text:
    TEACHOUT v. GRAND RAPIDS, GRAND HAVEN & MUSKEGON RAILWAY CO.
    1. Electricity — Telegraphs and Telephones — Negligence—Personal Injuries.
    Defendant caused, certain uninsulated high-tension wires to be strung from 15 to 18 inches above the wires of a telephone company. The telephone company had been in operation and its wires had remained at that point several years. In making some necessary repairs at the top of a pole a lineman employed by the telephone company to repair its lines came in contact with high power wires and was killed. Held, that the question of negligence was one of fact for the jury.
    2. Same — Contributory Negligence — Directed Verdict.
    Where the issue in a case is whether contributory negligence did or did not exist, and this depends upon inferences to be drawn from the attendant circumstances, and honest, intelligent, and impartial men might differ about them, the case should be submitted to a jury.
    3. Same — Contributory Negligence.
    Also, it was a question for the jury whether plaintiff’s intestate was guilty of contributory negligence in coming into contact with defendant’s high power wire while he was repairing the telephone company’s insulation and wiring.
    4. Same — Presumption of Due Care — Evidence—Death.
    In the absence of witnesses who could testify to the facts relating to the manner of his injury and death, at the moment of contact with the power wires, the court properly charged that the decedent must be presumed to have exercised due care.
    5. Same — Master and Servant — Assumed Risks.
    The principle of assumption of risk rests on the ground of an implied contract between the master and his servant that the latter shall assume the risk of all dangers incident to his employment. But as to strangers to the contract whose negligence causes injury to the servant, no such defense exists.

      6. Same — Power Company — Negligence—Joint Liability.
    Although the power company which supplied the current had contracted with its codefendant, the railway company, for the use of wires owned by the railroad corporation, stipulating that the power company should not assume any responsibility for the transmission line, it was liable for negligently maintaining the wires too near the telephone wires, under testimony showing that it supplied electricity to other consumers by means thereof.
    Error to Mecosta; Barton, J.
    Submitted October 15, 1913.
    (Docket No. 46.)
    Decided March 27, 1914.
    Case by Winfield S. Teachout as administrator of the estate of James R. Teachout, deceased, against the Grand Rapids, Grand Haven & Muskegon Railway Company and the Grand Rapids-Muskegon Power Company for the negligent killing of decedent. Judgment for plaintiff. Defendants bring error.
    Affirmed.

      Carroll, Kirwin & Hollway, for appellant Grand Rapids, Grand Haven & Muskegon Railway Co.

      Travis, Merrick & Warner, for appellant Grand Rapids-Muskegon Power Co.

      Broomfield & Worcester, for appellee.
   Moore, J.

The Detroit, Grand Haven & Milwaukee Railroad extends from the city of Grand Rapids to Grand Haven. It crosses the highway at a point called the high bridge. The Michigan State Telephone Company, prior to 1899, constructed a telephone line along this highway. The defendant the Grand Rapids, Grand Haven & Muskegon Railway Company operates a third rail system of electric railway from Grand Rapids to Muskegon, with a branch to Grand Haven. It was built prior to and began to operate in February, 1902. It passed over the steam railroad on an iron bridge, not far from which is a telephone pole belonging to the Michigan State Telephone Company, which in June, 1911, carried on two cross-arms 12 telephone wires. When the electric line was built the electric railway company strung a line of high-tension wires to supply its line with electricity, and manufactured its own electricity until about the first of the year 1906, when the defendant the Grand Rapids-Muskegon .Power Company furnished the current under a contract which it made with the interurban road, using the high-tension wires mentioned above. In June, 1911, there were three of the high-tension wires, carrying 16,500 volts of electricity, strung on one cross-arm, and they passed diagonally over the telephone wires. The center one of the three was, according to the testimony of the plaintiff, but 15 inches above one of the telephone wires; while each of-, the other high-tension wires was 2 or 3 inches farther away from any telephone wire. According to the proof offered by the defendant, the high-tension wires were 2 or 3 inches farther away from the telephone wires. The high-tension wires were copper, carrying no insulation where they passed over the telephone pole and wires before described. The nearest high-tension pole upon which the high-tension wires were strung was 18 feet from the telephone pole. While at work upon this telephone pole plaintiff’s intestate, James R. TeaChout, then 24 years of age, received a shock resulting in his death within one hour thereafter. From a verdict- and judgment in favor of the plaintiff, the case is brought here by writ of error.

Many assignments of error are discussed; but the meritorious ones may be grouped as follows:

(1) Were the defendants negligent?
(2) Was the decedent guilty of contributory negligence as a matter of law?
(3) Did the court err in charging the jury as to whether it was to be presumed that decedent was in the exercise of due care at the time he received the shock?
(4) Did the decedent assume the risk?
(5) Upon this record, can the judgment be sustained against the defendant the power company?

The decedent was an experienced lineman. He had worked in that capacity from April, 1911, until his death, June 2, 1911, and had been in the employment of the telephone company in various capacities for nearly three years. He was regarded as a prudent, careful, and efficient man. During the forenoon of June 2, 1911, it rained some. The patrol crew was made up of Mr. Short, a foreman, and the decedent, who made the repairs, and a third man, Mr. Winter-stein, who drove the team, and had charge of the wagon, with its supplies. As they were crossing the highway bridge, Mr. Teachout said there was an insulator off of the telephone pole that stood just north of the interurban bridge. They drove across the bridge and interurban track, and Mr. Winterstein, who was driving, stopped the team in the traveled portion of the highway 20 or 25 feet from the telephone pole. Mr. Teachout got off the wagon, and having put on his climbing spurs, took an insulator anci such tools and materials as he needed to make the necessary repairs. We quote from the foreman’s testimony:

“He started up the pole and got up 4 or 5 feet, and I remember of speaking to him, and speaking about the wires being very hot, and to be careful.' He wanted to know how I knew they were hot, and I told him, when we were putting a piece of cable in at Berlin previous to this, we got the high-tension wires crossed up, which blowed the fuse in Fruitport or some place, and stopped all the cars on the line for a period, I should judge, of 20 minutes. He spoke up and said, ‘Then you know by instinct.’ I said, ‘Naturally,’ or something to that effect. That is all there was said. * * * There was an insulator broken up on the middle wire on the south side of the pole on the second arm from the top. * * * Jim went on up the pole; I did not pay much more attention to him. * * * No; I could not state how long he was up the pole doing that work. Yes; he had his spurs on when he started up the pole. He could not have got up the pole if he did not have his spurs on. * * * He put this insulator on, and tied the wire back into its place. That work was a part of his duties as a' lineman. I asked him how the cross-arm was, and he says, ‘Apparently good, except split a little at the end.’ He said he would tie it over to the pole with a piece of wire so it would be all right. Í think I stood around for a few moments, and the next thing I heard him say, T guess I got my foot caught.’ Tasked him if he wanted any help, and he says, ‘No.’ Mr. Winter-stein spoke up and said something about taking it out the same way you put it in. Just then I started across the road to this guy stub, where this guy runs across the highway. I was going over there to inspect the anchor and see if some of the wires were broken in the anchor, the part that runs from the pole down to the guy, the anchor guy. When I got over there and looked at it and started back, I did not pay any more attention to him. Just as I got — there is a lot of dirt down to the bank,, where they graded the road, to make it higher at that point; I was just across there, if my memory serves me correctly. I heard him say, T got mine;’ and just then I heard a crack, and I jumped for the wagon and got my spurs, and I ran over to the pole, and was going to püt one spur on my foot, and I looked up, and he had started to fall then, so I saw there was no use of going up, and I started around to the street car bridge. I thought maybe I might be able to catch him and break the fall; but before I got there he had struck on the interurban bridge, and his chest struck across the ndrth rail of the interurban railway. It was his left foot that was caught. He had it in between' the braces under the second cross-arm.
“Q. What did he have his foot in there for?
“A. To hold himself in position to do his work.
“Q. As you said you heard some noise there, what was that noise, if you know, Mr. Short?
“A. It was electricity. * * * I have worked around in connection with lines charged with electricity ever since I have.been working at telephone work, which is 13 years ago last April. I am. familiar with the sound produced by the passing of electricity across gaps or in making circuits. That is what I base my answer on when I say it was electricity. When I last saw Jim on the telephone pole before I heard this sound, which, I say, was electricity, he had his foot in between these braces, and was taking his spur off to get his foot out, his left foot. He was then facing the pole, facing the east. He had his left foot in between the braces under the cross-arm, and the other spur was in the pole holding his weight down below the braces, and he was hanging on the second cross-arm with one hand, and taking his spur off with the other hand. * * * The last time I saw Jim before I heard that passing of electricity his shoulders would be nearly even with the top cross-arm; his head would be looking down to his feet, where he was taking his spur off. His head would be even with the top cross-arm. His body would be just below the top cross-arm, and directly west of the telephone pole. There might have been a minute and a half or two minutes elapsed between the time I last saw him up there when he was getting his foot out of that cross-arm before I heard that crash of electricity.”

The teamster’s version does not differ materially from that of the foreman. We quote:

“I stopped the team, and as they stopped he went to work up the pole to put the glass on. After he got the glass on, he said, T guess I have got my foot caught here.’ I says, ‘Maybe you can take it out the same as you put it in;’ and Mr. Short spoke up and says, ‘Maybe, if you take your spur off, you can take your foot out all right;’ and while he was taking off his spur I was looking up at him while he was taking off his spur. He got it pretty well off, and my horses started to start up, and I turned around and stopped them, and as I looked back I saw Mr. Teachout throw up his hands and make a groan, and it looked to me as though there were two balls of fire leaving his body, perhaps as big around as, well, a person’s hat, a common hat, passed from his body, and at that he fell on the wires below him and dangled there a little, and from there to the railroad track, on the railroad. * * * Jim was on the west side of the telephone pole. I think he put his left foot through these braces that was on the lower cross-arm, between the brace and the cross-arm and the pole. I would not be able to state how far he put his foot through there. He was doing the repair work on the lower cross-arm, towards the bridge, I think. I should not think he was up that telephone pole over 15 minutes. I did not time him. It might have been less than that. I know he put this glass on, on the pin, and I know he tied a wire around the arm, and tied the wire fast to this glass, wound a wire around the arm, and he tied the wire around the glass, and fastened the wires, as they usually did on these glasses, and I think he put a wire around the cross-arm besides that. I was looking up at him most of the time. The last time I saw him before I heard the groan and saw these balls of fire he wasn’t standing quite straight up. I think his position would be — I think he was getting his foot out of the brace. I think his shoulders were up even with the top cross-arm, and his head would be a little higher, of course. * * * I was looking at the pole, and- as the horses started I turned and stopped them. At that time Jim’s face was towards the pole. This was when he was getting his foot out of the brace, when he was standing with his face towards the pole, and about the time I looked up he made this groan, and almost at the same time was when I seen this discharge from his body, what I supposed to be fire, and at that he fell and struck on these wires, and from there to the ground, to the railroad. As .to how long a period elapsed between the time I looked up when I say his shoulders were about even with the top cross-arm, and he was getting his foot out, and then I turned around and checked my horses, and then turned around again and heard him groan, and saw the flash, that would be a very short time. You can imagine just — it would be like that [indicating] . A person can tell better by that than I can; just stopped my horses and looked right back again. When I was looking up when he was getting his foot out of the brace I was on the wagon facing the east; the pole would be to the right of me, and a little west. I just set there on the wagon and looked right up at him. My horses started up maybe one step. I would not be able to fix the time between these two times I looked up, a very short time; but I couldn’t say how long a time'it was. His body when I looked up the last time was pretty near straight up, with his hands up and out, and apparently fálling. His shoulders, just at that very instant, I should think would be a little above the top cross-arm. I think the groan and his hands going up came before the fire. It wasn’t an instant between the whole three of them; I don’t think any more than that [snapping his fingers]. The groan I think was about like that [witness groans]. I heard it very plain. It might have been a little louder than the groan I have made here. The balls of fire seemingly went right from the body, each way from it.”

1. Were the jury justified in finding defendants were negligent? It appears beyond question that the telephone lines had been in use several years before the high-tension lines were strung. It goes without saying that employees of the telephone company must climb the poles to keep the lines in repair, which repairs from .time to time are necessary if the line is to do business. These repairs cannot be made without some portion of the employee being above the cross-arms where the wires are strung. It is also clear that, if an employee came in contact with a high-tension line carrying several thousand volts of electricity, great harm is sure to come to the employee. This court will not say a jury is not justified in finding that to string such tension wires so close to telephones wires as was done here was negligence. See Joyce on Electric Law' (2d Ed.), §§445, 517a; Mitchell v. Electric Co., 129 N. C. 166 (39 S. E. 801, 55 L. R. A. 398, 85 Am. St. Rep. 735); Potts v. Railway Co., 110 La. 1 (34 South. 103, 98 Am. St. Rep. 452); Giraudi v. Improvement Co., 107 Cal. 120 (40 Pac. 108, 28 L. R. A. 596, 48 Am. St. Rep. 114); Denver, etc., Electric Co. v. Simpson, 21 Colo. 371 (41 Pac. 499, 31 L. R. A. 566 and note, page 568); Berry v. Telegraph Co., 95 Miss. 729 (50 South. 69); Thomas v. Gas Co., 108 Ky. 224 (56 S. W. 153, 53 L. R. A. 147); Mize v. Telephone Co., 38 Mont. 521 (100 Pac. 971, 129 Am. St. Rep. 659, 16 Am. & Eng. Ann. Cas. 1189); Kile v. Power Co., 149 Mo. App. 354 (130 S. W. 89); Kraatz v. Light Co., 82 Mich. 457 (46 N. W. 787); Warren v. Railway Co., 141 Mich. 298 (104 N. W. 613); Johnson v. Bay City, 164 Mich. 251 (129 N. W. 29, Ann. Cas. 1912B, 866); Huber v. Electric Co., 168 Mich. 531 (134 N. W. 980).

2. Was the decedent guilty of contributory negligence as a matter of law? In Brezee v. Powers, 80 Mich. 172 (45 N. W. 130), it is said:

“Questions of negligence are usually for the jury to determine, under all the circumstances; and to warrant the court in determining, as a matter of law, that these facts and circumstances show contributory negligence, they must be so conclusive that reasonable and prudent men would not disagree. If from the facts and circumstances the negligence is manifest, then, as I have before stated, it is a matter to be disposed of by the court as a matter of law. Where the essential fact in a case is whether contributory negligence did or did not exist, and this depends upon inferences to be drawn from facts and circumstances about which honest, intelligent,, and. impartial men might differ, such a case should be submitted to the jury. Swoboda v. Ward, 40 Mich. 424; Conely v. McDonald, 40 Mich. 150; Railway Co. v. Slattery, 39 Law T. (N. S.) 365.”

See Ashman v. Railroad Co., 90 Mich. 567 (51 N. W. 645); Becker v. Railway Co., 121 Mich. 580 (80 N. W. 581); Haxer v. Griessel, 162 Mich. 310 (127 N. W. 309).

In 15 Cyc. p. 475, it is said:

“As in other cases of negligence, contributory negligence on the part of plaintiff, in an action for injury done by electricity, precludes a recovery. Thus one who has notice of the dangerous condition of a wire or other electrical appliance, and voluntarily brings himself into contact with it, cannot hold the company for the resulting injuries. To give rise to this defense, however, it must be shown that plaintiff, in, coming in contact with the appliances, voluntarily and unnecessarily exposed himself to danger, and if reasonable men might honestly differ on the question, the court will not hold plaintiff guilty of contributory negligence as a matter of law.”

Defendants could hardly contend that because of their conduct the telephone company must abandon its pole, and, if it was not to be abandoned, it must be held that its wires must receive attention, making it necessary for its employees to go upon the cross-arms. In Potts v. Railway Co., 110 La. 1 (34 South. 103, 98 Am. St. Rep. 452), it is said:

“The fact that he knew there was, at that point, leakage from the trolley wire to the span wire, and yet continued working there, was not of itself negligence barring recovery. Beach on Contributory Negligence (2d Ed.), pp. 44 and 50.
“He could still work there notwithstanding knowledge of the hot span wire, and would not be chargeable with negligence, unless he failed to take due precaution and exercise due care to shield himself from harm.
“This is not a case of a master furnishing defective appliances to do his work and which the servant, knowing the defect and danger, proceeded, notwithstanding, to do the work, thus assuming the risk. Potts was not the servant of the car company, and it was the latter’s span wire that did the mischief.
“In Clements v. Light Co., 44 La. Ann. 692 (11 South. 51, 16 L. R. A. 43, 32 Am., St. Rep. 348), this court held that when a person is employed in the presence of a known danger, to constitute contributory negligence it must be shown that he voluntarily and unnecessarily exposed himself to the danger.
“It is not contributory negligence to engage in a dangerous occupation. Such was the ruling of this court in Myhan v. Power Co., 41 La. Ann. 969 (6 South. 799, 7 L. R. A. 172, 17 Am. St. Rep. 436). See, also, Beach on Con. Neg. 370; Wood, 763.
“It did not appear to the satisfaction of the jury that Potts had unnecessarily exposed himself to the existing danger in executing the work he was called oil by his employers, the telephone company, to do. It did not appear to them that he had failed to take due precaution to shield himself from danger. In this we are not prepared to say the jury erred.”
Balderson v. Telephone Co., 173 Mich. 412 (139 N. W. 7).

We think the question of contributory negligence was for the jury.

3. Did the court err in its charge as to the presumption that decedent was in the exercise of due care? In Teipel v. Hilsendegen, 44 Mich. 461 (7 N. W. 82), Justice Cooley, speaking for the court, said:

“When one sues to recover damages for a negligent injury, the gravamen of his complaint is that he has been damnified by the wrongful and negligent action of the defendant without having contributed thereto by negligent conduct of his own. The absence of contributory negligence is therefore a part of his case, and it is quite proper to say that he should show that he acted with due care. Le Baron v. Joslin, 41 Mich. 313 [2 N. W. 36]. But this only requires of him that he should put in evidence the facts and circumstances attending the injury, and if these show negligent conduct in the defendant from which the injury followed as a direct and proximate consequence, and do not show any contributory negligence in the plaintiff, a prima facie case for a jury is made out. He cannot be required to go further than this in negativing his own fault, and in many cases where there are no eyewitnesses it would be impossible.
“Nor is it necessary that the absence of contributory negligence should be shown beyond cavil or question. If the circumstances are such that reasonable minds might draw different conclusions respecting the plaintiff’s fault, he is entitled to go to the jury upon the facts. The judge takes the case from the jury only when it is susceptible of but one just opinion.
“In this case there were no eyewitnesses, and the injury resulted in death. The plaintiff sues as administrator of the person killed. There was some evidence of negligence on the part of the- defendant, and there was some ground for an opinion that the intestate was negligent also. But the plaintiff put in such proofs of the attendant facts as were attainable under the circumstances, and from these it was by no means clear that the intestate was in fault at all. There was room for the conclusion that he was not. We think the case ought to have gone to the jury.”

In Adams v. Iron Cliffs Co., 78 Mich. 271 (44 N. W. 270, 18 Am. St. Rep. 441), Justice Morse, in speaking for the court, said:

“This brings up squarely the question of contributory negligence in a case where there is no eyewitness of the accident. In such a case, while the rule is not relaxed that the plaintiff must show that his intestate was without fault, yet the presumption, in the absence of any evidence to the contrary, obtains that the deceased used ordinary care and caution in attempting the crossing, and such presumption is sufficient under the rule to permit the plaintiff to recover upon showing negligence in the defendant. McWilliams v. Mills Co., 31 Mich. 274; Mynning v. Railroad Co., 59 Mich. 257 (26 N. W. 514); Id., 64 Mich. 102 (31 N. W. 147 [8 Am. St. Rep. 804]); Id., 67 Mich. 680 (35 N. W. 811); Kwiotkowski v. Railway Co., 70 Mich. 549 (38 N. W. 463); Railway Co. v. Clark, 108 Ill. 113; Teipel v. Hilsendegen, 44 Mich. 462 (7 N. W. 82).”

See Van Doom v. Heap, 160 Mich. 199 (125 N. W. 11); Richardson v. Railway Co., 176 Mich. 413 (142 N. W. 369).

The reason for this rule of law is that life is dear to the normal person, and that he will not willingly do the thing which will extinguish it, but, on the contrary, will exercise due care to preserve it. In this case it was shown that Mr. Teachout was a healthy, robust man, 24 years of age. He was skillful in his work, and his associates say he was a careful, prudent man. Neither the foreman nor the other man saw anything in his conduct calling for criticism. Just at the time when the thing happened which resulted in his death both of them had their attention directed away from him so that they did not see what happened. The agency which caused the mischief was a silent one of such deadly character that its work was done so quickly that the time was hardly appreciable. We think the rule stated by the trial judge was the correct one.

4. Did the decedent assume the risk? There has been much confusion in the use of the terms “contributory negligence” and “assumed risk.” They are often used as though they meant the same thing, which is not a fact. In Bauer v. Foundry Co., 132 Mich. 537 (94 N. W. 9), it is said the doctrine of assumed risk rests upon the theory of a contract, citing Narramore v. Railway Co., 96 Fed. 298, 37 C. C. A. 499 (48 L. R. A. 68). In Bradburn v. Railroad Co., 134 Mich. 575 (96 N. W. 929), Justice Carpenter, speaking for the court, said:

“The principle of assumed risk rests upon the ground that it is an implied contract between the employer and the employee that the employee shall assume the risk of all dangers obviously incident to his employment. See Bauer v. Foundry Co., 132 Mich. 537 (94 N. W. 9). The employee assumes the risk of all dangers obviously incident to his employment, whether the employer is negligent or free from negligence in exposing him to those dangers.”

Clearly no contract relations existed between the deceased and either of the defendants, nor did the relation of employee and employer exist between them.

5. Is the Grand Rapids-Muskegon Power Company relieved from liability? This defense is based upon the claim that it was selling the electricity under a contract providing for its delivery at a point reached before the place of the accident, thereby making the current the property of the interurban road, and that such contract in terms provided the power company should not assume any responsibility for the transmission line. We quote from the brief of the interurban company:

“On June 2, 1911, at the time of this accident, the machines at Walker were running, and cars were in operation east of Coopersville; in fact one was approaching the high bridge at that time. Electricity that had not reached the transformers and meter, and hence was still the property of the power company, was then passing over the entire transmission line from Walker to Fruitport. This transmission line carried an alternating current to a great number, probably 100 customers of the power company, a portion of which current or energy was taken off, converted into direct current by the railway company’s transformers or rotary converters at the substations of Walker, Coopersville, and Fruitport, and was then metered by watt meters; the railway paying for the current there taken and delivered. Other portions of this alternating current carried by the same transmission line was taken off, transferred, and metered presumably in the same way by the town of Coopers-ville and other patrons of the power company there. On the day and at the hour of the accident the power company was feeding current into the transmission line at both ends, and this was being done regularly as the record shows, in emergency.”

This statement seems to be warranted by the record.

In Thomas v. Gas Co., 108 Ky. 224 (56 S. W. 153, 53 L. R. A. 147), a like defense to the one interposed here was urged. In disposing of the case, the court said:

“The street railway company owned and had charge of the wire, and the gas company generated and sent in to the wire the electricity. The gas company received so much per month for supplying the wires of the street railway company with electricity to operate its line of street cars, and it had no interest in the car line, except that its income might enable it to pay the bill for the electricity. That there was a duty imposed by law upon the street railway company to keep its wires properly insulated, so that those whose business or pleasure brought them in dangerous proximity to them might' be protected from the deadly current which they conducted, cannot be questioned. Without the electric current which the gas company sent through them, contact with them was harmless. When so charged, they became instruments of death, threatening the lives of those who, perchance, came in contact with them. Did the fact that the gas company supplied the harmless wires with the force which converted them into a death-dealing agency make it responsible for the injury which resulted in the death of the intestate? The exact question submitted has not, so far as we are aware, been answered by any court of last resort. Some cases are cited by counsel; but the facts of those cases are not similar to the facts of this case. Therefore we must find some signboard along the new road, and, if we cannot so find the way to a proper conclusion, we will be forced to swing a sickle into the field of reason, and there harvest a principle which can be crystallized into a just rule to apply to cases like this one. By the machinery in use by the _ gas company, it produced and controlled the electricity. It is presumed to, and did, know the dangerous force it was putting in motion, and that it constantly imperiled the lives of those who passed along the streets where the wires were in use, unless they were properly swung and insulated. Knowing the dangerous character of the force it supplied, it was bound to use the care commensurate with the danger of its employment, so as to protect those who passed along the streets or places where the wires were placed. * *' * Considering the dangerous character of the force produced by the gas company, there was a duty imposed on each to see that the wires into which it was sent were properly insulated. The danger was exactly the same whether the wires were owned by one or both of the companies. When one through the instrumentality of machinery can accumulate or produce such a deadly force as electricity, he should be compelled to know that the means of its distribution are in such condition that those whose business or pleasure may bring them in contact with it may do so with safety.
“It is argued on behalf of the gas company that a manufacturer of electricity, who delivers it to another, and thus parts company with it, — its dangerous character not being concealed, and such other person being competent to look after and control it, — does not owe any duty to any one. * * * One must use his own property so as not to do injury to another. The use of the wires would have been harmless, except for the current of electricity; and that current was sent into the wires by the appellee, producing the death of plaintiff’s intestate. Then it was the use of the force (its property) it generated which produced the injury. If the wires were not properly insulated, and the death resulted therefrom, then both companies are liable, as it was the duty of the street railway company to have its wires properly insulated, and there was a duty resting on the gas company to see that it was done, before charging them with electricity.”

It is not necessary to go as far as this in the instant case, as the power company was using the line to transmit electricity which it was selling to other customers than the railroad company. We think the principles stated in the recent case of Sykes v. Village of Portland, 177 Mich. 290 (143 N. W. 326), are applicable here. It is not necessary to restate what is there said.

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

The judgment is affirmed.

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


source: Caselaw Access Project

author: Moore, J.

license: Public Domain

text:
    BROWN v. DETROIT UNITED RAILWAY.
    1. Amendments — Limitation of Actions — Negligence — Street Railways — Operation of Cars.
    An amendment of plaintiff’s declaration, allowed at the trial, after a new action had been barred by the statute of limitations, so as to change the allegations of negligence from failure to keep a switch in repair, to negligence in operating defendant’s street car at a dangerous rate of speed, so that the car split the switch and injured plaintiff, the rear wheels leaving the track and entering on the switch, was a proper exercise of the court’s discretion.
    2. Street Railways — Evidence — Ordinance of City — Negligence.
    On the trial of a personal injury action for so operating a street car that its rear wheels left the track at a switch and the car swung across the street striking an automobile in which the plaintiff was riding, it was competent, on the issue of negligence, to introduce an ordinance of the city in which the accident occurred requiring the motorman to reduce the speed and get the car under control, in approaching a switch or curve; the .ordinance could not be said to have been intended for the benefit of passengers only.
    3. Same — Rules—Street Cars, Operation of.
    But rules of the defendant street railway fixing the care required of its motormen and warning them to approach switches with the car under control, were inadmissible in evidence: no prejudice, however, resulted from the receipt in evidence of such rules, as to the defendant which claimed that its car was not running too rapidly and that the motor car ran into the street car.
    4. Damages — Verdict—Personal Injuries.
    $7,500 for injuries to plaintiff’s head and permanent injuries, held, under the evidence, not so excessive as to require a reversal of the judgment
    Error to Wayne; Van Zile, J.
    Submitted October 17, 1913.
    (Docket No. 57.)
    Decided March 27, 1914.
    Rehearing denied June 4, 1914.
    Case by Rose E. A. Brown against the Detroit United Railway for personal injuries. Judgment for plaintiff of $7,500. Defendant brings error.
    Affirmed.

      Corliss, Leete & Moody (William G. Fitzpatrick, of counsel), for appellant.

      J. Emmet Sullivan and Frank H. Watson, for appellee.
   Moore, J.

The plaintiff was riding in the automobile of one Mabel Wright on the evening of December 5, 1908, between 4 and 5 o’clock. They went down Woodward avenue from the Grand boulevard, intending to go to the retail shopping district, passing under the railroad viaduct. Defendant has a double-track line on Woodward avenue, and, at the time of the accident mentioned later, had a switch connection with its easterly track for the purpose of turning cars onto a loop which ran across the south-bound track and the street, and around a building, making a complete loop, so that north-bound cars making the loop could go down town.

We quote from the brief of counsel for appellant:

"All interurban traffic leaving the city via Woodward avenue ran over this switch. At about 4:25 p. m. a limited ‘Romeo Division’ interurban car, which had taken air south of Piquette avenue, was proceeding northerly in the direction of the switch point, when it was observed by Miss Wright, the driver of the automobile. Just where this observation was made, and the speed of the interurban and automobile at that moment, are matters that are in dispute on the evidence.
"Plaintiff claimed that when Miss Wright first saw the interurban it was proceeding northerly at from 15 to 20 miles an hour, and was then at or about the north curb of Piquette; that the automobile was about at the crest of the hill coming up out of the subway, and the auto was running at from 8 to 10 miles an hour; that as she approached the curve track she slowed down, and within two or three feet of the northerly rail of the curve she stopped her auto completely until she observed the front trucks of the interurban go over the switch, when she started up again, but had scarcely gotten under way when the rear end of the interurban swung westerly across Woodward avenue and upon and against the auto, badly damaging it and seriously injuring herself and the driver, Miss Wright.
“It is not disputed that the rear trucks of the car split the switch, but defendant claimed that the interurban was not going to' exceed four or five miles an hour; that the switch was properly set for northbound traffic; that as the front trucks struck the switch the power was turned off; that, as soon as the motorman could know that the rear trucks had split the switch, he applied his air; that the brake rod broke; that he then reversed the car; that it stopped at once; that it lay angling across both tracks and the avenue at about 15 degrees from the north-bound track with the front trucks on the north-bound track and the rear trucks on the curve track, all eight wheels being on the track, and there being a space of from 8 to 10 feet between the westerly end of the car and the west curb of Woodward avenue, when it finally came to rest; that the automobile ran into the car after it had come to rest; and that the auto was being operated at the rate of from 18 to 20 miles per hour. Defendant also claimed that the reason for the splitting of the switch was not proven, or that at least it was not shown to have been the result of any of the causes alleged in the plaintiff’s declaration.
“Plaintiff’s declaration was amended at the trial over objection, the case went to the jury, who rendered a verdict for plaintiff of $7,500, upon which judgment was duly entered. Motion for a new trial was made and denied, and the cause is brought here on error.”

There are many assignments of error. We again quote from the brief:

“The plaintiff should not have been allowed to amend her declaration on the trial. The statute of limitations had run against all new matter necessary to be pleaded in order to admit evidence and sustain a recovery and all new items of damage. The cause of action, if any ever existed, arose on December 5, 1908. The statute had run December 5, 1911. The amendments were allowed on the trial, which commenced November 17, 1912.”

The material parts of the declaration as amended are as follows; the amendments being in italics:

“And the plaintiff further avers that thereupon it became the duty of defendant to properly and safely construct said loop and switch, and in maintaining the said loop and switch connecting therewith and appertaining thereto, to keep the same in due repair, especially that portion of said loop and switch by which cars going northward on the east track aforesaid are caused to be switched onto said curve, or loop, to wit, the switch and switch point thereof, and the hinges securing the same to the said curved track, so that the said switch would not become so loose and unstable as to be shaken .out of place by the vibrations and shocks of approaching cars, thereby causing the said cars to be thrown over, without warning, onto said loop and approaches to same; and it was the duty of the motorman, or agent or servant of the said defendant in operating its cars going northerly on said east track, on approaching the said switch connecting as aforesaid with said loop, to slow up his car and stop the same, keep a sharp lookout, and otherwise exercise due care to see that the said switch was in proper position not to permit his car operated by him from going over onto the said loop suddenly and without warning, to persons on foot or in vehicles using that portion of said Woodward avenue between the said east track and the westerly line of said Woodward avenue; and it was the duty of said motorman, agent, or servant to approach this said switch at a slow rate of speed, in order that the car should be under complete control of said motorman in order that said car would not split said switch and leave the east track and run over and ohto said loop switch, and in order that if said switch was not in order, and if said car should split said switch and start to leave said east track and go over onto said loop track, that said motorman could immediately stop his car and avoid any danger that might occur to the passengers in said car and to others lawfully using said street for traffic. Plaintiff avers that the city of Detroit by ordinance approved August 15, 1899, prescribed the manner in which cars should approach switches, and provided among other things, by section 3 of said ordinance, that ‘it shall be the duty of the motorman in charge of any car in said city to slacken the speed of said car when rounding any curve or approaching any switch, in order that said car shall be run around said curve or upon said switch with the least possible danger to the passengers upon said car; and the motorman shall use power sufficient to enable the car to turn the curve and no more; which said ordinance was on said 5th day of December, 1908, in full force and effect; and it then and there became and was the duty of said defendant by its said motorman, agent, and servant, to observe said ordinance and use due care and slacken the speed of said car and have his said car under complete control, so that he could immediately stop the same and avoid accidents resulting from said car splitting said switch and leaving said east track over onto said loop and switch; and it was the duty of said defendant, its agent and servant, to approach this said switch at a slow rate of speed, so as not to permit the car suddenly to leave the east track and be thrown out over and onto the said loop and switch. * * * In addition to the duties aforesaid, it thereupon became and was the duty of the said defendant, in approaching said switch, to cause its car to slow in its speed and to bring said car to a standstill and to adjust the said switch so that the car would not go over onto said loop and collide with the said automobile in which said plaintiff was riding, and it was the duty, of the defendant^ its motorman and agent, both by reason of the ordinance of the city of Detroit, aforesaid, and at common law, to cause the said car to approach said switch slowly, so that the said car, or any part thereof, would not go over onto said loop and collide with said automobile, and in order that said car as it approached said switch would be under complete control, so that it could be instantly stopped by the motorman of said car, and thus avoid injury to this plaintiff provided it did split said switch and go from said east track over onto said loop, and it was the duty of the said defendant to properly construct and keep said switch in good repair, and to prevent it from becoming loose and liable to be shaken by the jarring and vibration of approaching cars, thereby displacing it and causing the said car to leave the said east track and go onto the loop aforesaid and collide with said automobile. And plaintiff alleges that said defendant did not do its duty in the premises, but, on the contrary, made a breach thereof, in that it carelessly and negligently, and in utter disregard of the ordinance aforesaid or reasonable prudence, did not slacken the speed of said car as it approached said switch; but, on the contrary, carelessly and negligently caused its said car to approach the said switch of said curve at a high and dangerous rate of speed, to wit, 20 miles per hour, and at a rate of speed much in excess of the ordinance of the city of Detroit then in operation, which limited the speed of cars within the three-mile circle (said switch being within said three-mile circle) to an average of 10 miles per hour for the whole length of any route within said circle, causing the said switch, by the vibrations and jarring of its said cars, to be shaken loose, so that the wheels of the rear truck of the said car split the said switch, and the car swung violently over on the north track of the said curve or loop, and carelessly and negligently did not slacken the speed of said car, but run at said high rate of speed and approached and onto said switch at said high rate of speed, so that said motorman did not have said car under complete control in order that he might stop the same immediately if said car did split said switch and go from the east track over onto said curve, and thus avoid injury to the passengers on said car and to others and to this plaintiff particularly, who was at the time lawfully and with due care using said street as heretofore and hereinafter set forth. And plaintiff further avers that the said defendant did not properly, and safely construct the said switch connecting the east track of its main line with said loop, nor keep the same in good and due repair, but carelessly and negligently allowed the same to become loose, worn, and easily shaken and displaced by the vibration and jarring of the approaching cars, so. that it became liable to throw the said car, or some portion thereof, over onto said loop suddenly and without warning; and the said motorman or servant of the said defendant in charge of said car of said defendant did not stop said car or slacken its speed, and did not adjust the said switch which was not in proper position to prevent the wheels of said car from splitting same, in consequence of which, and because of the great speed aforesaid, the rear trucks of said car split the said switch and proceeded with great rapidity and violence over onto the north track of the said switch and loop.”

It is clear that the causé of action, if any, grows out of what happened to Mrs. Brown on the evening of December 5, 1908, while she was in the automobile, when the interurban car and the automobile came in contact with each other. The original declaration and the amended declaration relate to the same injury growing out of the same collision. The ruling of the trial judge is justified in what is said in City of Detroit v. Wayne Circuit Judge, 125 Mich. 634 (85 N. W. 1), and the cases cited. This case is so accessible we think it unnecessary to quote from it. See, also, Smalley v. Terra-Cotta Co., 113 Mich. 141 (71 N. W. 466).

This conclusion makes it unnecessary to discuss many of the assignments of error as to the admission of testimony.

It is said the court erred in allowing the introduction of the ordinance of August 15, 1899, concerning the duty of defendant to passengers in the operation of cars over switches. It is urged the ordinance was incompetent as bearing upon the question of negligence, and also that it was passed for the protection of passengers, and not for the safety of persons in the street. In Mollica v. Railroad Co., 170 Mich. 96 (135 N. W. 927), it is held that the violation of an ordinance is admissible as bearing upon the question of negligence, citing several cases. In Morgan v. Railroad Co., 162 Mich. 573 (127 N. W. 683), a statute for the regulation of the making up of trains was construed. The trial court held it had no application to the person in the street, but was passed for the protection of passengers only. This court held it was a police regulation, and the beneficial effects of this statute to travelers upon the .streets and highways are quite as apparent as they are to passengers, and the trial judge gave the statute too narrow a construction. We think the same principle applies here.

We now approach a question which presents difficulties in its disposal. The plaintiff was allowed to introduce in evidence rules of the company reading as follows:

“Rule 336. Cars must approach all switches cautiously. Motormen must be sure they are Safe before passing them, and must exercise extreme caution whenever cars occupy switches, especially passenger cars taking on and off passengers. In such case cars must be under complete control.
“Rule 337. Flying or running switches is forbidden.
“Rule 229. Motormen will approach switches with cars under complete control.”

Not much emphasis was placed upon the objection to the admission of these rules, and the trial judge thought them admissible for the same reason that the ordinance was admissible. Under Dixon v. Railway Co., 155 Mich. 169 (118 N. W. 946), it must be held that the rules were not competent.

The question yet remains: Was their admission reversible error? We have already called attention to the claims of the respective parties as stated by counsel for appellant. We cite some of the testimony. Mabel Wright, after testifying to driving an automobile six years, some of the time making 75 and 100 miles a day through different parts of the city, and that she had learned to judge closely the rate of speed of moving objects, said:

“We started from the house somewhere between 4 and 5 o’clock; I should judge about half past 4. Drove down to Woodward avenue from Third avenue and West Grand Boulevard, I should judge, about 8 miles or 10 miles an hour. Turned Woodward going south about the same speed. We came up the viaduct and came to where the car turns in there, and I saw a big car coming at what seemed to be a very high rate of speed. It was coming at a rate of 15 or 20 miles an hour. I always take the precaution before going over the track to slow up, and I saw this big car coming. I didn’t know whether it was going to turn into the switch. I saw the front truck pass over the switch, and naturally supposed the car was going on. The next thing I saw the rear end swing around. I had approached quite near that curved track there, and I checked my automobile. As soon as I saw that the front truck crossed, I immediately put on my speed, sent the car ahead. I did not shut off. my power at all, so it immediately started right up.
“Q. Why didn’t you get out of the way when you saw the hind trucks had split the switch and was coming towards you?
“A. It would be impossible; I could not get out of the way. I was going ahead as fast as I could.
“Q. About what rate of speed were you moving at that time?
“A. I could not say; the car was upon me, and I had to do that way. The minute I saw the car, it was on me instantly. I did not have any opportunity to get out of its way. I was on the front seat. It struck my car on the side, from the condition the car was in. The wheels were off and the frame was bent, absolutely demolished. It left me behind the steering wheel, bound in there. I was not able to extricate myself after the accident; they dug me out. I did not know where Mrs. Brown went to; I didn’t have time to. After I had been extricated, I found Mrs. Brown, after I had my head stitched up and taken home. They took us both in the Cadillac, and put some bandages on us. Mrs. Brown had her head bandaged; we were both in turmoil. Mrs. Brown appeared there at that time to be delirious. They took us both home in a car. I don’t know who the car belonged to; to the Cadillac Company I think. Two gentlemen took us home. Mrs. Brown went with me. When she got home, her appearance at that time was delirious, knew nothing of what she was doing or saying. I know what doctor -it was that attended us at the Cadillac. I remember what he told me. It was Dr. Kelley. After we got home, Mrs. Brown was immediately put to bed, and a nurse sent for immediately. I went to bed. Mrs. Brown remained in that delirious condition for many weeks. * * *
“Q. Have you ever driven that car since that time?
“A. No, sir; nor any one else.”

The testimony of the plaintiff is much briefer in relation to the accident than we have quoted from Miss Wright, but it is much in the same line. There was other testimony on the part of plaintiff tending to sustain her claim as to the speed of the car. One of the witnesses testified the car was going at least 15 miles an hour.

“I was accustomed to riding upon street cars in Detroit at that time. On the 5th day of December, along about 4 o’clock or a little after, I took a northbound Woodward avenue car, going to Bochester— one of the ordinary big suburban cars that go out Woodward avenue.
“Q. Do you recollect the accident very clearly, Mr. Schorn ?
“A. Most decidedly.
“Q. Were you on that car when the car split the switch?
“A. I was standing just inside the rear door, or rather in the rear doorway.
“Q. What force did it use in splitting that switch, so far as you were concerned? What did you observe?
“A. Why, personally, I was thrown from the car with sufficient violence to suffer an injury to this day.
“Q. Did it throw you completely from the car?
“A. It left me in the middle of the track, where the rear part of the car was; the car was over to the outside of the street and practically blocked the entire street.
“Q. Were you thrown clear from the platform?
“A. Right in the center of the right-hand car track going out of the east track, where the rear wheels over which I had been standing had passed. The rear wheels were almost over the curb on the west side of the street. .
“Q. Now, before going out there did you know of the car stopping before it split the switch, the last stop it made?
“A. It stopped one block south from where the accident happened.
“Q. Did it stop at all after it stopped at that distance, of about a block, until it split'the switch?
“A. When we left the air station, the motorman threw his control over as far, I should say, as possible. * * *
“Q. You may state whether the car picked up speed immediately on leaving this air station?
“A. The car picked up speed very rapidly.
“Q. Were you accustomed at that time to judge and estimate the speed of street cars and of moving objects?
“A. Yes, as far as a layman can judge such a thing. * * * I should say at the time it was going at the minimum of 15 miles per hour. I was paying particular attention to the way the car picked up speed and was running at the time, because I had to brace myself to take care of the momentum of the car. I was braced at the time they struck the switch. I had my left hand against the opposite side of the doorway, with my back toward the east.
“Q. Now, state what the fact was as to whether that car slackened up any in rate of speed as it approached the switch.
“A. The car did not slacken the speed from the time it started. The speed increased from the moment it started until the time of the accident.”

On the part of the defendant, the city roadmaster of the defendant was called as a witness. He did not see the accident, but described the mechanism of the switch. On his cross-examination the following occurred :

“Q. If the switch was aimed to the left and locked, thus locking the switch, and there was nothing the matter with the switch, it was not affected at all, and the car was running at a slow rate of speed over the switch, would there be any possibility of it splitting the switch and going in on the curve?
“A. I do not see that there would be; no, sir.”

The conductor of the car was sworn and testified on his direct examination in part:

“Q. Will you state to the jury how fast, in your opinion, the car was going when it got so that the front end of the ear was near the switch point south of the switch point, according to your best judgment.
“A. About five miles.
“Q. You mean to say about five miles an hour?
“A. Yes, sir.
“Q. What was the first thing you knew of an accident happening when you came along?
“A. I did not know.
“Q. When did you first know that anything had happened? ■ '
“A. After the rear trucks split the switch.
“Q. After the rear trucks took the switch, what did you do?
“A. I was standing just inside of the door at the rear end of the car.
“Q. And then what did you do?
“A. I got off and went to see what was the matter and take the witnesses or somebody who saw the accident. When I first got off/H went to the automobile. By the time I got off, the automobile was there then. I got off the rear way. I do not remember where the wheels of the rear truck were at that time. The accident happened about 4:25.
“Q. You may state whether the car went any distance straight after you felt the rear wheels go onto the curve track, how soon it stopped?
“A. Why, I should judge about five feet.”

The motorman was sworn. He testified, in part:

“As I approached the switch I observed it, and knew what condition it was in. My observation showed me that the point of the switch was tightly against the rail, I should say all right for the cross-over as far as my ability and knowledge of the switch, as far as my duty was concerned, it was fair to go ahead. At the time I pulled away from Piquette avenue, I had in mind the switch that I was coming to. I am able to tell the jury about how fast the car was going, as the south end of it approached that switch point and got near to it, about four or five miles an hour, about four miles an hour as the car was going along. My front trucks went on the switch. Nothing was wrong with the front trucks as they went on. Then I threw off my current. I never have any current on or juice on when the hind end strikes the switch. The next thing I felt the hind end of the car going this way to the south. I cracked my air on. The result was I broke my brake in two. Then I pulled the reverse. It was right there, and I pulled it. The effect was she stopped instantly. * * * I jumped out of the front end of the car and ran to the barn for a bull rope, to pull it right back on the track. When I was running for that bull rope, I heard a crash that drew my attention, but I was still hollering for the bull rope, and when I got back the automobile had run into the back end of the car, and, directly I stepped around the car, I saw the automobile was considerably damaged. I did not hear the noise, or any crash, or anything before I got off the car; everything was practically silent. With reference to the rear end of the car when I heard this crash, I was about Amsterdam avenue hollering for the bull rope. When I saw that, I run around there. I saw the people there, and I ran to see what had occurred.
“Q. State to the jury how far your car went north after the rear wheels split the switch, when you felt them split the switch.
“A. Before I had felt it, that it would notify me that the trucks had struck the south-bound track, but after it left the south-bound I did not go over 8 feet, so that it left a space of 8 or 10 feet between the back end of the car and the curb, and that was room enough for anybody to drive around behind. There was that much space; there was 8 feet anyway. The car quit swinging around before I ran for the bull rope. It had stopped before I heard the crash. I had to run about 100 feet, I presume. When my car came to a rest, it was north of Amsterdam avenue, and the car barns at that time were south of Amsterdam. I had gotten up to Amsterdam avenue when I heard the crash.”

Other witnesses were sworn whose testimony tended to corroborate the claim of the motorman.

The trial judge, in his charge to the jury, after stating the claim of the plaintiff, substantially as - stated in the brief of appellant’s counsel, said to the jury:

“Now, the defendant’s claim is an entirely different claim. The defendant claims that Miss Wright was driving the automobile, that is not disputed, that these two parties came up to the automobile, that the car ran upon the track, and that the front wheels went upon the main track as they intended it, and that, when the hind truck came to the switch, it was split and the car swung around. Whereas, the plaintiff claims that the car was swung around so that there was not room enough to pass between it and the curb. The defendant claims that the car swung around and stood across the track at an angle, that has been described, and that there was about eight or ten feet space between the curb and the end of the car, and a space entirely sufficient for the automobile with the ladies that were driving it to pass through, and that the street car came to a rest or stop, and that after it had stopped, and after stopping for a sufficient time for an accident to be avoided by the person driving the automobile had they used diligence, that, after it had stopped, this driver of the automobile, Miss Wright, ran the automobile into the car at rest upon the track, and that the accident, and injury, if any, was occasioned by reason of the negligence of the driver of the automobile, and that the driver of the car for the company, the defendant, was entirely without negligence, because the car was standing at rest upon the track at the time it was hit by the automobile, and that it might have been avoided by the plaintiff or the driver of the automobile.
“Now it appears in this case, by undisputed proof, that the plaintiff in this case, Rose E. Brown, was riding in the automobile in question, which was being driven by Miss Wright, as a voluntary passenger at the time of the accident. Therefore, I charge you, as a matter of law, that the negligence of Miss Wright, if you should find her guilty of negligence in the operation of this automobile, or in any way contributing to the accident, must be imputed to the plaintiff. That is to say, the negligence of Miss Wright would be the negligence of the plaintiff, so far as this case is concerned. The burden of proof, the burden of proving the case as alleged in the declaration of the plaintiff, rests upon the plaintiff. The plaintiff in order to recover must prove by a preponderance of proof that the defendant on the occasion in question was guilty of negligence in the manner and form set forth in her declaration, and that such negligence was the direct or proximate cause of the injury complained of, and she must further show by the same sort of proof that she, the plaintiff, and said Miss Wright, the driver of the automobile, with whom she was riding, were free from negligence or from any negligence which would contribute to the accident or the injury. These are the two propositions that must be made out by the plaintiff as stated, that this injury, this accident, was caused by the negligence of the defendant as they have alleged, in their declaration, and, second, that the plaintiff and Miss Wright were in no way guilty of negligence which in any way contributed to the accident; that they, being free from negligence, suffered this injury solely because of the negligence of the defendant. I therefore charge you that if you find as a matter of fact that the driver of this automobile, on the occasion in question, drove the automobile into the street car after the same had come to a stop or rest, as is claimed by the defendant, * * * and that resulted in the injury, then the plaintiff cannot recover, because in such cases there would be no proof of negligence upon the part of the defendant. * * *
“Now, as to the claim of negligence in the operation of the car: Should you find in this case that the accident resulted because of running this car at an excessive and negligent rate of speed over this switch, that is, at such a rate of speed that an ordinarily prudent man under just such circumstances would not adopt, and you further find that neither the plaintiff nor the driver were guilty of contributory negligence, then in that case your verdict should be for the plaintiff. Now, I have already said to you, and perhaps may repeat it, the diligence which is required, the care and caution which is required in this case, is ordinary diligence and ordinary caution. It is that care and that caution which ordinarily prudent men would adopt under just such circumstances. It is that care and caution in this particular case I have just mentioned that án ordinarily prudent motorman upon this particular car, under just such circumstances as this, would adopt in running that car. Now, the motorman, the servant of this defendant, must use ordinary care in the running of this car; as I say, should you find that this car was run at an excessive or negligent rate of speed, and that, because of this, this accident occurred, and it occurred without any contributory negligence on the part of the plaintiff, then and in such case your verdict should be for the plaintiff. ❖ ❖ ❖
“Now, gentlemen, to sum up briefly, if you find in this case that this claim or theory of the defendant is true that this car was thrown around by the splitting of the switch, and that it remained at rest some eight or ten feet away from the curb, and at a distance where an automobile could have passed it, and should further find that that car was there at rest, and at rest for a sufficient time for these persons to have stopped this automobile and avoided this accident, and that it came down there at such speed and ran into the car there at rest upon the track; if you find that claim to be true, then the plaintiff cannot recover, and your verdict should be for the defendant.”

It is clear from what we have quoted from the brief, from the testimony, and from the charge of the judge, that the case was tried by the plaintiff upon the theory that the car approached this switch at a rapid rate of speed, which caused the switch to split; that the rear part of the car was thrown around and against the automobile, crushing it in and doing the injury. On the part of the defendant, the case was tried upon the theory that the car approached the switch at the rate of four or five miles an hour, and under control, and that, when the rear truck split the switch, the car was instantly stopped with the rear of the car eight or ten feét from the curb, and that after the interurban car was stopped there was plenty of space between it and the curb for the automobile to pass, that Miss Wright, instead of taking this opening, ran the automobile into the car. These theories were wide apart, and we do not think the admission of the rules affected the result, and therefore we say their admission does not constitute reversible error.

It is said the case should be reversed because the verdict is excessive. The trial judge filed written reasons for overruling the motion for a new trial, and declined to interfere upon this ground. The injury occurred in December, 1908. The case was tried in November, 1912. One of the witnesses testified in relation to the plaintiff:

“I was acquainted with her before she was hurt. I had known her prior to that some 5 or 6 or 7 years. She had lived with me most of the time. I know of her general health prior to the accident. She was the most splendid type of woman I ever met; I never knew of her being sick. I went with her as a companion. Prior to being injured, she could walk for miles. I knew her to go to Belle Isle, walk across the bridge, walk around the island, and walk back, and be in splendid condition. I have known her to walk down to Palmer park, walk down to the 7-mile road, and then walk back, and would not even know she was tired. She walked erect. Most perfect carriage and most perfect figure prior to the injury.”

There was testimony that she was confined to her bed three months, and to her house seven months, as the result of the injury. Her attending physician, testifying at the trial nearly four years after the accident, says that in his opinion she never will be well. She was a witness in her own behalf and describes in detail what followed her injury. Some of her testimony is not connectedly given. Counsel did not cross-examine her. There was testimony offered on the part of the defendant tending to show she was not much hurt, but there was an abundance of testimony, if believed, to justify the verdict. The jury and the trial judge had the great advantage of seeing and hearing the plaintiff, and the other witnesses, and we are not inclined to say as a matter of law that a new trial should be granted because of the amount of the verdict. We have considered the other assignments of error, but it is not necessary to discuss them.

Judgment is affirmed.

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


author: Steere, J.

text:
    BROOKS v. BELLOWS.
    1. Pleading — Bill of Particulars — Breach of Contract.
    On the trial of an action for labor performed under a logging contract, it was erroneous to permit a recovery for an item of damages, claimed to arise from breach of the contract, but not specified by any item of the plaintiff’s bill of particulars.

      2. Logs and Logging — Contracts—Measurements.
    If, as claimed by the defendant, both parties selected and agreed upon a scaler who measured the timber included in a logging contract, the trial court correctly advised the jury that his scale was conclusive upon both except that fraud or gross mistake might be set up: and the court correctly left it to the jury, under disputed evidence, to determine whether they had agreed upon a scaler.
    3. Same — Evidence.
    But if, as plaintiff contended, the parties were unable to agree upon a regular scaler to represent both, as contemplated by the contract, and defendant’s own scaler, by agreement, was to act so long as the scale that he furnished to plaintiff was satisfactory, defendant could not repudiate the scale furnished, under his instructions, and accepted by plaintiff, and, after the logs were removed • and sawed, compel the latter to accept a different scale.
    4. Same — Performance—Excuse for Breach.
    Where defendant deposited a- large sum of money in a bank, as provided in the contract of the parties, to be drawn on by the plaintiff for logging work, the burden was on the plaintiff to show that he paid out the deposited funds for labor and supplies, as agreed: proof that the defendant did not furnish more money on request, without vouchers or proper evidences of due expenditure of the deposits, was insufficient.
    Error to Benzie; Lamb, J.
    Submitted October 16, 1913.
    (Docket No. 54.)
    Decided March 27, 1914.
    Assumpsit by Oscar H. Brooks against Edwin H. Bellows for work and labor performed under a special contract and for damages for its breach. Judgment for plaintiff. Defendant brings error.
    Reversed.

      D. G. F. Warner, for appellant.

      M. G. Paul, for appellee.
   Steere, J.

This action was brought by plaintiff to recover a balance claimed due him for labor performed on a logging contract with defendant, and two small items for teaming and board in connection with such contract. Defendant was the owner of 160 acres of timber land located in Weldon township, Benzie county, Mich., upon which was a growth of mixed forest products consisting of hardwood, hemlock, pine, and cedar, which he desired lumbered, and, on April 20, 1911, he entered into a written contract with plaintiff to lumber this tract, the material parts of which are as follows:

“This agreement made and entered into this 20th day of April, 1911, by and between E. H. Bellows of the village of Frankfort, Benzie county, Mich., party of the first part, and O. H. Brooks of the village of Thompsonville, county and State aforesaid, party of the second part: Witnesseth: That the said party of the first part hereby agrees to let to said party of the second part, the job of cutting all of the timber in manner as hereinafter specified, off from the following described land, to wit: The southwest quarter of section 31 of the township of Weldon, Benzie county, Mich.
“Conditioned: That the said party of the second part hereby agrees to cut into sawlogs all of the timber on said above described lands (the size of said timber to be cut to be determined by said party of the first'part), during the summer of 1911 and winter of 1912. The price to be paid for the cutting, skidding and putting afloat on the hardwood into Betsey river, in the spring when directed to do so by said party of the first part, shall be $3.35 per thousand. The price to be paid for the cutting, skidding and putting afloat of the hemlock into said river shall be $2.25 per thousand ; the same to be put afloat not earlier than October, 1911. The price to be paid for the cutting, skidding and putting afloat of the cedar into the river shall be $4 per thousand; the same to be put afloat at any time when scaled.
“As much as possible of the hardwood logs are to be cut 14 feet long, the balance to be cut into 12 and 16-foot logs. All hemlock to be cut into 18-foot logs, as is possible to do so; the balance to be cut into 12, 16 and 14-foot logs. All but elm logs are to be cut 16 feet long and peeled in the woods when cut and butted if necessary.
“The second party also agrees to cut all logs square off at the ends so as not to leave any stubs at ends; to cut all logs so as not to leave any breaks in them if made by the falling of the timber; to 'also cut and put all hardwood logs upon good skids in the woods as early as September 1st, 1911. And also all hardwood logs to be banked on good skids at the Betsey river, so as not to allow any logs to rest on the ground or in the water until put afloat in the spring of 1912. That said party of the first part agrees to pay $1.75 per thousand on the hardwood when scaled on skids on the bank of the river, and the balance of said $3.35 when put afloat as aforesaid, and in case said logs are not put afloat as rapidly as said first party may desire, said party of the first part reserves the right of putting on men sufficient to put said logs afloat when he desires to make the drive, and the expense so incurred to be charged to said second party, and to be taken out of his contract price.
“Said second party also further agrees to peel off all hemlock bark closely and in good shape and to remove it out of the woods in a suitable place, easy to get to, so that teams can draw away full loads; and when so delivered said party of the first part agrees to pay to said party of the second part $3.50 per cord.
“It is mutually agreed by the parties hereto that all moneys to be paid on this agreement shall be deposited in the bank at Thompsonville, to be drawn out in checks, only for labor and supplies, and in no case to be drawn in excess of the amounts hereinbefore stated, and the‘balance to be paid when job is completed.
“It is also mutually agreed to by the parties hereto that all timber herein mentioned shall be cut as directed by said party of the first part from time to time, and the same to be done in good and workmanlike manner, and approved by said party of the first part.
“And the scaling to be done by a good, competent scaler approved of by both parties and each party to pay one-half of said scale bill.
“In witness whereof the above named parties have hereunto set their names this 20th day of April, 1911.
“Elwin H. Bellows. “O. H. Brooks.
“Witness.”

Plaintiff’s declaration is upon the common counts, with an added count reciting the contract, alleging breach of the same on the part of the defendant in failing to make the payments as specified, and performance on plaintiff’s part to the full extent of his ability, but admitting failure to entirely complete the contract, charging that this was through the fault of defendant as follows:

“That plaintiff has been compelled, in order to continue said job to the time aforesaid, to invest therein of his own personal funds every cent that he had or could get, so that plaintiff is totally without funds, and is unable to finish the few days’ work necessary to complete said contract, all of which will and has caused the plaintiff great damage,” etc.

Plaintiff also filed and served a bill of particulars, setting forth the amount of logs cut and hemlock bark peeled and piled, two small items for extra teaming and board furnished, and crediting payments received by him, showing a balance claimed his due amounting to $1,695.45.

Defendant pleaded the general issue and gave notice of recoupment, alleging that the timber was not cut clean from the land, that it was not properly piled upon skids upon the stream, but rolled over an embankment in a promiscuous manner; that it was not cut seasonably, as required in order that it might have time to dry before being driven, resulting in a quantity of logs sinking when put afloat; that the bark was not properly peeled, and was piled in inaccessible places; that logs were cut and left scattered in the woods, lying upon the ground where cut and difficult of access; and that a large portion of the logs were not put afloat in the river as agreed, by reason of all of which things defendant claimed damages by way of recoupment.

Soon after this contract was entered into, on April 20, 1911, plaintiff entered upon its performance. He commenced building his shanties upon the tract upon the 15th of the next month, and shortly thereafter began with his crew cutting logs and peeling the hemlock bark. He continued operations upon the contract until the 2d day of March, 1912, when he quit and withdrew from his camps. He testified comparatively little remained to be done to complete the contract, but that he was unable to continue longer and finish because his means were exhausted, and money owing him by defendant was not furnished according to agreement, and on the 22d of the same month commenced this action. At that time none of the logs had been put afloat except a part of the hemlock, cut and watered the preceding fall.

Defendant testifies that the logs were not cut and Skidded according to contract, but were thrown over in jam piles near the shore of the river, crossed and tangled, and. left there .for him to put afloat in the spring; that the extra expense of blasting stumps out of the way with dynamite, pulling the logs around with teams and other necessary labor caused by improper piling, made it cost at least a dollar per thousand more than it otherwise would to get the logs into the water. Plaintiff denied this, and testified that the logs were cut and skidded according to contract and as directed from time to time by plaintiff; any variation as to time and method specified in the contract being in compliance with defendant’s instructions.

After this suit was begun plaintiff returned to the banking ground and put afloat a portion of the logs. He testified that it cost about one-third more to put in those piled in roll ways that were “crisscross;” that he put in three rollways, besides some seven or eight skidways along the river. A scaler named Hutton, who was there when the logs were put afloat, testified that plaintiff put in part of the logs the fore part of April, and that the balance, about two-thirds of the hardwood and one-third of the hemlock, were rolled in later and driven for defendant by a man named Osman.

The record presents much conflicting testimony as to plaintiff’s compliance with or violation of the requirements of his contract while the work was in progress. The various questions thus raised relative to amount and method of work, time of performance, supplemental agreements between the parties, and directions given by defendant, varying the terms of the contract, are issues which would ultimately be for the jury, and need not be further considered in detail here.

The case was tried for plaintiff on. the theory and under the claim that defendant retained money due plaintiff necessary to continue the work, and his default in that particular operated to prevent performance ; that plaintiff therefore had the right, upon such breach by defendant, to discontinue further attempt to complete the contract and at once bring an action to recover damages for its breach, the measure of which would be the contract price for work done and loss of prospective profits on work remaining to be done; it being the presumption that he would have continued and completed his contract had defendant not defaulted. Plaintiff sought to prove he had not been fully paid for work performed, and gave some testimony as to what his profits would have been on certain work under the contract not yet done. He recovered a verdict of $1,500.

In charging the jury the court advised them that plaintiff’s claim was both for the contract price of work done under the contract at the time he was compelled to abandon it and for profits that would have accrued to him from completion of work yet to be done, saying:

“If you find that the plaintiff was forced to abandon the contract by reason of the failure of the defendant to perform his part thereof, then in that case the plaintiff would be entitled to damages, and the measure of such damages would be the profit he would have made on the uncompleted portion, and that sum you will determine from the testimony in the case.”

The latter claim should have been excluded. Without considering other objections, we find plaintiff’s bill of particulars is limited to items of work done and meals furnished, with price for same, and absolutely silent as to prospective profits. His range of recovery cannot extend beyond his bill of particulars. 1 Abbott’s Practice and Forms, § 998. The amount of payments made, and the fact that plaintiff abandoned the operation before completing it, being conceded, the paramount propositions upon which his right of recovery depended were the scale of the logs cut and the cause of his quitting before the contract was finished. These center around the two clauses in the contract relative to scaling, payments as the work progressed, and use to which such payments were to be devoted. The scaling was in charge of and mostly done by a scaler named Frost, who had been in-the employ of defendant more or less for some 20 years. Defendant sent him there and paid him for his services. He made scale sheets of the amount cut by plaintiff, and delivered them to him as the work progressed. He testified these represented “correctly the scale of logs put in by Mr. Brooks on this job;” that he made these up from his scale book, which he used while scaling and had with him at all times. He also rendered statements from time to time to defendant, different in form because defendant wanted each kind of logs kept separate. He testified these “embodied a full and complete statement of that cut.” It was shown some of the scaling was done by Brooks’ foreman and another man in his employ, under Frost’s direction and at his request, at times when Frost was away or the conditions were such that he could not do it all himself. They furnished Frost their measurements, and he computed and entered these scales in his book. He said he went over their logs once in a while to test their accuracy and found them all right; that they did it correctly for him, and he paid them for doing it. Whether or not defendant knew of and consented to this scaling by others to help out Frost is a disputed question of fact.

The contract provided that the scaling should be done by a competent scaler approved by both parties. Defendant claims that Frost was agreed upon, approved, and selected by both parties to do the scaling as agent of both under the terms of the contract. •This is denied by plaintiff, who claims that neither would accept the scaler proposed by the other, and they could not agree upon any one; that when defendant finally said he would send down Frost, who was a good scaler in his. employ, plaintiff said he did not know him, “but if you send him down, he can scale as long as his scale is satisfactory;” that Frost then came, sent by defendant, as his agent, and as such scaled the logs, furnishing his scale to plaintiff, which, as it proved satisfactory, he accepted. As proof of the amount cut by him, plaintiff relied upon the scale sheets Frost had furnished him. Their identity was not disputed. They showed 1,507,969 feet of hardwood, 1,237,728 feet of hemlock, 247,858 feet of cedar, and 19,415 feet of pine. Defendant produced equally identified statements furnished him by Frost, 15 in number, showing 1,399,525 feet of hardwood, 1,019,-929 feet of hemlock, 232,924 feet of cedar, and 22,727 feet of pine. The number of cords of hemlock bark peeled was not in dispute, though there was some controversy as to the manner in which the work was done.

Error is assigned on admission in evidence, against objection, of the scale sheets offered by plaintiff, on the ground that the book from which Frost copied them “was the primary evidence, if there was any/’ and was not produced; some of the sheets were shown to have been made up from the book after this suit was begun, and some of the scaling was done by others from whom Frost obtained figures of which he had no personal knowledge. The court admitted all testimony offered as to the scaling done by and for Frost, but sustained objections to testimony offered by defendant as to the scale of the logs at his mill and of the lumber cut from them, and a survey of the land from which the timber was cut. Defendant urged such evidence was admissible because of the discrepancy in Frost’s scale furnished to the respective parties, it being in effect only estimates as to certain portions, manifestly inaccurate and open to impeachment for fraud or mistake under Ortman v. Green, 26 Mich. 209.

The court instructed the jury as to the scale in part as follows:

“Both plaintiff and defendant are bound by the scale of Mr. Frost. * * * It is for you to say from the evidence in the case bearing upon this proposition what the scale was; if you are satisfied by a fair preponderance of the évidence that the scale is as claimed by the plaintiff, then, so far as the logs are concerned, you will use such scale as the basis for your computation. If, on the other hand, you do not 'find that the testimony offered by the plaintiff establishes the true scale, as made by Mr. Frost and others working under him, within the meaning of these instructions, but do find from the evidence in the case some other quantity of timber to be the true scale made by Mr. Frost, then you will use such amount as the basis of your computation upon this branch of the case.”

If, as claimed by defendant, Frost was the agreed, official scaler for both parties, selected as provided for by the contract, and that was a question for the jury, his scale was conclusive, except that fraud or gross mistake could be shown by either party (Peterson v. Reichel, 143 Mich. 212 [106 N. W. 877]), and it would then be competent for defendant, in view of the apparent discrepancy in the statements, to show, if he could, that the scale Frost furnished plaintiff was in fact grossly ihcorrect, and to establish by competent evidence what the true scale was. On the other hand, if, as claimed by plaintiff, they were unable to agree upon a regular scaler to represent both, as contemplated by the contract, and by a different agreement defendant’s own scaler was to act so long as the scale made and furnished by him to plaintiff was satisfactory, which was a question for the jury, defendant could not repudiate the scale so furnished under his instructions by his agent, and accepted as satisfactory by plaintiff, and after the logs were removed and sawed compel plaintiff to accept a different scale. If the scale furnished by defendant’s scaler to plaintiff and accepted by him was the agreed basis between them, it should control.

The contract makes no provision for payment on hemlock, cedar, or pine logs before they were put afloat. Most of these had not been put afloat at the time this suit was begun. Defendant deposited in the bank at Thompsonville $7,800 to apply on the contract. This by the terms of the contract was to be checked out only for labor and supplies in carrying on the logging until the same was completed. Plaintiff’s only reason for abandoning the contract is because defendant did not deposit more money for him to check out. It was incumbent upon him, under his claim of reason, for abandoning the contract, to show this money was paid out for labor and supplies. He was to draw the money by check on the deposit, and presumably could furnish bills or other definite evidence of expenditures for labor and supplies in carrying on the contract. He produced no checks or bills, and no evidence whatever, in detail or in gross, as to the cost of labor or supplies. His only testimony on the subject is:

“He did not pay me any more money; he refused to pay me any more money. As a result of that I worked as long as I could on the job and then quit. I have some money of my own in the job. * * * X did not complete the work because I didn’t have the money to do so; it was impossible for me because Mr. Bellows would not furnish the money. * * * Mr. Bellows refused to send me more money the 14th of February.”

This falls far short of competent proof that the $7,800 deposited by defendant under the contract in the bank at Thompsonville was drawn out “only for labor and supplies, and in no case * * * drawn in excess of the amounts hereinbefore stated.”

For the reasons given the judgment is reversed and a new trial granted.

McAlvay, C. J., and Brooke, Kuhn, Stone, Ostrander, Bird, and Moore, JJ., concurred.