cases cited, in which an employe is held to have assumed the risk of defective blocking, where it appears that he knew of the fact in advance. This record does not present such a case.

The judgment should be affirmed.

Moore and Long, JJ., concurred with Montgomery, C. J.


source: Caselaw Access Project

author: Montgomery, C. J. Grant, J.

license: Public Domain

text:
    McCURDY v. SCHOOL DISTRICT NO. 1 OF WEST BRANCH TOWNSHIP.

    School-District Bonds—Delivery.

      The defendant school district voted to raise by bond $3,500 to enlarge its school building. At a meeting of the school board, one F., its assessor and treasurer, a member of a banking house, offered to correspond with M. and others for a sale of the bonds. To this the board assented. F. wrote M., informing him what the district had done, and solicited a bid. M. replied by letter, making an offer, which was submitted to the board, and accepted. July 5th, M. sent F. a check for $3,535. Being informed by return mail that this was not sufficient, he sent balance July 7th. The board was informed that F. had received the money. F. deposited the money in his bank under an account styled “Bond Account.” These bonds, and others amounting to $6,300, which were also purchased by M., constituted the only bond account F. had in the bank. Some time before July 12th the bonds were duly signed, and delivered to F. for delivery to M, M. had written F. to hold the bonds, when received, subject to his order. F.’s bank failed July 22d. The money received from M. was gone, and the bonds were found in the bank, and on the day after the failure were handed by F.’s assignee to the school district. Held, that the bonds were duly delivered, and that, as between two innocent parties, the school district must suffer. Montgomery, G. J., dissenting on the facts.
    Appeal from Ogemaw; Kelley, J., presiding.
    Submitted December 6, 1900.
    Decided July 2, 1901.
    Bill by Hugh McCurdy against school district No. 1 of the township of West Branch, Casper L. Nauman, Leander A. White, Myron H. French, Fannie A. Clark, and Curtis J. Winslow to compel the delivery of certain bonds. From a decree for complainant, defendant district appeals.
    Affirmed.

      Hall & Brockway (Benton Hanchett, of counsel), for complainant.

      Simonson, Gillett & CourtrigM (Watts S. Humphrey, of counsel), for appellant.

       Rehearing denied November 4, 1901.

       Head-note by Grant, J.

   Montgomery, C. J.

(dissenting). The question to be determined in this case is, Which one of two innocent parties shall suffer through the default of a third párty ? The bill is filed to compel the delivery to complainant of bonds amounting to $3,500, for which complainant claims to have paid. In the summer of 1898, M. H. French was assessor of the defendant school district, and also a member of the banking firm of M. H. French & Co. M. H. French & Co. became insolvent July 22, 1898. On June 11, 1898, the school board determined that it was necessary to enlarge the school building, and called a meeting of the electors, who, on June 18th, voted to issue bonds for $3,500. On June 21st the board met at French’s bank, determined that the proposition to issue bonds had been duly adopted, and appointed trustees Nauman, Winslow, and White a building committee, to supervise the work of making the enlargement. At this meeting French volunteered to correspond with different institutions and persons, to see if he could make a sale of these bonds, and on what terms. At the sanie time another member of the board—defendant White—volunteered to see that the other local bank should also make inquiries for the same purpose. The same day, French opened a correspondence with complainant, asking the latter if he could handle the $3,500 bonds, and also an issue of $6,000 of bonds which he expected would be refunded. McCurdy did not know that French was a member of the school board, and the correspondence was carried on by French in his private capacity, as a member of the banking firm of M. H. French & Co. McCurdy wrote that he could handle all the bonds, asked French to help him in getting-them, and offered to pay French for his services in so doing. During the course of the correspondence, French was very active in advising and assisting McCurdy, and received a check for $25 for his services.

The result of the correspondence was that McCurdy made an offer, which French submitted for him to the board, and which they accepted. The offer was in writing, and stated that French was authorized to represent McCurdy in negotiating for the bonds. McCurdy still knew nothing of the fact that French was a member of the school board. The bill of complaint states that he had no knowledge of this until the 27th of July,—a month later. The resolution accepting McCurdy’s offer, which was passed at a meeting of the board held on June 30th, provided that “the moderator, director, and assessor be, and they are hereby, authorized and directed to issue the $3,500 in bonds, * * * and deliver the same to said Hugh McCurdy, on receiving from him the said sum of $3,500, with one-half of one per cent, premium.” At this same board meeting on June 30th, steps were taken to submit the proposition to refund the $6,000 bonds to the electors of the district at the annual meeting held on July 11th. This was done, and the proposition adopted. The board thereupon met on July 12th, and passed a resolution providing that “the moderator, director, and assessor be, and they are hereby, authorized to issue new bonds, * * * and deliver the same to Hugh McCurdy,” etc., as above. Steps were at once taken to prepare the bonds. McCurdy had meanwhile written several letters to French, asking when the bonds would be ready. On July 5th he sent French a check for $3,535; on or about July 7th a check for $140, to make up the premium due; and on July 10th a check for $6,300. On receipt of the latter, French wrote that the director had the new bonds nearly ready. The checks so received were credited on the books of M. H. French & Co. to an account called “Bond Account,” which was opened for this purpose. There was already an account on the books in the name of M. H. French, assessor, to which were credited all amounts held by French in his official capacity. None of this last fund was ever drawn out by check. It was only paid out on warrants signed by the moderator and assessor. None of the sums received from McCurdy ever appeared in this last account.

A few days before the board voted to refund the $6,000 bonds, French wrote to complainant, suggesting that he could get a 6 per cent, investment for his $6,000 at once by taking the bonds that were to be refunded, and holding them until the new bonds were issued. These bonds were held at that time by the Wayne County Savings Bank, of Detroit. Complainant adopted the suggestion, and sent French the $6,300 check for the purpose of making this arrangement. .French himself did not write to the Wayne County Savings Bank in regard to the matter, but asked defendant L. A. White, who was director of the hoard, to do so, at the same time giving him a draft for $6,351.84, which was the amount due the Wayne County Savings Bank. White did as directed, and the old bonds were sent to him from Detroit. This transaction between French and White was a personal, and not an official, matter. The board had taken no action authorizing it. It was not arranged by White, but was entirely at French’s solicitation, and in order to carry out his promise to McCurdy. All this was done by Mc-Curdy’s direction, for his benefit, and .because all the parties expected, as a matter of course, that the bonds would be refunded. The $6,351.84 was charged on French’s books to the bond account. No entry in regard to it appears in any of French’s official accounts or reports as assessor.

At some time between June 30th and July 14th, the director prepared the forms for both issues of bonds, signed them himself, and left them at French’s bank, to be signed by the moderator, defendant Nauinan.’ The two issues of bonds were in separate packages, rolled up, and covered with paper. They were left with the clerk at the bank at different times, but French paid no particular attention to them, did not know when they came to the bank, and did not open the packages. The $3,500 bonds were left at the bank shortly after June 30th. The $6,000 bonds were left there on the 14th of July. On the 14th of July—the date on which the $6,000 bonds were left at the bank to be signed—French’s clerk notified him that there was a roll of bonds there for Nauman to sign. French did not open the bundle, or examine them, but told his clerk to take them out, and have them signed by Nauman. He did so, and on his return the package was put in the vault, still unopened and unexamined by French. This roll in fact contained the $6,000 bonds. But French supposed that they were the other issue, and therefore wrote to McCurdy on the same day that the $3,500 bonds were ready. He did not know at that time that more than one package of bonds had been left at the bank, and, supposing that the $3,500 issue would be left there first, wrote McCurdy that the others were not yet completed. A few days later, French saw another package of bonds on the clerk’s desk. These were in fact the' $3,500 bonds, which had been left there some time before, but French supposed them to be the $6,000 bonds, and so refers to them in his testimony. French did not examine this package, but was merely told by the clerk that it contained bonds. Supposing that they were fully executed, he told the clerk to put them in the vault with the others. He had no definite idea when or by whom they had been left at the bank, and asked no questions of the clerk, but took it for granted that they were the $6,000 issue, fully completed. He did not send any further notice to McCurdy. He had not told the school board that he had the money for the $3,500 bonds, and neither White nor Nauman knew of it, as the evidence impresses me.

On July 22d, 'while matters were in this condition, French closed his bank, and confessed his insolvency. The bank was placed in charge of a trustee for certain creditors. The bonds were taken out of the vault, taken to French’s house, and there delivered to White. When White opened the packages, he found both issues of bonds, but claims that the $3,500 issue were still unsigtíed by the moderator, and that they were not signed until July 23. The $6,000 bonds were afterwards delivered to complainant, but the board refused to deliver to him the $3,500 bonds, on the ground that neither the school district nor any of its officers or agents had received payment therefor.

It was a controverted question of fact on the trial in the court below whether the $3,500 bonds were signed by the moderator before the failure. The complainant and his solicitor, Hon. De Vere Hall, testify that on the 27th day of July the moderator, Nauman, admitted to them that these bonds were signed before July 11th. Nauman disputes this, and both he and the director testify that the $3,500 bonds were received by the director, Mr. White, from the trustee of the bank, on the 22d of July, and that they had not then been signed by the moderator; that they were taken in this state to the office of Mr. White, and, on the 23d, were signed by Mr. Nauman, in White’s office. This testimony is corroborated by another witness. If the case were to turn upon this question of fact solely, I should hesitate to say that the conclusion of the circuit judge, who saw the witnesses, and who found in favor of complainant, should be overturned. But there are other reasons, which are to me decisive, why I am unable to find that these bonds were delivered to take effect prior to the' failure. There can be no doubt that the money, when first received by French, was„,received by him as the agent of complainant. Had the school district been an individual, and had the money been paid over by French before receiving the securities, there can be no doubt that French would have been liable to his principal. It is equally clear that, if French had attempted, when he first received the money, to appropriate it to the school district, he would have violated his duty to his principal. It was not contemplated by complainant that the money should find its way into the hands of the district until the bonds were delivered. French deposited it in a bank in which he was, it is true, interested, in a fictitious or suspense account called “Bond Account.” This, clearly, did not make it school-district money. The funds remained in that account until the failure. No steps were taken to withdraw the money from this banking firm. Not even a book transfer was made. How, then, can it be said that it was paid to the school district? The delivery of the bonds as obligations of the district was not authorized except on receipt of the money by French as assessor. He never received the money in that capacity, and the bonds never became an obligation of the. district.

The decree should be reversed, and the bill dismissed, with costs of both courts to defendant.

Grant, J.

I think there are two important questions of fact in this case upon the answers to which the result largely depends, viz.:

1. When were the bonds for the $3,500 signed and delivered to Mr. French?

2. Had defendant school district, through its officers, information that its assessor, French, had received the money from complainant with which to pay for these bonds ?

There is a sharp conflict of testimony upon the first question. The circuit judge evidently found that these bonds were delivered to French before the 12th of July. I think this is the correct conclusion. Complainant and Mr. De Vere Hall both swear positively that in their interview with Mr. Nauman, the moderator, on July 27th, Mr. Nauman told them that these bonds were executed and delivered to Mr. French before the 11th of July. Mr. Hall took a memorandum of that conversation in the presence of Mr. Nauman and complainant. Mr. White, the director, testified that he had made out and signed the bonds the first part of July, and left them with Mr. French. The testimony of Mr. White and Mr. Nauman is in direct conflict upon one point: Mr. Nauman testiiied that he left West Branch on the morning of the 19th and returned on the 23d of July; that he asked Mr. White, before leaving, if these bonds for $3,500 were ready for him to sign; and that Mr. White told him “he was too busy that morning, and that they were ■not completed.” According to Mr. White’s testimony, he had signed the bonds, and left them with Mr. French, the assessor, to procure Mr. Nauman’s signature. Mr. French sent a package of bonds, during the early part of July, to Mr. Nauman to sign. The witness (one Quackenbush) who took them to Nauman testified that it might have been 10 or it might have been' 20 days before the failure of M. H. French & Co. They were signed and returned. If a package of bonds was sent before the middle of July to Mr. Nauman to sign, it was these bonds.

It could not have been the other issue, because the voters ■of the district did not vote to issue those until the evening of July 11th, the board did not authorize them until the meeting of the 12th, and on July 14th French wrote complainant that the bonds for the $6,000 were being made out by the school officers. Mr. Nauman testified that he told complainant and Mr. Hall that he, signed the bonds for the $3,500 on the 23d of July. If he signed bonds upon that day, I think it a fair deduction that he is now mistaken, and that it was the $6,000 bonds that he signed.-

I think the second question must be answered in the .affirmative. Mr. French testified that he advised the board as early as July 12th that he had the money, not only for these bonds, but for the others. It was natural that he should do so, and that they should inquire, for they were in haste to get the money. The board knew that he had the money for the other bonds, for Mr. White, the director, obtained a draft for their purchase from Mr. French, and had the old bonds in his possession at the time the bank failed.

The situation, then, is this: Mr. French was the assessor of the district, the proper custodian of its funds, and the officer authorized to receive the funds belonging to it. He was authorized by the district to solicit bids for the purchase of these bonds. He wrote complainant, not on behalf of M. H. French & Co., but as an individual, informing him of the proposition of the board to issue these bonds, and solicited him to bid. He made a bid. It was submitted to the board, was accepted, and the bonds directed to be delivered upon the receipt of the money. It was the understanding of all members of the board that the money would come into the hands of Mr. French as assessor. Mr. Nauman testified, “I considered it French’s work to look after those bonds,—to get the money from McCurdy on the bonds.” Mr. White, thp director, testified that he expected Mr. French to receive the money; that he knew it was his place to receive it. If Mr. French was acting as agent of complainant, he was also acting as the agent for the defendant. The defendant knew the dual capacity in which French was acting, while complainant did not. The bonds were delivered, then, to Mr. French, not as the agent for the school district, but as the agent of complainant, to hold subject to his order, provided he had the money. He did have the money. He had deposited it in the bank where the defendant kept its account and deposited all its funds. In my judgment, it makes no difference that he had seen fit to enter it in a suspense account called “Bond Account.” If that was the account of any particular party, it was the account of the district; it was not an account yvith the complainant. I am unable to see that the result would have been any different if Mr. French or the banking house of French & Co. had caused this amount to be transferred to the account of Mr. French as assessor. .Probably neither complainant nor defendant knew of entering this money under the head of “Bond Account.”- The bonds were in the bank under the instructions from complainant to French to hold them for him subject to his order. They were not, then, in his possession for the district. The money was. The district knew, as already stated, that French was acting as their agent, as well as complainant’s. They knew, or should have known, the difficulties that might arise upon questions of delivery and agency. It was in their power, and therefore their duty, to see that the business ivas so conducted as to leave no doubt in regard to the transaction. It was not tho duty of complainant, for he had no knowledge that French was acting for the district as well as for himself. As between two innocent parties, the district must suffer.

The decree is affirmed.

Hooker, Moore, and Long, JJ., concurred with Grant,. J.


author: Moore, J. Grant, J.

text:
    DETROIT, FT. WAYNE & BELLE ISLE RAILWAY v. COMMISSIONER OF RAILROADS.
    Railroads—Street Railways—Crossings—Safety Appliances —Construction—Apportionment of Expense.
    Under Act No. 171, Pub. Acts 1893, §5(2 Comp. Laws, § 6353), authorizing the commissioner of railroads to require proper safeguards to be provided at crossings of railroads and street railroads, and to apportion the expense between the companies affected as he may deem just and reasonable, where a steam-railroad company has constructed its tracks across an existing street-car line, and subsequently, owing to the increase of travel on the street and the increased use of the railroad, the erection and maintenance of safety appliances at the crossing becomes necessary for the protection of the public, the railroad commissioner may require the street-railway company to pay a portion of the expense of constructing and maintaining such appliances. Grant, J., dissenting.

      Mandamus by the Detroit, Ft. Wayne & Belle Isle Railway to compel Chase S. Osborn, commissioner of railroads, to vacate an order requiring relator to share the expense of constructing and maintaining safety appliances at a railroad crossing.
    Submitted January 9, 1901.
    Writ denied July 2, 1901.

      Brennan, Donnelly & Van De Mark and Henry E. Bodman, for relator.

      Horace M. Oren, Attorney General, for respondent.
   Moore, J.

The following statement of facts is taken from tbe brief of counsel for relator:

“ The petition and answer filed in this cause set out as briefly as practicable the facts in the case. In substance, they are that petitioner owns a line of street railway in Detroit, authority to construct and operate which was granted in 1865. In the following year the railway was built, forming a continuous line west on Fort street to Clark avenue, south on Clark to the River road, and then west again on the River road. At the time tho track was constructed on Clark avenue, there was no railroad, or highway, street, lane, or alley, or crossing of any kind, over Clark avenue between Fort street and the River road. In 1882 or 1883 the Wabash Railroad constructed a single track across Clark avenue and across petitioner’s tracks. Up to that time there had been no crossing over Clark avenue between Fort .street and the River road of any kind,—either that of a railroad, or a public highway, a private way, road, street, or alley. In .the year 1893 or thereabouts the Union Station was opened at the corner of Third and Fort streets, in Detroit; and since that time said station has been used jointly by the Wabash, the Detroit, Lansing & Northern, the Flint & Pere Marquette, the Detroit & Lima Northern, and the Canadian Pacific Railroads as a terminal point, the tracks over Clai’k avenue at this point having been increased from one to three to accommodate the increased traffic. These tracks are used as approaches to the Union Station, and incoming and outgoing trains and cars of all the foregoing roads, except the Canadian Pacific Railroad, pass over said tracks. There are 38 regular daily passenger trains crossing Clark avenue upon these tracks. Besides this, the Canadian Pacific uses the station as an Eastern terminus, connecting with the other roads for purposes of through east and west traffic.

“In 1893 the legislature passed an act (No. 171) which provides (section 5) that:

“‘The commissioner of railroads shall * * * examine the crossings of the tracks of railroads and street railroads then existing, and order such changes made in the manner of such crossings, or such safeguards for protection against accidents to be provided thereat, as in his judgment ought to be so made or provided; and shall apportion any expense incident thereto between the companies affected as he may deem just and reasonable.’

“ Claiming authority under this act, the respondent has ordered the construction of certain safety devices, and apportioned the expense between the Terminal Association and the Ft. "Wayne & Belle Isle Railway Company. Petitioner must bear whatever expenses can properly be imposed upon the Ft. Wayne & Belle Isle Railway Company.”

The petition in this case is filed for the purpose of having the order set aside. The answer alleges that, if the street-railway tracks were not constructed in said street,—

“And did not cross the tracks of the said steam railroad, the said safety appliances so ordered as aforesaid would not be required or necessary in the manner in which the order provides they shall be constructed and maintained; that, though the safety gates provided for in such order are designed specially for the protection of the general public traveling on said highway from danger resulting from the said steam railroad, still the derailing and signaling appliances are intended to protect the traveling public on both electric and steam roads from collision at the crossing of the two roads, and that the necessity for the said safety devices results equally as much from the existence and presence of the petitioner’s tracks as from the presence of the tracks of the Union Terminal Association.”

Counsel for the relator in their brief say;

“There are a number of important questions involved in this controversy, one being the extent of the authority of the railroad commissioner oyer street-railway companies. We feel it necessary, however, to suggest only one of these questions, because the adjudication thereof in the manner we anticipate will render a consideration of the others unnecessary. We call attention to the fact, fully set out in the petition, that the necessity for the order of the railroad commissioner; if any there be, is due to the construction of the Terminal. Association’s tracks after petitioner’s tracks were laid. The danger is not caused by petitioner, nor due to its presence in the street. Under the well-settled rule of this.court, the cost of making the crossing safe must be borne by the company making the crossing and responsible for the danger. In People v. Railway Co., 52 Mich. 277 (17 N. W. 841), it was decided that a statute requiring a railroad company to bear the expense of constructing and maintaining a crossing for a highway, which was laid out after the railroad was built, was unconstitutional and void. The court said that, ‘as far as the same can be reasonably accomplished, it [the crossing road] shall reduce the inconvenience occasioned to the public by its own peculiar mode of enjoyment to a minimum. But when the reason ceases, the right of interference must cease. ’ And it was held that the railroad could not be made to bear the expense of crossing, because it was ‘not a contrivance which the existence of the railroad renders necessary, and which otherwise would be needless.’

“In Chicago, etc., R. Co. v. Hough, 61 Mich. 507 (28 N. W. 532), it was said:

“ ‘ If a railroad interferes with an existing highway, it must bear all the expense of crossing and restoring the highway, as far as practicable, to safe condition. * * * But, as pointed out in People v. Railway Co., 52 Mich. 277 (17 N. W. 841), when a new highway is created, then it belongs to those who create it to bear the expense of making the crossing in the condition necessary to meet all the expense and danger which it occasions.’

‘ ‘ The danger which the commissioner wishes to guard against not being in existence before the railroad crossing was constructed, it belongs to the Union Terminal Association, which created it, to ‘ bear the expense of making the crossing in the condition necessary to meet all the expense and danger which it occasions.’ The same principle is recognized and enforced in the following cases: City of Grand Rapids v. Railroad Co., 58 Mich. 647 (26 N. W. 159); Commissioners of Parks & Boulevards of Detroit v. Michigan Central R. Co., 90 Mich. 385 ( 51 N. W. 447); Same v. Chicago, etc., R. Co., 91 Mich. 291 (51 N. W. 934); Same v. Detroit, etc., R. Co., 93 Mich. 58 (52 N. W. 1083); City of Grand Rapids v. Bennett, 106 Mich. 528 (64 N. W. 585 ); Gage v. Township of Pittsfield, 120 Mich. 436 (79 N. W. 687); Flint, etc., R. Co. v. Detroit, etc., R. Co., 64 Mich. 350 (31 N. W. 281).”

An examination of these cases will show they were all cases where it was sought to obtain a right of way either for a railroad across a highway, or for a highway across a railroad, or a crossing for one railroad over the right of way of another; and none of the cases relate to the question involved here, as to who shall bear the expense of additional safeguards ordered upon roads which have crossed each other for a long period of time. An examination of the cases will also disclose that, in proceedings by one road for a right of way over another, there are some inconveniences and burdens which must be borne by the senior road for which it is not entitled to compensation from the junior road. In the case of Flint, etc., R. Co. v. Detroit, etc., R. Co., 64 Mich. 350 (31 N. W. 281), the former company sought to obtain a right of way over the railroad track of the defendant company. The commissioners allowed only $100 for the land taken and the consequential damages. The defendant company gave evidence tending to show that it would suffer a yearly expense, as the result of establishing the crossing, of $50 cost of maintaining signals, $425 cost of watchman, and $300 cost of stopping trains, and claimed the allowance made by the commissioners was grossly inadequate; but the court declined to disturb it. In discussing the question, Justice Champlin used the following language:

“ The question as to what elements of damages should enter into and form a basis of an award when one railroad crosses another has been before the courts of some of our sister States; and, while the decisions have not been entirely uniform, the principles underlying them all point to an allowance which shall secure a just compensation within the recognized rules of ovidence relating to damages, as including all loss or injury which is the direct result of the appropriation of the land to the new use. They also recognize that there are elements of damáge which, aside from being uncertain, remote, or conjectural, are the consequence of regulations by the legislature designed to-secure the safety of the public, which are imposed upon all railroad companies alike, and which, in so far as they do not involve any structural change in the property itself in order to make it conform to the new condition, do not afford a basis for compensation.

“The result of the decision in Massachusetts was announced by Mr. Chief Justice Gray in Massachusetts Central R. Co. v. Boston, etc., R. Co., 121 Mass. 124, tersely, as follows:

“ ‘A railroad corporation, across whose road another railroad or a highway is laid out, has the like right as all individuals or bodies politic and corporate, owning lands or easements, to recover damages for the injury occasioned to its title or right in the land occupied by its road, taking into consideration any fences or structures upon the land, or changes in its surface, absolutely required by law, or in fact necessary to be made by the corporation injured, in order to accommodate its own land to the new condition. Com. v. Railroad Co., 3 Cush. 25, 53; Old Colony & Fall River R. Co. v. Inhabitants of Plymouth Co., 14 Gray, 155; Grand Junction R. & Depot Co. v. Middlesex Co. Com’rs, Id. 553. But it is not entitled to-damages for the interruption and inconvenience occasioned to its business; nor for the increased liability to damages from accidents; nor for increased expense for ringing the bell; nor for the risk of being ordered by the county commissioners, when in their judgment the safety and convenience of the public may require it, to provide additional safeguards for travelers crossing its railroad. Proprietors of Locks & Canals v. Railroad Corp., 10 Gush. 385, 392; Boston, etc., R. Corp. v. Old Colony R. Corp., 12 Cush. 605, 611; Same v. Old Colony & Fall River R. Corp., 3 Allen, 142, 146; Old Colony & Fall River R. Co. v. Inhabitants of Plymouth Co., 14 Gray, 155.’

“ In Illinois the principle was laid down in the case of Chicago, etc., R. Co. v. Englewood Connecting R. Co., 115 Ill. 375 (4 N. E. 246, 56 Am. Rep. 173, 23 Am. & Eng. R. Cas. 56), founded upon the manifest fact that the value of a railroad property, outside of the advantages of location and amount of business it controls, consists in the strength, permanency, and durability of its structures, and its adaptability to and capacity for doing railroad business, ‘ that, whenever the proposed condemnation and subsequent user will injuriously affect such a property in either of these respects, the injury thus occasioned will form a proper basis for the assessment of damages in a proceeding of this kind.’ In this case the court on. the trial excluded all evidence from the jury tending to show that either the value of the respondent’s road, or its capacity to do the business of the company, would be impaired by the proposed crossing; and the court, upon a review of the authorities in that State, held that the court below erred. It had previously been held by that court that the law requiring trains to stop before reaching and crossing another road was a police regulation, and might be maintained or repealed, at the pleasure of the legislature; that it would therefore be mere conjecture as; to what, if any, damages would be sustained for the delay, inconvenience, and trouble produced by complying with the requirements of the statute; and that, independent of the' statute, the same duty would be imposed, and that it was too vague and uncertain to be an element of damages. Peoria & Pekin Union R. Co. v. Peoria & Farmington R. Co., 105 Ill. 110.

‘.‘The point was more fully considered in an opinion filed at the same time with that above cited, and reported in the same volume, at page 388 (44 Am. Rep. 799 ), in which a rehearing was denied at the March term, 1883, in which the majority of the court held that damages occasioned by the stopping of trains could not be considered in awarding compensation (Chicago, etc., R. Co. v. Joliet, etc., R. Co.). These decisions have not been overruled in that State. Such is also the conclusion reached by the supreme court of Ohio. Lake Shore, etc., R. Co. v. Cincinnati, etc., R. Co., 30 Ohio St. 604.

“ I think that the stopping of trains, whether required by the law as a police regulation, or by the duty of the' company in order to secure the safety of persons transported, is not an element which can be considered by the jury in estimating the damages and compensation to be made. The general railroad law requires trains to come to a full stop before crossing the track of another railroad, not nearer than 200 nor more than 800 feet from the crossing. It regulates the precedence which trains shall have in crossing, and prescribes penalties for disobedience of the regulations. These are police regulations enacted by the legislature, designed to promote the public safety, and are as binding upon an existing road as one newly organized. They stand upon an equality before the law, and neither can levy tribute upon the other as a compensation for obedience to its requirements. 'It is subject to amendment or repeal at any time the legislature may see fit; and for this reason, as well as for the absolute impossibility of determining in advance the number of trains which in the future operation of the road would be required to stop at such crossing, the damage arising therefrom is uncertain and conjectural. But, aside from this, any inconvenience or annoyance or loss suffered in obeying the police regulations of the sovereign authority is damnum absque injuria. * * * In the absence of the statute, the duty imposed by the circumstances upon the corporation to adopt and observe proper precautions to protect the lives of persons committing themselves to its care takes the force of law, and has its foundation in the same principles which underlie police regulations, nainely, the protection and welfare of the public. In other' words, the police regulation requiring trains to stop does not create a new duty, but compels the observance of an existing duty by the corporation. The statute or duty merely regulates the mode in which the corporation shall exercise its franchise. This incident to crossing takes no land, requires , no structural change in the property, and deprives the corporation of no right granted by its charter. It does not lie within the scope of injuries for which compensation should be made. The cost of maintaining signals or a crossing system would be a proper matter for the consideration of the commissioners, as well as cost of watchman. These expenses, however, are subject to contingencies which may cause the damages to fluctuate, and possibly be reduced to a nominal sum.”

The other cases cited are in harmony with the views expressed by Justice Champlin. These cases undoubtedly establish the doctrine that, within the limits of the rule as described by Justice Champlin, the junior highway or railroad seeking a crossing must bear all the expense of making the crossing, and restoring the highway or railroad crossing, as far as practicable, to safe conditions. This, however, relates to the conditions as they exist at the time the crossing is made, and ’ not to conditions which may or may not arise thereafter. The damages must be real, tangible, and proximate. Allowances may not be made for possible or probable contingencies. City of Grand Rapids v. Bennett, 106 Mich. 528 (64 N. W. 585), and cases there cited.

We then come to the question of what the status of the two roads is after the compensation is made and the right of user by the junior road is obtained. While this question has never been, so far as we know, before this court, it has been before other courts. In Lake Shore, etc., R. Co. v. Cincinnati, etc., R. Co., 30 Ohio St. 604, there is a full discussion of this aspect of the case:

“The franchise to be a corporation, entitled as such to own a right of way and to operate a railroad thereon, is granted by the State for the public benefit, in consideration of the supposed benefits accruing to the State and its people from the improvement and its use. The tangible property held for corporate purposes is a means of carrying out the purposes of the corporation. Each corporation has granted to it so much of the right of eminent domain as is necessary to obtain its right of way and to construct its road. The charters of these corporations are obtained under a general law, to authorize the creation and regulation of incorporated companies. 1 Swan & C. Rev. Stat. p. 271. The fact that one charter is older than another does not give it exclusive privileges or superior powers in prosecuting its business as public carrier of persons and property. If the elder company has exercised its power to condemn property for its right of way, and has constructed and is operating its road, that does not withdraw its property from the equal power of condemnation of its right of way for a crossing, to be enjoyed in common by a junior company. Such appropriation, to be used on equal and common terms, does not operate as a subversioii or destruction of the former public use. It is only an increased burden upon its use, imposed for public purposes. * * * The right of the one to cross the track of the other is as clear and undoubted as was the right of the other, in the first instance, to cross the land of the original owner. They each derive this right by gránt from the State, and not by purchase of the other. In each case the constitution protects the private property by requiring compensation to be paid.

“The right of transit across a railroad rests upon the same grounds as that of the right of railroads to cross the canals, rivers, and common highways of the State, and is as important a public use as the right of transit along them. New channels of trade and commerce and new highways for public travel are essential to the growth and development of the State and the convenience and comfort of its people; and the power of the State to provide them is on'e of those sovereign powers, held in trust for the public welfare, which it has no right to grant away or surrender. This grant to railroad corporations is for the public accommodation. To assume that the road first located and constructed has the exclusive franchise of operating a road over the point of crossing, and that this right, as well as the property, iriust be paid for by the second road, does violence to the well-settled public policy of the State. These corporations owe their existence, and the right to exercise their franchises and privileges, to the principle that the State may employ such agencies as it may deem proper to promote the public welfare. These roads are great public highways, and as such are'amenable to such reasonable regulations, not inconsistent with vested rights of private property, as will promote that object.

“When both roads are constructed, they are operated under charters granting equal franchises and privileges, and both are alike subject to the obligations that may be lawfully imposed. When the younger corporation has acquired its right of property in common with the older in a crossing, they become joint and equal owners, bound by mutual obligations to each other and to the public to so use this common right as tó do no unnecessary harm to .the other or to the public. To each corporation the maxim, ‘Sic utere tuo ut alienum non Icedas,’ applies with special force. To enforce the principles of that maxim, and in the legitimate exercise of the police power of the State, the act of March 24, 1860 (1 Swan & C. Rev. Stat. p. 372a), was passed. * * * When the appropriation is made, paid for, and put to the new use, both companies stand on a perfect equality as to rights and privileges in the use of the crossing.”

We can see no fault in the logic of this opinion. When the right to use the crossing is once acquired, the right of the several corporations to this use is reciprocal, so far as is consistent with the kind of use made of the crossing by them. Of course, in the case of a highway crossing over a railroad, from the very nature of the use the foot passengers and persons traveling in vehicles would be required to stop, instead of requiring the trains of cars to stop, because this would be the only practicable method of running the trains and insuring the safety of the public. When the joint use of a crossing is obtained, is the position tenable that, because one road is older than another, the junior road must not’ only compensate the senior road for its present damage before it can cross, but for all time it must bear any additional future cost which may be made necessary by the erection and maintenance of appliances for the safety of the public, resulting from the increased use of the crossing? We think it logically follows from what has already been said that this question must be answered in the negative.

It is said:

“It cannot be pretended that without the existence of the steam-railroad crossing the railroad commissioner would have any jurisdiction, or that there would be any danger arising from the operation of the street railway which would call for an interference of the railroad commissioner. His jurisdiction only attaches because of tho danger arising from the construction and operation of the steam railroad crossing the highway at the point in question.”

It is a complete reply to this suggestion to say that, if there was no highway at this point traveled by a line of electric-railway cars and by the public, there would be no occasion for the interference of the railroad commissioner. It is because both of these conditions exist that human life is endangered at this crossing, and, under the exercise of the police power in the interest of public safety, the State is authorized to interfere through its agent, the railroad commissioner. Seo Nashville, etc., R. Co. v. Alabama, 128 U. S. 96 (9 Sup. Ct. 28); Georgia R. & Banking Co. v. Smith, 128 U. S. 174 (9 Sup. Ct. 47); Minneapolis, etc., R. Co. v. Beckwith, 129 U. S. 26 (9 Sup. Ct. 207); Dent v. West Virginia, 129 U. S. 114 (9 Sup. Ct. 231); Charlotte, etc., R. Co. v. Gibbes, 142 U. S. 386 (12 Sup. Ct. 255); Minneapolis, etc., R. Co. v. Emmons, 149 U. S. 364 (13 Sup. Ct. 870); New York, etc., R. Co. v. Town of Bristol, 151 U. S. 556 (14 Sup. Ct. 437); Thorpe v. Railroad Co., 27 Vt. 150 (62 Am. Dec. 625); Woodruff v. Catlin, 54 Conn. 295 (6 Atl. 853).

It is insisted by counsel for relator that the action of the railroad commissioner 'cannot be sustained for another reason. We quote from the brief of counsel :

“We contend that a street railway which has been granted a franchise to occupy a public street acquires a right to use the same in common with other members of the traveling public, and is not an additional burden upon the street, but is merely an adaptation of the highway to a particular means of travel, and does not constitute an additional servitude. A railroad is, on the other hand, an additional servitude, and, if it is built across a highway, it must do all things necessary to render the highway, for all its legitimate uses, as safe as it was before the railroad was built across it, or would be if such railroad were not built across it at all. The authority for this view is found in the following cases, and, although the facts to which the principles involved were applied differed from those of the case at bar, the principles themselves are involved here, and must, in our opinion, control,”—citing Chicago, etc., R. Co. v. Whiting, etc., St. R. Co., 139 Ind. 297 (38 N. E. 604, 26 L. R. A. 337, 47 Am. St. Rep. 264); Chicago, etc., R. Co. v. West Chicago St. R. Co., 156 Ill. 255 (40 N. E. 1008, 29 L. R. A. 485); 2 Dill. Mun. Corp. (4th Ed.) §722; Chicago, etc., R. Co. v. Steel, 47 Neb. 741 (66 N. W. 830); Du Bois Traction Pass. R. Co. v. Buffalo, etc., R. Co., 149 Pa. St. 1 (24 Atl. 179); Grand Rapids, etc., R. Co. v. Heisel, 38 Mich. 62 (31 Am. Rep. 306); Detroit City Ry. v. Mills, 85 Mich. 634 (48 N. W. 1007); Nichols v. Railway Co., 87 Mich. 369 (49 N. W. 538).

None of these authorities touch the question involved here. Nearly all of them, except the Michigan cases, are referred to in Chicago, etc., R. Co. v. Steel, 47 Neb. 741 (66 N. W. 830). The question involved was whether a railroad company was entitled to damages from a street-railway line seeking a crossing. In disposing of the case the court said:

“The doctrine of the cases cited, and' which to us appears altogether reasonable and sound, is that a railroad company acquires no exclusive use of streets crossed by its tracks with the consent of the city or other municipal body, but must enjoy the right so conferred in common with the general public; that it is presumed to have contemplated the adoption of such improved means of travel as the exigencies of the case require in order to best subserve the public interests and necessities; and that any mere inconvenience suffered by it on account of the crossing of its lines by the tracks of street railways by permission of the proper authorities is damnum absque injuria.”

In the Michigan cases the question involved was whether the adjacent owners were entitled to compensation where the street in front of their land was used by a street-railway company. In Grand Rapids, etc., R. Co. v. Heisel, 38 Mich. 62 (31 Am. Rep. 306), Justice Cooley used the following language:

“If the railroad were only a city railway, constituting a mere local convenience, and calculated to relieve the pressure of traffic and travel upon the street, the question, of course, would be different. There are cases which1 hold it to be competent, under proper legislative authority, to permit a street-railway track to be laid, regardless of the consent or of the wishes of abutting proprietors who may own the soil of the street. A street railway for local purposes, so far from constituting a new burden, is supposed to be permitted because it constitutes a relief to the street. It is in furtherance of the purpose for which the street is established, and relieves the pressure of local business and local travel, instead of constituting an embarrassment. It is for this reason that the owners of lands over which a city street is laid are denied compensation if a street railway is subsequently authorized within it.”

The same question was involved in the other Michigan cases, where electricity was used as motive power. It was held that the adjacent owner was not entitled to compensation, under the facts disclosed by those cases, though two of the five judges thought the building of the street railway did impose an additional burden, for which compensation should be given to the adjacent owner.

Though the decisions are not uniform, it may be considered as now settled by the great weight of authority that the use of a street by a street-railway company, under proper regulations, even though it use electricity as a motive power, is not an improper use of the street, and is not such an additional burden as to entitle the adjacent proprietor to additional compensation. It does not follow, however, from these decisions, that the electric car and the horseless carriage do not increase the danger to those who have a right to travel the streets. If it be asserted that the propulsion of a modern suburban car, 45 or 50-feet long, which may be propelled, at the will of' the motorman, at a speed from simply moving to 40 or 50 miles an hour, through the public streets of a city, is not a different use of the street, and a source of greater danger to the public, than obtained when the streets were used only by pedestrians and carriages drawn by horses, such an assertion would not .commend itself to the common sense of those having cognizance of tho facts. The long list of frightful injuries and fatal casualties which occur yearly because of the new methods of travel in all our large cities would be a complete answer to the assertion. Does it not follow then that, though the modern methods of travel are required by the conditions of modern life, inasmuch as they may and do increase the danger to human life, it is entirely competent for the State, in its efforts to protect its citizens in the exercise of its police power, to provide such regulations, at the expense of the persons or corporations employing the new methods, as in its wisdom it deems necessary to accomplish that purpose? Upon what other theory does it regulate the speed of the vehicles traveling the streets ? Why does it require, at the expense of the corporation owning street cars, their frequent inspection, or require them to be equipped with powerful brakes and with safety fenders ? Can there be any question but that it would be legal to require steam boilers used to propel horseless carriages to be so constructed as not to be liable to explosion, or to require the person operating such a carriage to be so familiar with its operation before taking it upon a crowded street that its appearance there should not be a source of danger ? It seems to us there can be but one answer to these questions. New dangers upon the public streets require new safeguards in the interest of the safety of the public. It is a matter of common knowledge that, where electric cars run at frequent intervals across a railroad over which trains are frequently run, it is a place of unusual danger, not only to the passen,gers in the steam cars, but also to the passengers in the electric cars. This danger is occasioned, not by the steam road alone, nor by the electric road alone, but by both of them. We have no doubt that, under such circumstances, the State) in the exercise of its police power, can take such steps as will minimize the danger, and can impose the expense of doing so upon the corporations causing the danger.

In Maine a statute similar to the statute of this State was passed in 1895, authorizing the railroad commissioners, in such a case as this one, to apportion the expense between the electric road and the steam road, though it did not require them to do so. Under this statute, the case of Maine Central R. Co. v. Waterville, etc., R. & Light Co., 89 Me. 328 (36 Atl. 453), arose. In that case it was claimed, as it is claimed here, that the use of the crossing of the steam road by the electric road was simply a use of the highway. We quote from the ■decision of the commissioners:

‘ ‘ But the counsel for the electric-railway company goes further, and in argument claims that, by its charter, his company has the right for its electric cars to pass and repass across the rails of the Maine Central Railroad •Company, and over the highway, the same as any other vehicle on said highway, and that the Maine Central Railroad Company is obliged, under the law, to make proper provisions for the passage of electric cars across its railroad tracks. He argues that the car of the electric railway is nothing more than the team or vehicle of any other person or corporation which has a right to pass and repass within the highway. He argues that the building of an electric railway along the highway in this State is not a new servitude upon the street, and is not a new use of the way, but is only a new and. later mode of using the way.”

Under the circumstances of that case, the commissioners put the expense of putting in the new crossing frogs entirely upon the electric road. The case was removed to the supreme court, which declined to disturb the decision of the commissioners, the court using the following language:

“The act of 1895, chap. 72, undoubtedly authorizes the railroad commissioners to apportion the expense, but it does not require them to do so. It leaves the question to their sound judgment and discretion; and, on appeal, the only rule prescribed for the presiding justice is that he shall make such order or decree as law and justice shall require. The statute declares that ‘exception may be taken to such order or decree,’but it prescribes no rules by which the law courts shall be governed in passing upon the exceptions. It seems to us that the evident intention of the legislature was to leave the whole question of how railroad crossings should be constructed and maintained, and how the expense of such crossings should be borne, in the first instance to the sound judgment and discretion of the railroad commissioners, and we think that their decision should not be altered or reversed unless manifestly illegal or unjust.”

See Commissioners of Parks & Boulevards of Detroit v. Railroad Co., 91 Mich. 291 (51 N. W. 934); Woodruff v. Catlin, 54 Conn. 277 (6 Atl. 849); New York, etc., R. Co. v. Town of Bristol, 151 U. S. 556 (14 Sup. Ct. 437).

We have no doubt of the right of the legislature to authorize the railroad commissioner to do what he has sought to do here.

The petition of the relator is denied.

Montgomery, C. J., and Long, J., concurred with Moore, J.

Grant, J.

(dissenting). The main question in this ease may be thus stated: When a steam-railroad company has condemned a right of way and extended its tracks across a public street or highway on which is an existing street-car line, and at the time the public travel upon the street or highway was not such as to require the erection of gates, etc., for the protection of the public, but subsequently, owing to the increase of population, the increase of tracks and trains by the railroad company, and the increase of travel upon the street or the highway, the erection and maintenance of such safeguards becomes essential for the protection of the public, can the street-railway company be required to pay a portion of the expense ? It is now the settled law of this State that a street railway does not create an additional servitude. People v. Railway Co., 92 Mich. 522 (52 N. W. 1010). In addition to the authorities cited in Detroit City Ry. v. Mills, 85 Mich. 634 (48 N. W. 1007), and Nichols v. Railway Co., 87 Mich. 361 (49 N. W. 538), see, also, the following: Chicago, etc., R. Co. v. Whiting, etc., St. R. Co., 139 Ind. 297 (38 N. E. 604, 26 L. R. A. 337, 47 Am. St. Rep. 264); Chicago, etc., R. Co. v. West Chicago St. R. Co., 156 Ill. 255 (40 N. E. 1008, 29 L. R. A. 485). Another well-settled principle is of importance in this discussion, viz.: A steam railroad, in constructing its tracks across an existing highway, must pay all the expense of putting the highway in safe condition, and erecting and maintaining such safeguards as are required for the protection of travelers upon the street or highway, as weil as those who are traveling upon the steam ■ cars. The correlative proposition is also well established, viz. : When a public highway is laid out across an existing railroad, .the public must compensate the railroad company, not only for the value of the land taken, but also for the construction of requisite safeguards, including gates, flagmen, fences, cattle-guards, etc., for the protection of the public. Chicago, etc., R. Co. v. Hough, 61 Mich. 507 (28 N. W. 532 ); City of Grand Rapids v. Railroad Co., 58 Mich. 641, 648 (26 N. W. 159); Commissioners of Parks & Boulevards of Detroit v. Michigan Central R. Co., 90 Mich. 385 (51 N. W. 447); Same v. Chicago, etc., R. Co., 91 Mich. 291 (51 N. W. 934); City of Grand Rapids v. Bennett, 106 Mich. 528 (64 N. W. 585 ); 8 Am. & Eng. Enc. Law (2d Ed. ), 351; Du Bois Traction Pass. R. Co. v. Buffalo, etc., R. Co., 10 Pa. Co. Ct. R. 401. The elements of damages in such cases are ably discussed by Mr. Justice Champlin, in Flint, etc., R. Co. v. Detroit, etc., R. Co., 64 Mich. 350 (31 N. W. 281), and many authorities there cited. Another well-established principle important to be here noted is this: He who creates and maintains a nuisance must pay the cost of abating it; and that business which, in its management, endangers the persons and property, of others, must pay the expense of taking the necessary precaution to avoid the danger, and it matters not whether that danger existed at the time of the establishment of the business or arose afterwards. It follows that in 1888, when the Wabash Railroad Company constructed its single track across the highway, and in 1893, when the Union Terminal Association placed its tracks across, they were required by law to pay the expense of all appliances at that time necessary for the protection of the public. So, too, if these companies were now making application -to cross the highway, they would be compelled to pay the expense of all the appliances which, in this proceeding, the commissioner has divided equally between the relator and the Union Terminal Association, and would be obliged to do so so long as they did business.

The argument of the learned attorney general seems to be that because, under the circumstances as they existed when the Wabash Railroad Company and the Union Terminal Association constructed their roads, damages for the cost of the appliances now required would then have been uncertain and speculative, and could not have been considered, therefore these companies cannot now be required to bear the entire expense. He states his position as follows:

“In behalf of respondent, I claim that said cases, while establishing the doctrine that a railroad company whose track is crossed is entitled to just compensation for all damages which it may have sustained by reason of such crossing, do not sustain the claim made by counsel for petitioner, namely, that the Union Terminal Association Railway Company must for all time bear the expense of constructing and maintaining the safety contrivances and appliances mentioned in the commissioner’s order, for the simple reason that, under the facts and circumstances of this case, the expense of constructing and maintaining said safety contrivances is not an element which can be considered in making up the just compensation to which petitioner is entitled under the Constitution and laws of this State. * * * This, court has never decided that where the necessity of safety appliances is created some 15 or 20 years after the crossing is made, solely in consequence of changed circumstances and conditions, resulting from the growth of the surrounding territory, that the road whose tracks were first laid shall be forever exempt from the burden of assisting in constructing and maintaining safety appliances made necessary by such changed conditions. ”

The injustice to the railroads is not apparent, because by holding them to bear the expense they are doing no more than the law would clearly require of them if they were now seeking to cross the highway. What is it that causes the danger to travelers upon the highway ? Clearly, it is not the street cars. It is the trains of the railroad companies. The street-car companies, by relieving travel, may fairly be held to lessen the danger to otherwise overcrowded streets. Why should the street-car company, any more than an omnibus line or a stage company, using the same streets, be required to pay for the expense of protecting the public ? If it be said that there is danger to travelers upon the steam railway from the street cars, the answer is ready that they are no more dangerous than heavy trucks, van wagons, stages drawn by four or six horses, or other vehicles. The street cars differ only from other methods of travel in that their carriages run upon rails. They have no more rights in going over the streets than other travelers have, except that other travelers are required reasonably to give the cars the right of way. Under the police power, these street-car companies are subject to all reasonable rules in running their cars. . They may be, and now are, required by law to stop their cars a certain distance from the railroad crossing, and not to cross until some employé has gone to the railroad track, and signaled that -the track is clear. The same rule might be required of stagecoaches- and any other conveyances with heavy loads.

In Du Bois Traction Pass. R. Co. v. Buffalo, etc., R. Co., 10 Pa. Co. Ct. R. 401, the complainant, the street-railway company, filed i£s bill in equity to restrain the defendant, a steam-railway company, from interfering with the construction of its tracks in the public highway across the railway tracks. The defendant used force to prevent the construction. In the suit the defendant claimed that the street-railway company should pay damages to the, defendant for injury to its business. It was there said:

“The respondent holds this right [the use of the street] subject to all the consequences flowing from the ever-increasing travel upon Booth street, and the use of all methods discovered or discoverable for the accommodation of the travel upon the surface of the street; and, if the respondent suffers any damages arising from the crossing of its track by the public, it is of a kind which it must be held to have assumed to itself when it entered upon Franklin street. * * * The crossing of its track by the passenger-railway company gives no greater right to damages, in the view we take of the case, than it could have if the claim was made against an omnibus line.”

This case was approved in 149 Pa. St. 1 (24 Atl. 179). That case is quoted with approval in Chicago, etc., R. Co. v. Steel, 47 Neb. 741 (66 N. W. 830), where the authorities are reviewed, and the court holds “that it [the steam-railroad company] is presumed to have contemplated the adoption of such improved means of travel as the exigencies of the case require in order to best subserve the public interests and necessities.”

In Chicago, etc., R. Co. v. Whiting, etc., St. R. Co., 139 Ind. 297 (38 N. E. 604, 20 L. R. A. 337, 47 Am. St. Rep. 264), it was held that the street-railway company was in the enjoyment of the public easement and use of the street, and that the right of the street railway to cross the tracks of the steam railway was subject to no conditions other than those to which the general public is subject in traveling over such streets. The court said:

“It [the steam railway] never owned its right of way over and across the streets named free from the burden of the public easement, a part of which belongs to the appellee, the street railway. ”

The true rule seems to be that when a railroad company crosses a public street or highway, in the absence of any limitations in its charter, it obtains its right subject to all lawful uses to which the street may be put. It obtains its right subject to the well-known fact that conditions change with the growth of population, and that it itself must meet the. expense which these conditions have made necessary for the protection of travelers upon the highway or street.

The learned attorney general seems to concede that, were it not for this street railway, the commissioner, under the law and the police power, could place upon these rail, roads the entire cost of erecting and maintaining these appliances. As we have shown and held, the street-car company is a lawful user of the highway, and, as such user, it cannot be selected to pay the whole or any part of the-, expense required for the protection of all who travel upon the highway or upon the railroad. This disposal of the case renders it unnecessary to determine the other questions raised.

Since writing the above I have received the opinion of my Brother Moore. The question involved is of such great importance that I feel justified in making a brief reply. It is well to keep in mind the precise question for our determination. The question is not between two steam railroads crossing each other on private grounds or on the public highway. Neither is it between steam railroads and the entire public using the highway. It is between steam railroads and one user of the public highway, and the question is, Who shall pay for the protection of the entire public ? or, in other words, Can one user of the public highway be required to pay part or all of the expense of protecting all users of the highway and as well those traveling upon the steam road? It must also be borne in mind that no one is seeking to abridge, lessen, or destroy the police power of the State to adopt any and all regulations which are necessary to protect the persons and property of those using the highway or the steam road. This power remains the same. The State, either directly or through the municipality, can regulate the speed of street cars within 100, 500, or 1,000 feet of the crossing. It can compel them to stop at any distance from the crossing. It can regulate the speed of the steam cars when approaching. It can, as it now does, compel an employé on the street car to advance to the track before crossing, and see whether the crossing is safe. It may compel the steam road to- erect gates, etc. I quote again from Chicago, etc., R. Co. v. Whiting, etc., St. R. Co.:

“ So long, therefore, as it is the settled law of this State that a street railway is not an additional burden to that of the easement which the general public has in the street, and that the street-railway company’s right to use the street is founded on that easement, that long it must be 'held that the right of such street railway to cross over the tracks of a steam railway laid on such street is subject to no conditions other than those to which the general public is subject in traveling over such streets. When the steam-railway company obtains its right of way over and along a public street, it does so subject to the right of the general public to use such street, and the street crossings over its tracks; and it is generally incumbent on such steam-railway company to make such crossings as passable for the general public as they were before the construction of their tracks thereon.”

The logic of this case and others cited by me upon the same point is that the street railway is a proper, legitimate, and necessary use of the public highway, and that it cannot be made subject to conditions “ other than those to which the general public is subject in traveling over the streets.” Wherein is the logic of compelling one user of the public highway to pay the whole or part of the expense in protecting all users of the highway against the dangers incident to the passage of long, swift, and pon. derous trains of steam cars ? It is not the street car which causes the congestion of travel at this point; on the other hand, it relieves the congestion. The congestion is'caused by the increase of population,—by vehicles of all sorts, engaged in the transportation of goods and passengers, and as well travelers on foot. My Brother refers to the horseless carriage as probably increasing the danger to those who have the right to travel in the streets. Will it be contended that the owners of horseless carriages could be selected from the owners of other vehicles using the highway, and compelled to in part or entirely pay for the expense of gates, etc., at a railroad crossing? If a cartage company, a corporation, were engaged in the transportation of goods with its heavy trucks and enormous loads over this highway every 15 minutes or half hour in the day, could it be compelled to pay part or all of the expense to avoid the danger caused by the trains of the steam roads? 'Many vehicles, with their loads, are as heavy, and sometimes nearly or quite as large, as ordinary street cars. The tallyhos, with four or six horses, are certainly as dangerous at these crossings as are the street cars. But for the street cars there would be more conveyances of other character, and more congestion of travel, at these crossings, and consequently more danger than results from the use of the street cars.

It is urged that the facts in the cases I have cited are not those of this case, and that the precise question now • before us was not involved in them. This is true. The same may be said of the cases cited in my Brother’s opinion, unless it be the Maine case, to which I will refer

hereafter. The question is a new one, and calls for the application of principles to be deduced, so far as possible, from the decided cases, and by the application of sound legal principles. My Brother says:

“If there was no highway at this point traveled by a line of electric-railway cars and by the public, there would be no occasion for the interference of the railroad commissioner. It is because both of these conditions exist that human life is endangered at this crossing, and, under the exercise of the police power in the interest of public safety, the State is authorized to interfere through its agent, the railroad commissioner,”—citing several cases.

Will it be said that if there were no electric cars there would be no necessity of interference by the commissioner or some other authorized body to protect the public and prevent danger ? Is the electric car the sole cause of the danger, so far as it is caused by the using of the highway ? Might not the danger be as great, or even greater, without the street car ? The cases cited by my Brother relate to fences, cattle-guards, farm crossings, and the like, and do not touch this case.- The statement of my Brother that, “ under the exercise of the police power in the interest of public safety, the State is authorized to interfere,” is the conceded law. But does that affect the question who shall pay for these safeguards? The authorities cited, apportioning the expense where one steam road crosses another, are not, in my judgment, applicable. He qúotes extensively from Lake Shore, etc., R. Co. v. Cincinnati, etc., R. Co., 30 Ohio St. 604. I understand the rule laid down in that case is the general rule approved by this court, and is applicable only to steam railroads, whether they cross one another on private grounds or the public highway. It has never been applied to street railways.

I am not aware, as my Brother suggests, that street cars in cities are allowed a speed of from 40 to 50 miles per hour. No ordinance so providing has ever been called to my attention. I doubt whether there are as many accidents at street-car crossings from collisions with street cars as with other vehicles. The fact that there are frightful injuries and fatal casualties in the streets of the city, in consequence of collision with street cars, does not affect this question. Those accidents may result from the negligence of travelers, or from the employes of the street-car companies, or both, or from too great a speed allowed by the city, or in violation of the city ordinance. The question we are dealing with is one entirely foreign to those.

Maine Central R. Co. v. Waterville, etc., R. & Light Co., 89 Me. 328 (36 Atl. 453), is cited as a case in point. The language quoted by my Brother from that case must be read and understood in connection with its facts. The steam-railroad tracks were first laid-. The street-railway company recognized its duty, when it crossed, to place the necessary crossing frogs at its own expense. That this would be the legal duty of the street-railway company would hardly be questioned. These frogs were a part of the track of the street railway, and were necessary in its construction. They had become so worn as to be dangerous. The street-railway company claimed that it was the duty of the steam-railroad company to replace them, and to make proper provisions for the passage of the electric cars across the tracks of the steam road,—-a proposition which could not commend itself to any one’s judgment. The railroad commissioners very properly held that the street-railway company should bear the expense essential to enable it to cross the petitioner’s track, and to keep it in repair. No other conclusion, in the exercise of good sense, could have been reached. The syllabus of the opinion reads as follows:

“Whenever an alteration is made in an existing rail-Toad track for the sole convenience and accommodation of another railroad, the expense should be borne by the latter.”

No question of the exercise of the police power was discussed or apparently involved. I am unable to see that that'' case controls this.

The question before us is not whether the legislature may enact that the expense of crossings similar to this shall be borne, in whole or in part, by the entire public, nor whether the street-car company, in putting its tracks-across a steam road, can be compelled to make an overhead crossing at its own expense. We are dealing with a case where the natural growth of public travel, through the increase of trade and population, has made the proposed safeguards necessary for the protection of all, and where the attempt is made to make one user of the public highway bear half the expense to the exclusion of all others.

The writ should issue.,

Hooker, J., did not sit.