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

text:
    RYAN v. TOWAR.

    1. Invitation or License — Acquiescence in Use of Premises.
    An invitation or a license to cross the premises of another cannot be predicated on the mere fact that no steps have been taken to interfere with such practice.

    2. Same — Infants.
    There is no difference between children and adults as to the circumstances that will warrant the inference of an invitation or a license to enter upon another’s premises.
    3. Negligence — Liability to Trespassers.
    The owner of land is not liable to trespassers thereon for injuries sustained by them not due to his wanton or willful acts.
    4. Same — Infants—Attractive Machinery.
    No exception to this rule exists in favor of children who are injured by dangerous machinery naturally calculated to attract them to the premises. Disapproving the doctrine of the Turntable Cases.

    6. Same — Rescuing Trespasser.
    Nor can an exception be raised in favor of one who enters the premises for the purpose of rescuing a trespasser from danger.

      6. Same.
    Defendant corporation owned an unused pump-house, containing a small overshot water-wheel. Plaintiff, a girl 18 years of age, with other children, was in the habit of crossing the land on which the building was located, without objection on the part of the company, though the premises were inclosed by fences. • A younger sister of plaintiff, while playing on the water-wheel with other children, got caught between the wheel and the wheel-pit, and plaintiff was injured in rescuing her. Held, that the children were trespassers, and that defendant was not liable for the injury.
    Montgomery, C. J., and Moore, J., dissenting.
    Error to Marquette; Stone, J.
    Submitted April 3, 1901.
    Decided October 22, 1901.
    Case by Mary Ryan, by next friend, against Edgar H. Towar, impleaded with the Bice Manufacturing Company and John M. Longyear, for personal injuries. From a judgment for defendant on verdict directed by the court, plaintiff brings error.
    Affirmed.

      T. J. Dundon (E. J. Mapes and J. L. Heffernan, of counsel), for appellant.

      Clark & Pearl, for appellee.

       Rehearing denied October 18. 1902.

       On this point see Formall v. Standard Oil Co., 127 Mich. 496 (86 N. W. 946).

       Several late cases in line with the decision in the case at bar are referred to editorially in 6 Law Notes, p. 13 '.

   Hooker, J.

The Bice Manufacturing Company is an existing corporation, which formerly carried on a manufacturing business at Marquette. Its plant has been shut down for some years. Among other structures, it owned a small pump-house, located upon ground owned by a railroad company, under an arrangement between them. In the house was a small overshot water-wheel. The plaintiff, a girl between 12 and 13 years of age, was in the habit of passing this pump-house on the way to school, with her brothers and sisters; going across lots through the field, because it was nearer. For some time previous to the time of the accident through which plaintiff received her injury, a hole ekisted in the stone wall of the house inclosing the wheel, through which children went to play on the wheel. What evidence there is on the subject justifies the inference that it was made by children, and from time to time enlarged, by tearing out the stone of which the wall was built, for the purpose of entry to the wheel. On the day in question, the brothers of plaintiff, on their way from school, crawled through this hole, and, mounting the wheel, were able by their weight to turn the wheel part way round and back. A younger sister, aged 8 years, got caught between the wheel and the wheel-pit. The plaintiff heard her screams, and went through the hole to her succor, and aided in rescuing her, and was herself injured. Suit was brought against the corporation and two of its directors, and the negligence alleged was in permitting the wheel to remain there, accessible to children. The court directed a verdict in favor of the directors, and allowed the jury to determine the liability of the corporation, against which they rendered a verdict for $5,000. From a judgment in favor of the directors, the plaintiff has appealed. The only error assigned is the direction to return a verdict in favor of the -directors.

The testimony shows that the buildings of the Bice Manufacturing Company were upon land owned by the railroad company, and that such land, together with the railroad, consisting of several tracks, was fenced. The plaintiff was not shown to have been invited upon the premises, but there is testimony from which the jury might reasonably conclude that children were in the habit of crossing the land of the defendant company and the" railroad, and that neither company took steps to prevent it, further than to keep up the fences. It is contended that this amounted to an invitation or license, but we think not. Mere toleration of a trespass does not alone constitute a license even, certainly not an invitation. 1 Thomp. Neg. (2d Ed.) § 1050, and note. The pedestrians who insist upon risking their lives by making a footpath of a railroad track, and others who habitually shorten distances by making footpaths across the corners of village lots, are none the less trespassers because the owners do not choose to resent such intrusion, and be to the expense and trouble of taking effective measures to prevent it. /There is no more lawless class than children, and none more annoyingly resent an attempt to prevent their trespasses. The average citizen has learned that the surest way to be overrun by children is to give them to understand that their presence is distasteful. The consequence is that they roam at will over private premises, and,, as a rule, this is tolerated so long as no damage is done. The remedy which the law affords for the trifling trespasses of children is inadequate. No one ever thinks of suing them, and to attempt to remove a crowd of boys from private premises by gently laying on of hands, and using no more force than necessary to put them off, would be a roaring farce, with all honors to the juveniles. For a corporation with an empty treasury, and overwhelmed with debt,, to be required to be to the expense of preventing children from- going across its lots to school, lest it be said that it invited and licensed them to do so, is to our minds an unreasonable proposition. . As to this question of license or invitation, there is no difference between children and adults.

In the case of Sturgis v. Railway Co., 72 Mich. 619 (40 N. W. 914), Mr. Justice Campbell said:

“It is impracticable to keep off trespassers from an open track, and all who go upon it do so on their own risk of such dangers as are incident directly to such use.”

See, also, O’Neil v. Railway Co., 101 Mich. 437 (59 N. W. 836).

In Clark v. Railroad Co., 113 Mich. 24 (71 N. W. 327, 67 Am. St. Rep. 442), it was contended that a common practice of crossing a railway, of 20 years’ duration, established an easement or a license or invitation, which made it incumbent upon the company to keep the premises free from obstructions, such as a semaphore wire along and a few inches above the surface of the ground. It was held that it proved neither, and that those who crossed were technical trespassers. Numerous authorities were cited, and the question cannot be considered an open one in this State.

It is a general and nearly uniform rule that there¡ is no duty imposed upon the owner of premises to keep them in a suitable condition for those who come there for their own convenience merely, without the invitation of the owner. The origin of the alleged modern doctrine may be said to practically rest upon what are called the “ Turntable Cases,” the first of which was the case of Railroad Co. v. Stout, 17 Wall. 657. The opinion was written by Mr. Justice Hunt in the year 1873. A child of 6 years of age was hurt while playing with others upon a turntable, by getting its foot caught between the ends of the rails. The turntable was in a remote place, not far from a public highway, on ground belonging to the company. The trial court charged the jury—

“ That, to maintain the action, it must appear * * * that it was a dangerous machine, — one which, if unguarded or unlocked, would be likely to cause injury to children; * * * that the jury were to consider whether, ■situated as it was, as the defendant’s property, in a small town, somewhat remote from habitations, there was negligence in not anticipating that injury might occur if it was left unlocked or unguarded; that if they did not have reason to anticipate that children would be likely to resort to it, or that they would be likely to be injured if they did resort to it, then there was no negligence.”

The only question in the case was whether the child was a trespasser, and for that reason could not recover. This case practically laid down the rule “ that a railroad ■company might be liable to trespassers for injuries resulting from its failure to construct, locate, manage, and maintain its turntable with that care and attention to prevent accidents which prudent and careful men ordinarily bestow;” and it held that while “the evidence was not strong, and the negligence was slight,” the court was “not able to say that there was not evidence sufficient to justify the verdict,” and that the charge was sound.

Four cases are cited as precedents for the proposition that a trespasser is entitled to demand from a landowner ordinary care in the use, condition, and maintenance of structures upon his premises. The first was Lynch v. Nurdin, 1 Adol. & E. (N. S.) 29. In that case it was held that a child who, seeing a horse and cart unfastened in the street, got into the cart and was injured, could maintain an action against the owner. The case seems to have-gone off upon the questions of negligence and contributory negligence, and, no question of trespass being discussed, the inference is perhaps a proper one that it was found by the jury that the owner was negligent in leaving his horse loose in the public street, and that the child had shown as much prudence as could be expected of him. Not only was there apparently no consideration of this question, but-later English cases are in conflict with that case, if it necessarily involved it. In Mangan v. Atterton, L. R. 1 Exch. 239, the defendant exposed for sale a machine in a public place, which might be set in motion by a passerby. A boy 4 years old, by direction of his brother, 7 years old, placed his fingers in the machine while another boy was turning the handle which moved it, and his fingers were crushed. Bramwell, J., said the action could not be maintained, and added: ‘ ‘ Suppose the machine was. of delicate construction, and was injured by the boy; would' he not be a trespasser ? If so, it is impossible to hold the-defendant.” In Hughes v. Macfie, 2 Hurl. & C. 744, a cellar grating was left standing against a wall in a street. A child playing with it was injured by its falling upon him. The court said that he could not recover, “because he was voluntarily meddling, for no lawful purpose, with that which, if left alone, would not have hurt him. His being of tender years makes no difference.” It is noticeable that even the Lynch Case did not involve a trespass upon defendant’s close, though it did perhaps involve a trespass to personal property.

The next case cited as authority in Railroad Co. v. Stout is Birge v. Gardiner, 19 Conn. 507 (50 Am. Dec. 261). There a child was injured by the fall of a gate on the land of the defendant on or near the'line of a private alley leading 'from a public highway back to several ■dwellings, in one of which the plaintiff lived, and in which alley it had a right to be. The court refused to •consider the question, and intimated that it made no difference because the plaintiff was not faultless; citing Lynch v. Nurdin. In Daley v. Railroad Co., 26 Conn. 591 (68 Am. Dec. 413), a heavy train of cars coming around a ■curve killed a child less than 3 years old, playing on the track. The court followed the case of Birge v. Car diner. The last case cited was Bird v. Holbrook, 4 Bing. 628. This was an action brought by a trespasser who was shot by a spring gun set for the purpose, and is clearly not in point. There was a wanton, intentional act, intended to punish trespassing with death, meriting punishment as an .attempt at homicide. It is chiefly valuable in this connection as showing the difficulty found in the attempt to •support Railroad Co. v. Stout by precedents.

The enunciation by the highest tribunal in the country •of the rule that a landowner owes a duty of care towards .a trespasser was sure to be followed by other courts. Among the earliest of these is Keffe v. Railway Co., 21 Minn. 207 (18 Am. Rep. 393). This was a turntable case, ■and the trespassing child 7 years of age. The court there discovers a distinction between a voluntary trespass and one by a person without judgment, who is allured upon premises by his natural inclination, and meddles with things whose uses and dangers he is unable to comprehend. It says, “What an express invitation would be to an adult, the temptation of an attractive plaything is to a child of tender years.” Therefore this was an invitation, and the child licensed. Having by this reasoning found the child lawfully on the premises, it proceeds to treat the turntable as a trap, and compares it with a case when one sets traps baited with tainted meat, to allure his neighbors’ dogs, which he intends to catch, or sets a spring .gun, with the formed design of taking a trespasser’s life. This case was followed by another case in the same court. O'Malley v. Railway Co., 43 Minn. 289 (45 N. W. 440). This was also a turntable case, and the child 6 years of age.

In 1881 the supreme court of Nebraska approved the case of Railroad Co. v. Stout, although it reversed the-case before it, and, as was done in the Stout Case, recognized the fact that the cases were not harmonious. Atchison, etc., R. Co. v. Bailey, 11 Neb. 332 (9 N. W. 50).

In Kansas the doctrine was applied in a case of a turntable located in the midst of an open prairie, and a boy 12 years of age. In discussing the tendencies of boys* the court said:

“Everybody knows that, by nature and by instinct,, boys love to ride, and love to move by other means than their own locomotion. They will cling to the hind ends of moving wagons, ride upon swings and swinging gates, slide upon cellar doors and the rails of staircases, pull sleds up hill in order to ride down, etc. * * * Now, everybody, knowing the nature and the instincts common to all boys, must act accordingly. No person has a right to leave, even on his own land, dangerous machinery, calculated to attract and entice boys to it, there to be injured, unless he first take proper steps to guard against all danger■; and any person who thus does leave dangerous machinery exposed, without first providing against all danger, is guilty of negligence. * * * It is true that the boys-in such cases are technically trespassers. But even trespassers have rights which cannot be ignored, as numerous-cases which we might cite would show. But see, particularly-, the cases of Railroad Co. v. Stout, 17 Wall. 657; Keffe v. Railway Co., 21 Minn. 207 (18 Am. Rep. 393).” Kansas Central R. Co. v. Fitzsimmons, 22 Kan. 686 (31 Am. Rep. 203).

Here we have the doctrine of the Turntable Cases carried to its natural and logical result. We have only to add that every man who leaves a wheelbarrow, or a lawnmower, or a spade upon his lawn; a rake, with its sharp teeth pointing upward, upon the ground or leaning against a fence; a bed of mortar prepared, for use in his new house; a wagon in his barn-yard, upon which children may climb, and from which they may fall; or who turns in his lot a kicking horse or a cow with calf, — does so at the risk of having the question of his negligence left to a sympathetic jury. How. far does the rule go ? Must his barn door, and the usual apertures through which the accumulations of the stable are thrown, be kept locked and fastened, lest 12-year-old boys get in and be hurt by the animals, or by climbing into the haymow and falling from beams ? May a man keep a ladder, or a grindstone, or a scythe, or a plow, or a reaper, without danger of being called upon to reward trespassing children, whose parents owe and- may be presumed to perform the duty of restraint ? Does the new rule go still further, and make it necessary for a man to fence his gravel-pit or quarry ? And, if so, will an ordinary fence do, in view of the known propensity and ability of boys to climb fences? Can a man nowadays safely own a small lake or fish-pond ? and must he guard ravines and precipices upon his land? Such is the evolution of the law, less than 30 years after the decision of Railroad Co. v. Stout, when, with due deference, we think some of the courts left the solid ground of the rule that trespassers cannot recover for injuries received, and due merely to negligence of the persons trespassed upon. Well might the court of appeals of New York say in McAlpin v. Powell, 70 N. Y. 126 (26 Am. Rep. 555):

“We are not now called upon to express an opinion as to the soundness of these decisions in such a case, and, while we are not prepared to uphold them, it is enough to say that the facts are by no means analogous.”

In addition to the cases discussed, the following recognize the rule laid down in Railroad Co. v. Stout, attempting to justify their adherence to it in the particular cases by one or another reason, which we think it unnecessary to further allude to: Nagel v. Railway Co., (1882) 75 Mo. 653 (42 Am. Rep. 418); Barrett v. Southern Pac. Co., 91 Cal. 296 (27 Pac. 666, 25 Am. St. Rep. 186) [this case cites Powers v. Harlow, 53 Mich. 507 (19 N. W. 257, 51 Am. Rep. 154), as supporting its doctrine; but in that case the child was not a trespasser on the land, whatever may be said of his meddling with the explosives; of this we will have more to say]; Harriman v. Railway Co., 45 Ohio St. 11 (12 N. E. 451, 4 Am. St. Rep. 507); Westerfield v. Levis, 43 La. Ann. 63 (9 South. 52); Fort Worth, etc., R. Co. v. Robertson, (Tex. Sup.) 16 S. W. 1093, 14 L. R. A. 781; Ilwaco R. Co. v. Hedrick, 1 Wash. 446 (25 Pac. 335, 22 Am. St. Rep. 169). It is a significant fact that these are all, -with possibly one or two exceptions, railway cases; and it has been suggested by a text writer (2 Wood, Ry. Law, p. 1292), as a reason why railway companies should be held liable in these cases, that they do not hold their property by precisely the same tenure as an individual does, that they are quasi public corporations, and that such trespasses are common and frequent upon railroads. But this is a suggestion rather than an authority, and does not purport to be more. Certainly the cases of Railroad Co. v. Stout and Birge v. Gardiner, which are the leading cases, do not rest upon or recognize any such distinction Or reason.

These two cases, to which can be traced the origin of this doctrine, have not gone unchallenged. In Kansas it was held that the attempt to give a trespasser such a right upon the land of another which could affect the lattei in the management of his property would be unconstitutional, as tending to disturb vested rights. Caulkins v. Mathews, 5 Kan. 191. In Deane v. Clayton, 7 Taunt. 529, Gibbs, C. J., said:

I know it is a rule of law that I must occupy my own so as to do no harm to others; but it is their legal rights only that I am bound not to disturb. Subject to this qualification, I may occupy or use my own as I please. It is the rights of others, and not their security against the consequences of [their] wrongs, that I am bound to regard.”

A fine discussion of this subject will be found in the opinion of Hall, J., in the case of Keffe v. Railway Co., 2 Cent. Law J. 172, where numerous authorities are cited.

The doctrine of the cases under discussion was denied in a terse opinion in the case of Lake Shore, etc., R. Co. v. Clark, 41 Ill. App. 343. It was said:

“The youth of the deceased might be a matter for consideration upon the question of whether he was negligent, but it adds nothing to the duty of the appellant. It is not under greater obligation to anticipate the presence of children upon its tracks than of adults;” citing Chicago, etc., R. Co. v. Roath, 35 Ill. App. 349.

The case of Frost v. Eastern Railroad, 64 N. H. 220 (9 Atl. 790, 10 Am. St. Rep. 396), lays down the general rule thus: (37 Am. Rep. 99); Wood v. School District, 44 Iowa, 27; Gramlich v. Wurst, 86 Pa. St. 74 (27 Am. Rep. 684); Cauley v. Railway Co., 95 Pa. St. 398 (40 Am. Rep. 664); Gillespie v. McGowan, 100 Pa. St. 144 (45 Am. Rep. 365); Mangan v. Atterton, L. R. 1 Exch. 239. The maxim that a man must use his property so as not to incommode his neighbor only applies to neighbors who do not interfere with it or enter upon it. Knight v. Abert, 6 Pa. St. 472 (47 Am. Dec. 478). To hold the owner liable for consequential damages happening to trespassers from the lawful and beneficial use of his own land would be an unreasonable restriction of his enjoyment of it.”

“At the time of his injury, the plaintiff was using the defendant’s premises as a play-ground, without right. The turntable was required in operating the defendant’s railroad. ' It was located on its own land, so far removed from the highway as not to interfere with the convenience and safety of the public travel, and it was not a trap set for the purpose of injuring trespassers. Aldrich v. Wright, 53 N. H. 404 (16 Am. Rep. 339). Under these circumstances, the defendant owed no duty to the plaintiff, and there can be no negligence or breach of duty where there is no act or service which the party is bound to perform or fulfill. A landowner is not required to take active measures to insure the safety of intruders, nor is he liable for an injury resulting from the lawful use of his premises to one entering upon them without right. A trespasser ordinarily assumes all risk of danger from the condition of the premises, and, to recover for an injury happening to him, he must show that it was wantonly inflicted, or that the owner or occupant, being present and acting, might have prevented the injury by the exercise of reasonable care after discovering the danger. Clark v. City of Manchester, 62 N. H. 577; State v. Railroad, 52 N. H. 528; Sweeny v. Railroad Co., 10 Allen, 368 (87 Am. Dec. 644); Morrissey v. Railroad Co., 126 Mass. 377 (30 Am. Rep. 686); Severy v. Nickerson, 120 Mass. 306 (21 Am. Rep. 514); Morgan v. City of Hallowell, 57 Me. 375; Pierce v. Whitcomb, 48 Vt. 127 (21 Am. Rep. 120); McAlpin v. Powell, 70 N. Y. 126 (26 Am. Rep. 555); St. Louis, etc., R. Co. v. Bell, 81 Ill. 76 (25 Am. Rep. 269); Gavin v. City of Chicago, 97 Ill. 66

The following is the criticism indulged in of the case of Railroad Co. v. Stout:

“We are not prepared to adopt the doctrine of Railroad Co. v. Stout, 17 Wall. 657, and cases following it, —that the owner of machinery or other property attractive to children is liable for injuries happening to children wrongfully interfering with it on his own premises. The owner is not an insurer of the safety of infant trespassers. One having in his possession agricultural or mechanical tools is not responsible for injuries caused to trespassers by careless handling; nor is the owner of a fruit tree bound to cut it down or inclose it, or to exercise care in securing the staple and lock with which his ladder is fastened, for the protection of trespassing boys who may be attracted by the fruit. Neither is the owner or occupant of premises upon which there is a natural or artificial pond, or a blueberry pasture, legally required to exercise care in securing his gates and bars to guard against accidents to straying and trespassing children. The owner is under no duty to a mere trespasser to keep his premises 'safe; and the fact that the trespasser is an infant cannot have the effect to raise a duty where none otherwise exists. ‘The supposed duty has regard to the public at large, and cannot well exist as to one portion of the public, and not to another, under the same circumstances. In this respect children, women, and men are upon the same footing. •In cases where certain duties exist, infants may require greater care than adults, or a different kind of care; but precautionary measures having for their object the protection of the public must, as a rule, have reference to all classes alike.’ Nolan v. Railroad Co., 53 Conn. 461 (4 Atl. 106).”

The Massachusetts court has been no less emphatic in its condemnation of the case of Railroad Co. v. Stout. In Daniels v. Railroad Co., 154 Mass. 349 (28 N. E. 283, 13 L. R. A. 248, 26 Am. St. Rep. 253), a turntable accident was involved; also a child of 10 years. The roadbed was a common thoroughfare. The court discusses all the early cases favorable to plaintiff’s contention, and says that, with the one exception of Daley v. Railroad Co., 26 Conn. 591 (68 Am. Dec. 413), “all come within other rules, or within well-defined exceptions to the general rule that a landowner owes no duty to a trespasser, except that he must not toantonly or intentionally injure him or expose him to injury.” It cites with approval McAlpin v. Powell, supra, and the New Hampshire case of Frost v. Eastern Railroad and to the general proposition which it asserts, viz., that, subject to some exceptions, an owner of land may use it as he sees fit, and, if a trespasser or mere licensee is injured, he cannot complain that, if the owner had used it in a more careful manner, no injury,would have resulted, it calls attention to the following cases: Hounsell v. Smyth, 7 C. B. (N. S.) 731, and cases cited; Clark v. City of Manchester, 62 N. H. 577; Klix v. Nieman, 68 Wis. 271 (32 N. W. 223, 60 Am. Rep. 854); Gramlich v. Wurst, 86 Pa. St. 74 (27 Am. Rep. 684); Cauley v. Railway Co., 95 Pa. St. 398 (40 Am. Rep. 664); Gillespie v. McGowan, 100 Pa. St. 144 (45 Am. Rep. 365); Hargreaves v. Deacon, 25 Mich. 1. Also Sweeny v. Railroad Co., 10 Allen, 368 (87 Am. Dec. 644); Metcalfe v. Steamship Co., 147 Mass. 66 (16 N. E. 701), and cases cited; Barstow v. Railroad Co., 143 Mass. 535 (10 N. E. 255); Johnson v. Railroad, 125 Mass. 75; Wright v. Railroad, 129 Mass. 440; Morrissey v. Railroad Co., 126 Mass. 377 (30 Am. Rep. 686); Wright v. Railroad Co., 142 Mass. 296 (7 N. E. 866); McEachern v. Railroad Co., 150 Mass. 515 (23 N. E. 231); McCarty v. Railroad Co., 154 Mass. 17 (27 N. E. 773). Most of the cases last cited involved injuries to young children.

The case of Walsh v. Railroad Co., 145 N. Y. 301 (39 N. E. 1068, 27 L. R. A. 724, 45 Am. St. Rep. 615), in an opinion by Peckham, J., unqualifiedly condemns the rule of Railroad Co. v. Stout. This also was a turntable case, and the child was 5 years old. It not only shows the inaccuracy of the rule there asserted, but'questions some of the reasons set up by the various courts for following Railroad Co. v. Stout, and shows the misapplication of authorities relied upon to support the doctrine that landowners must guard trespassers with reasonable care and diligence. It is unnecessary to quote from it, for it can as well be read. See, also, Charlebois v. Railroad Co., 91 Mich. 59 (51 N. W. 812); Hargreaves v. Deacon, 25 Mich. 1; Moran v. Car Co., 134 Mo. 641 (36 S. W. 659, 33 L. R. A. 755); s. c. 56 Am. St. Rep. 543, and note; Dobbins v. Railway Co., 91 Tex. 60 (41 S. W. 62, 38 L. R. A. 573, 66 Am. St. Rep. 856).

In addition, there are many cases that disregard the rule. Thus it has been held that cars are not dangerous machines, attractive to children, within the rule of the Turntable Cases, and that a railroad company owes no duty to a child trespassing in its yard, to see that he does not jump on its cars, or to fence its yard (Barney v. Railroad Co., 126 Mo. 372 [28 S. W. 1069, 26 L. R. A. 847]; Rushenberg v. Railway Co., 109 Mo. 112 [19 S. W. 216]; Catlett v. Railway Co., 57 Ark. 461 [21 S. W. 1062, 38 Am. St. Rep. 254]; Louisville, etc., R. Co. v. Hurt, [Ky.] 13 S. W. 275; Chicago, etc., R. Co. v. Stumps, 69 Ill. 409); nor to keep its cars in good repair, or the doors shut (McEachern v. Railroad Co., 150 Mass. 515 [23 N. E. 231]; Curley v. Railway Co., 98 Mo. 13 [10 S. W. 593]); nor to guard them so that such a child cannot be injured by loosening the brakes (Central Branch, etc., R. Co. v. Henigh, 23 Kan. 347 [33 Am. Rep. 167]; Haesley v. Railroad Co., 46 Minn. 233 [48 N. W. 1023, 24 Am. St. Rep. 220]; Gay v. Railway Co., 159 Mass. 238 [34 N. E. 186, 21 L. R. A. 448, 38 Am. St. Rep. 415]; Jakoboski v. Railroad Co., 106 Mich. 440 [64 N. W. 461]; O'Connor v. Railroad Co., 44 La. Ann. 339 [10 South. 678]); nor in leaving a hand car near the track (Robinson v. Railway Co., 7 Utah, 493 [27 Pac. 689, 13 L. R. A. 765]); nor to keep a lookout for trespassing children (Morrissey v. Railroad Co., 126 Mass. 377 [30 Am. Rep. 686]; Wright v. Railroad Co., 142 Mass. 296 [7 N. E. 866]; Cleveland, etc., R. Co. v. Adair, 12 Ind. App. 569 [39 N. E. 672, 40 N. E. 822]; Woodruff v. Railroad Co., 47 Fed. 689; Chrystal v. Railroad Co., 105 N. Y. 164 [11 N. E. 380]; Masser v. Railway Co., 68 Iowa, 602 [27 N. W. 776]; Central R. Co. y. Rylee, 87 Ga. 491 [13 S. E. 584, 13 L. R. A. 634]; Mitchell v. Railroad Co., 132 Pa. St. 226 [19 Atl. 28]; McMullen v. Railroad Co., 132 Pa. St. 107 [19 Atl. 27, 19 Am. St. Rep. 591]; McDermott v. Railroad Co., 93 Ky. 408 [20 S. W. 380]; Louisville, etc., R. Co. v. Williams, 69 Miss. 631 [12 South. 957]; Williams v. Railroad Co., 96 Mo. 275 [9 S. W. 573]).

It remains to discuss our own cases cited in support of plaintiff’s contention. The case of Powers v. Harlow, 53 Mich. 507 (19 N. W. 257, 51 Am. Rep. 154), was a case where a young person exploded a dynamite cap which he found on defendant’s premises, under a shed. In discussing the case the court alluded to Hargreaves v. Deacon, 25 Mich. 1, where it was unqualifiedly held that “owners of private property are not responsible for injuries caused by leaving a dangerous place thereon, but not immediately adjoining the highway, unguarded, where the person injured was not on the premises by permission, or on business dr other lawful occasion, and had no right to be there,” and said: “The children, it is said, were tres-

passers ; and, even if it can be said that they were licensed to go where they did, the result must be the same,” etc. “This is the point on which the case must turn.” The court then proceeded to show that the children were rightfully there by invitation, and that some caution was required in such a case. Clearly, this does not adopt the rule of Railroad Co. v. Stout. In the case of Baker v. Railroad Co., 68 Mich. 90 (35 N. W. 836), the boy was hurt on a public highway crossing by a train. There was no claim that he was a trespasser, or that he was not rightfully there. McCahill v. Railway Co., 96 Mich. 156 (55 N. W. 668), was a street7car case, where a trespassing boy was driven from a car in motion, and it was clearly a wanton act.

That a landowner is under no obligation to use care to protect a trespasser is a broad, and, until recently, undisputed, rule, without exception; liability for injuries sustained by such being limited to cases of intentional or wanton injuries. The rule, with this limitation, is sustained today by the great weight of authority. It is'contended by some law writers, and has been held in some cases, that an exception exists in favor of children of tender years. The varying reasons given should lead us do doubt the solidity of the foundations upon which these cases rest, especially when none of the reasons are of recognized authority. The law has never before denied the liability of children for trespass because of tender years. On the contrary, it was intimated in Mangan v. Atterton, L. R. 1 Exch. 239, that a 4-year-old boy was a trespasser, under the circumstances of that case; and there are numerous cases cited in this opinion where liability is denied upon that, and no other, ground. The assertion that the weight of authority supports the plaintiff’s contention in this case seems to us incorrect. It may be true that, in cases involving turntables, a majority of 'the cases, which are necessarily few, have followed the case of Railroad Co. v. Stout, supraj but there should be a legal principle underlying the rule laid down in that case, and that principle has been - assiduously sought for by some of the courts, without success, as we have seen. Others have asserted different reasons for following it. One gives us to understand that a child is licensed to go wherever he can find that which attracts him; a Texas court has held that children of tender years cannot be trespassers; while other authorities are content to rest their approbation of and adherence to the alleged rule upon the inhumanity of the doctrine that a landowner must not be held responsible for injuries suffered by trespassing children, when by ordinary thoughtfulness and care he could have anticipated and prevented it, and the generic term “attractive nuisances ” is applied to the great variety of things which may naturally be expected to allure young children upon private premises. The term “attractive nuisance,” as applied, is a new one in the books, and the plausible application of the well-known principle that one must so occupy his own as not to do harm to the rights of others should not be construed to so restrict the use of private lands as to make it necessary to guard and protect trespassers. A man’s home has always been considered his 'castle, — a domain where, secure from intrusion, he might lawfully do as he would, so long as he did not interfere with the legal rights of others. It has been his duty to guard those licensed to enter, but beyond that he has not been required to go. In our anxiety to prevent personal injuries, we should not go so far as to overturn private rights.

Admittedly, the duty of incessant watchfulness and care of one’s own premises is limited to young children. It dc/es not extend to an adult. Why should it extend to children, upon whose parents both nature and ti^e law impose the duty of care and watchfulness ? When, by reason of aj. parental neglect of duty, a trespassing child is injured, it might be treated as a casualty, or the neglectful guardjarl might be liable; but there is much reason, if not wisdom, in the common-law rule that the person trespassed upon should not be liable to respond in damages, instead o:¡:, as in other cases, having a right of action against the tr espasser. But, however Draconic the common-law rule maybe considered, it is the province of the courts to enforce it until changed by the legislature. No one questions the power or the propriety of the regulation of the u,‘se of railway turntables and other appliances of a dang erous nature. The legislature can do this, and leave untouched the common rights of the ordinary landed proprietor. The courts cannot. The rule laid down in Railroad Co. v. Stout must be a general one, applicable to every one; and, aside from the impropriety of judicial legislation, a wise public policy should forbid such a sweeping innovation by judicial main strength.

In innumerable cases the courts have applied and continue to apply the general rule that a landowner need not protect a trespasser, every case being an assertion of the principle which is disregarded in the cases relied upon by ■the plaintiff. We have cited a few of them, — enough, we think, to show that the great weight of authority does not sustain the principle of the Turntable Cases. While some of the courts have followed the rule of Railroad Co. v. Stout, both the courts and profession have evinced a tendency to allow this innovation to go no further, and refuse to consider it applicable to other cases every way analogous. They speak of the cases generically, as the “ Turntable Cases” and treat such cases as exceptional. We are of the opinion that they are exceptional, and that they are not based upon principle, but contravene one of the old and well-established rules of the law; and we-therefore decline to recognize them as authority, preferring to adhere to the better doctrine of the other teases cited. The defendant owed no duty to these children, who were trespassers.

Counsel invoke a further rule, or alleged rule, viz., that the plaintiff went into a place of danger lawfully to rescue her sister, and therefore was rightfully there and entitled to protection. The defendant had a right to rely upon his right to privacy, and to believe that his premises would only be invaded by those whom he should choose to invite and warn against the dangers of the place. Was he, then, bound to suppose that somebody might trespass, and to have some one on hand to wai’n and protect somj.e possible rescuer of an imaginary trespasser? not. We think

The question discussed disposes of the case, and other points need not be alluded to.

The judgment is affirmed.

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

Montgomery, C. J.

(dissenting). There is a limitation upon the right which a man has to do what he will with his own. I think a very proper statement of that limitation is that he shall not so use his own property as to be likely to work injury to another. My Brother Hooker seems to be of the opinion that, even though the use made of property by its owner is likely to result in injury to young children, by attracting them to a dangerous use of the property, yet, if the property be located wholly upon one’s own land, so that the child must become a trespasser, in the technical sense, before he can receive injury from the property, the owner may leave it exposed, and will not be liable.

In Powers v. Harlow, 53 Mich. 507 (19 N. W. 257, 51 Am. Rep. 154), it was said by Mr. Justice Cooley that:

“Children, wherever they go, must be expected to act upon childish instincts and impulses; and others who are chargeable with a duty of care and caution towards them must calculate upon this, and take precautions accordingly. If they leave exposed to the observation of children anything which would be tempting to them, and which they, in their immature judgment, might naturally suppose they were at liberty to handle or play with, they should expect that liberty to be takenciting Railroad Co. v. Stout, 17 Wall. 657, and other cases.

This case has been since cited by this court as an authority that where injury results from leaving a dangerous substance exposed, or leaving a pitfall for others, or leaving dangerous machinery in a position where children, acting upon childish instincts, have attempted its use to their injury, the owner is liable. See Keating v. Railroad Co., 97 Mich. 154 (56 N. W. 346, 37 Am. St. Rep. 328).

It is true that neither in Powers v. Harlow nor Keating v. Railrodd Co. were the facts analogous to those in the present case, and for this reason the cases may be distinguished. I refer to them as showing the expressions of the court upon this subject. Indeed, we are not left in doubt as to what was intended by the opinion in Powers v. Harlow. Judge Cooley, in his work on Torts (2d Ed., p. 356, *303), under the head of “Implied Licenses,” says:

“In the case of young children and other persons not fully sui juris, an implied license might sometimes arise when it would not in behalf of others. Thus, leaving a tempting thing for children to play with exposed, where they would be likely to gather for that purpose, may be equivalent to an invitation to them to make use of it; and perhaps if one were to throw away upon his premises, near' the common way, things tempting to children, the same^ implication should arise.”

Similar expressions have been indulged in by other eminent writers. In Bish. Noncont. Law, § 854, stated:

“A child too young to be controlled by reason, therefore not improperly led by its instincts, receives from the law the protection which its special nature requires. Eor example, a man who leaves on his own ground, open to the highway, or upon or beside any public place, a dangerous machine, likely to attract children, will be liable to one injured by playing with it, if he-neglected precautions against such an accident. On this principle, railroads are held responsible, under proper circumstances, for injuries to young children playing with their turntables.”

In 1 Thomp. Neg. (1st Ed.) p. 305, it is said:

“It would be a barbarous rule of law that would make the owner of land liable for setting a trap thereon, baited with stinking meat, so that his neighbor’s dog, attracted by his natural instincts, might run into it and be killed, and which would exempt him from liability for the consequences of leaving exposed and unguarded on his land a dangerous machine, so that his neighbor’s child, attracted to it and tempted to intermeddle with it by instincts equally strong, might thereby be killed or maimed for liEe. Such is not the law.”

See, also, Whart. Neg. § 860.

It becomes of some interest to inquire to what extent this doctrine has been adopted by the courts. The case of Railroad Co. v. Stout, 17 Wall. 657, appears to be a well-considered case; and it was held that where a railroad company left-a turntable exposed and unlocked, even some distance from inhabited dwellings, if the turntable was found to be a dangerous machine, and the employés of defendant had reason to believe that children would probably resort to it, an injured child might recover for injuries received in an attempt to use such turntable. The court cite the case of Lynch v. Nurdin, 1 Adol. & E. (N. S.) 29; Mr. Justice Hunt stating that in the latter case the child was clearly a trespasser in climbing upon the cart. The court also- cite Birge v. Gardiner, 19 Conn. 507 (50 Am. Dec. 261), and Daley v. Railroad Co., 26 Conn. 591 (68 Am. Dec. 413). This case was followed by the supreme court of Minnesota in Keffe v. Railway Co., 21 Minn. 207 (18 Am. Rep. 393), and also in’ O'Malley v. Railway Co., 43 Minn. 289 (45 N. W. 440). It was cited and approved by the supreme court of Ohio in Harriman v. Railway Co., 45 Ohio St. 11 (12 N. E. 451, 4 Am. St. Rep. 507). It was cited and followed by the supreme court of California in Barrett v. Southern Pac. Co., 91 Cal. 296 (27 Pac. 666, 25 Am. St. Rep. 186). It was followed by the supreme court of Missouri in Nagel v. Railway Co., 75 Mo. 653 (42 Am. Rep. 418). See, also, Schmidt v. Distilling Co., 90 Mo. 293 (1 S. W. 865, 2 S. W. 417, 59 Am. Rep. 16). Its authority was recognized by the supreme court of Kansas in City of Osage City v. Larkin, 40 Kan. 206 (19 Pac. 658, 2 L. R. A. 56, 10 Am. St. Rep. 186), and it. was followed in Kansas Central R. Co. v. Fitzsimmons, 22 Kan. 686 (31 Am. Rep. 203). The doctrine was approved by the supreme court of Nebraska in Atchison, etc., R. Co. v. Bailey, 11 Neb. 332 (9 N. W. 50); by the supreme court of Texas in Evansich v. Railway Co., 57 Tex. 123 (44 Am. Rep. 586). The doctrine was applied in Whirley v. Whiteman, 1 Head, 610; Ilwaco R. Co. v. Hedrick, 1 Wash. 446 (25 Pac. 335, 22 Am. St. Rep. 169); Ferguson v. Railway, 77 Ga. 102; Bridger v. Railroad Co., 25 S. C. 24; City of Pekin v. McMahon, 154 Ill. 141 (39 N. E. 484, 27 L. R. A. 206, 45 Am. St. Rep. 114). See, also,, Indianapolis, etc., R. Co. v. Pitzer, 109 Ind. 179 (6 N. E. 310, 10 N. E. 70, 58 Am. Rep. 387). Nor is it only in cases of turntables that this principle is applied. The case of Hydraulic Works Co. v. Orr, 83 Pa. St. 332, is an instructive case. See, also, Gramlich v. Wurst, 86 Pa. St. 79 (27 Am. Rep. 684). This subject was again reviewed by the Supreme Court of the United States in Union Pac. R. Co. v. McDonald, 152 U. S. 262 (14 Sup. Ct. 619); and in an elaborate opinion by Mr. Justice Harlan, concurred in by the entire bench, after a full review of the English and American authorities, the-doctrine of Railroad Co. v. Stout was reaffirmed. On the other hand, the courts of Massachusetts, New Hampshire, New Jersey, and New York have refused to follow the case of Railroad Co. v. Stout and the current of' authority.

It is said that Lynch v. Nurdin, 1 Adol. & E. (N. S.) 29, has been disapproved by later English cases, and the case of Mangan v. Atterton, L. R. 1 Exch. 239, is cited. But the latter case has itself been disapproved by Chief Justice Cockburn in Clark v. Chambers, 3 Q. B. Div. 327, in which case it was said:

“It appears to us that a man who leaves in a public-place, along which persons, and, amongst them, children, have to pass, a dangerous machine, which may be fatal to-•any one who touches it, without any precaution against mischief, is not only guilty of negligence, but of negligence of a very reprehensible character; and not the less so because the imprudent and unauthorized act of another may be necessary to realize the mischief to which the un-’ lawful act or negligence of the defendant has given occasion.”

The case cited from 5 Kan. 191 [Caulkins v. Mathews], as sustaining the view that a trespasser can under no circumstances have a right of action, is certainly overruled by the later Kansas cases cited above, to the extent, at least, that the latter cases hold that where there is the element of enticement of young children, who act upon childish instincts, a recovery may be had by a trespasser.

Reference is had to a discussion of this subject in the •opinion of Hall, J., in Keffe v. Railway Co., 2 Cent. Law J. 172. It should be stated that this was a discussion in an opinion by the circuit judge, which was not followed by the supreme court of Minnesota, but, on the •other hand, the entire bench concurred in the rule laid down ixi Railroad Co. v. Stout.

It will be seen that the great weight of authority in this ■country sustains the rule laid down in Railroad Co. v. Stout. Its authority has been recognized by our own decisions, although in cases where a ruling upon the precise point was not called for. I do not share the apprehension of my Brother Hooker that a man would not be ■safe to leave agricultural implements on his farm if this rule should obtain. Undoubtedly there must be something about the premises to entice a child, and, unless there is something calculated to allure a child of tender, years, and to appeal to his childish instincts, no duty of the owner is violated. Nor do I understand that the question of negligence or of no negligence is to be decided by ascertaining whether a farmer may or may not be guilty ■of the act. You may call the doctrine of these cases the result of evolution of the law, or what you please. It is a humane doctrine, and the principle cannot be better stated than in the extract from Thompson on Negligence above quoted. I do not feel justified in ignoring the overwhelming weight of authority which makes for this rule, as well as the* expressions of our own court. I dissent from the views expressed by Mr. Justice Hooker.

As a majority of the court express the view that no xight of action exists as against the corporation, it becomes unnecessary to inquire whether the directors are responsible.

Moore, J., concurred with Montgomery, O. J.


source: Caselaw Access Project

author: Grant, J. Moore, J.

license: Public Domain

text:
    NIEBOER v. DETROIT ELECTRIC RAILWAY.

    Street Railways — Injury to Passenger — Contributory Negligence-Riding on Bumper.
    Plaintiff, -while riding on the rear bumper of an electric car, was struck by another car, and injured. In an action, against the company, he claimed that he rode where he did because the car was crowded; but it appeared that he could have taken another car two or three minutes later, in which there was ample room. There was nothing to show any custom authorizing him to ride on the bumper, and the conductor, on observing his position; told him he had better go inside or wait for another car. Held, that plaintiff was guilty of contributory negligence, and could not recover for the injury. Moore, J., and Montgomery, 0. J., dissenting; being of opinion that the. facts warranted the inference that plaintiff occupied his position with the assent of the conductor.
    Error to Wayne; Carpenter, J.
    Submitted June 4, 1901.
    Decided October 22, 1901.
    Case by Peter H. Nieboer, by next friend, against the Detroit Electric Railway, for personal injuries. From a judgment for plaintiff, defendant brings error.
    Reversed.
    Plaintiff, about 6 o’clock p. m., desired to take one of' the defendant’s cars on the usual route to his home. Under the plea that the car was crowded, he climbed upon the dead wood or “bumper” at the rear of the car. The deadwood is a block of wood 3 feet long at the longest part, beveled at the corners, about 6 inches wide, and at the outside is from 2 feet 4 to 2 feet 6-inches long. Two large bolts go through the deadwood, and are bolted to-a cast-iron drawhead in the center. A drawpin an inch thick goes through the deadwood into the drawhead. Above the head of the deadwood are the bolts with the nuts thereon, the head of the drawpin, the staple to which the drawpin is fastened, and the chain attached thereto. The slack of the chain is also on top of the deadwood. The car platforms are inclosed for a space about - 3 feet high, with a railing on top. The car was evidently in a crowded condition. Whether plaintiff could have obtained standing room on the platform or inside of the car is not clear. There was room for the conductor to go through the car and collect fares.
    Plaintiff testified that he was riding with both feet on the deadwood and both hands hold of the railing, and that it was necessary for him to thus ride to keep from falling off. Two others got on and stood upon the deadwood with him, plaintiff being in the center. Cars were running at intervals of from two to three minutes.' The car on which plaintiff was riding had stopped. A rear car was approaching. The motorman, evidently not anticipating that the car in front would stop at that point, was unable to bring his car to a stop before it struck the one in front. The blow was not a severe one, and no one in either car was injured but the plaintiff. In some way his ankle was injured. He was unable to tell how. Either his foot must have been hanging over the deadwood, or he must have been standing with his foot at right angles with the deadwood, so that either his heel or his toes extended beyond it. Plaintiff testified that the conductor had not asked him for his fare. The conductor testified that he asked him for his fare, and that plaintiff replied that he would have to wait until he got his hands in his pockets. The conductor then said to him, “You better get around and get inside, or wait for another car,” and then went through the car to collect fares. The conductor did not collect his fare, but intended to return and collect it after he collected the fares of the other passengers. Before he returned, the accident happened. The case was submitted to the jury, who rendered a verdict for the plaintiff.

      Thomas T. Leete, Jr., for appellant.

      Ira A. Lieghley, for appellee.

       Rehearing denied, but new trial granted, October 18,1902.

   Grant, J.

(after stating the facts). Plaintiff was not invited to ride upon the deadwood. No custom was shown permitting him to ride there. The company had instructed its employés not to permit it. It was not intended or sanctioned for the use of passengers. It needs no, argument to demonstrate that the position was a dangerous one, and never intended as a place for passengers to ride. The place was so dangerous that the plaintiff considered it necessary to hold on with both hands. According to his own theory, then, it was a place where it would be next to impossible for him to pay fare. There was danger in rounding curves, from sudden stoppage and starting, and from collisions both’ in front and from the rear, which are not of uncommon occurrence. The two passengers who were standing with plaintiff jumped from the car, which was then standing still, and escaped injury. Plaintiff testified that he did not have time to jump. There was neither an express nor implied assent for the plaintiff to ride in this dangerous position. The conductor advised him not to ride there, by telling him that he better get off and wait, or get inside. This language cannot be construed into an invitation. It was a busy time, when people were returning from their work apd business to their homes. The conductor was not called upon to stop and put the plaintiff off. He had done all that was required in warning, if, indeed, he needed any warning. Plaintiff knew that, if the car was crowded, others were coming within two or three min•utes, which he could have taken, and the testimony shows that there was room on the next car. Plaintiff voluntarily, and without invitation or permission, chose to ride in a dangerous place, rather than attempt to get inside or to wait a few minutes for another car. His negligent act was a continuing one, and directly contributed to the injury. When a place is one not provided or intended for passengers to ride upon, and is in itself dangerous, the •employe who assumes to permit a passenger to ride in such a place acts without authority, unless such authority be shown expressly or by common custom. The case comes within the principle established by the following authorities: Chamberlain v. Railroad Co., 11 Wis. 238; Jackson v. Crilly, 16 Colo. 103 (26 Pac. 331); L. R. & Ft. S. Ry. v. Miles, 40 Ark. 298 (48 Am. Rep. 10); Carroll v. Transit Co., 107 Mo. 653 (17 S. W. 889); Railroad Co. v. Jones, 95 U. S. 439; Bard v. Traction Co., 176 Pa. St. 97 (34 Atl. 953, 53 Am. St. Rep. 672). The last case is the parallel of this in its facts, except that the conductor in that case did not know that the plaintiff was standing upon the bumper. We have examined all the cases cited in support of the plaintiff’s contention, and we think they are not applicable to this case.

Judgment reversed, and no new trial ordered.

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

Moore, J.

(dissenting). The plaintiff recovered a judgment of $2,000 against defendant for injuries received while he was riding on the deadwood of a car. The injuries were caused by a car following the one' upon which plaintiff was riding running into him. The case is brought here by writ of error. The plaintiff, when hurt, was 20 years old. When he attempted to board a car, it was full of passengers. He, with two others, stepped upon the deadwood of the car, which was a piece of wood on the outside of the rear platform, from which it projected. It is a little over 6 inches wide, and nearly 3 feet long. It was put on the car to enable a coupling to be made with another car. The drawbar runs into it, and a coupling pin drops through it into the drawbar. It would also serve as a bumper in case of a rear-end collision. It was separated from the rear platform by a railing a little more than 3 feet high, and was not intended for the use of passengers, though it was sometimes used by them when the car was crowded. After verdict, a motion was. made to set aside the verdict. • Upon overruling the motion the trial judge filed a written opinion, which states so clearly the issues involved that we insert a part of it here:

“Plaintiff was injured while a passenger on one of defendant’s cars. As the car was crowded, he and two others stood upon the deadwood outside the rear platform. While in this position he received an injury to his leg by a rear-end collision between the car upon which he stood and another car of defendant following it. He was the only passenger injured, and the inference is clear that, except for the position he occupied, he also would have escaped. The case was submitted to the jury, who found a verdict for the plaintiff. Defendant moves for a new trial on the ground that the court should have decided, as a matter of law, that plaintiff’s contributory negligence precludes recovery.
“I think that the position of the defendant is unsound, for two reasons: First, I do not think it can be held, as a matter of law, that plaintiff was guilty of contributory negligence; second, plaintiff’s negligence, if contributory, was not so connected with his injury as to bar recovery. We will discuss each of these questions separately:
“1. As a matter of law, was plaintiff guilty of contributory negligence ? The evidence warrants, if it does not compel, the conclusion that the car was crowded. It warranted the inference that plaintiff occupied his position by consent of the conductor in charge of the car. That evidence consists of the conductor’s own testimony. He testifies that he asked the plaintiff and the other two passengers who were with him on the projection to pay their' fares. They replied that they were compelled to use their hands to maintain their position, and that therefore they could not then respond to his request. He then said,
‘ You had better get inside the car, or get off and wait for another car.’ He then left them in this position, intending, as he said, to return later and collect the fares. It was left to the jury to say whether this did not amount to a permission to remain where they were. The conductor manifested his willingness to take fare from the plaintiff and his companions. It was only because they could not pay that he advised them to seek another position. The fact that he did not attempt to enforce his advice, that he gave them no opportunity to get off the car, that he moved away, intending to return and collect the fares at a more opportune time, clearly warrants the inference, if it does not conclusively prove, that what was said was clearly not intended as an order, and that the conductor understood that his advice was rejected, and permitted plaintiff and his companions to continue in this position.
“ In determining whether or not plaintiff was negligent, we are to look, not at dangers which no one could foresee, but at apparent dangers. Was the danger of injury in this position so obvious that a court should say, as a matter of law, that one occupying it was negligent? The obvious danger was this, and only this, — that of falling or being thrown from the car. The risk of this danger. was undoubtedly assumed by the plaintiff. This does not, however, prove that he was guilty of contributory negligence. If a person of ordinary prudence would have assumed this risk, then plaintiff in assuming it was not guilty of negligence. I do not think that it can be said, as a matter of law, that a person of ordinary prudence would not assume such a risk. All that was necessary to insure against that risk was a diligent use of one’s hands and feet. If one could maintain a secure grip upon the bar in front of him, and keep his feet upon the platform underneath him, he is protected against this risk. One who has a right to confidence in his ability to use these members cannot, in my judgment, be held negligent in relying on that confidence. To such a one the contingency of danger is comparatively remote.
“2. Assuming that plaintiff was, as a matter of law, guilty of negligence, I do not think that such negligence was so connected with his injury as to preclude recovery. ^The law by which it is determined whether or not the contributory negligence of the plaintiff bars recovery is very uncertain. The adjudicated cases are by no means harmonious, and there is an irreconcilable conflict between the principles announced by eminent judges and text-book writers. It has been stated that the plaintiff cannot recover if the injury complained of would not have occurred without his negligence. It has also been stated that plaintiff’s negligence will not bar his recovery if due care on the part of the defendant would have prevented the injury. If the first statement is correct, contributory negligence always prevents a recovery; if the second statement is correct, contributory negligence never prevents recovery. The truth is that the first statement can' be correctly applied only in cases of simultaneous negligence, as in the case of an injury to a person while crossing a railway in consequence of his own and the railway company’s negligence. The second statement can be correctly applied only in cases of successive negligence, as in the famous Donkey Case, of Davies v. Mann, 10 Mees. & W. 546, where defendant negligently ran into and injured the plaintiff’s donkey, which plaintiff had negligently permitted to go unattended on the highway. The test almost universally approved is whether or not plaintiff’s negligence is the proximate cause of his injury. If it is, he cannot recover; if it is not, he can. Even this test has been criticised on the ground that the term ‘proximate’ is misleading. I think this criticism just and important. The word ‘proximate ’ is ordinarily used to indicate the relation between defendant’s negligence and the plaintiff’s injury. As so used, it has.not the same meaning that it has when used to indicate the relation between plaintiff’s negligence and plaintiff’s injury. To illustrate, suppose in the case of Davies v. Mann, abo vq''referred to, that, as a result of the collision between the cart and the donkey, a third person had been injured; I think all will agree that the owner of the donkey, as well as the owner of the cart, would have been liable. See Lynch v. Nurdin, 1 Q. B. (N. S.) 29. And we have already seen that the negligence of the owner of the donkey was not so related to the collision as to preclude recovery in a suit by him against the owner'of the cart. As used in relation to contributory negligence, 'the term ‘ proximate ’ simply means that in some way the 'relation between plaintiff’s negligence and his injury is more remote than that between defendant’s negligence and the injury. Let us inquire whether, in the case at bar, there was the same relation between plaintiff’s negligence and his injury that there was between defendant’s negligence and that injury.
“ Plaintiff’s negligence placed him in a certain position. While in that position he was injured, either through the negligence of the motorman on the car upon which ho was situated, or through the negligence of the, motorman upon the car following. Assuming, as we have a right to assume, that he occupied this position by the consent of the conductor in charge of the car, then a duty to be diligent in carrying him was imposed on defendant. This duty was violated when plaintiff was injured in consequence of the negligence of one of defendant’s motormen. This negligence directly caused plaintiff’s injury. Plaintiff, at the time of his injury, was inactive and powerless. His negligence, if he was negligent, simply placed him in a position of danger, when he was injured in consequence of defendant’s violating a duty which it owed him in that position. That negligence had no such relation to his injury as had the negligence of defendant. Such negligence does not bar recovery. In support of these views I refer to the following cases: Jacobus v. Railway Co., 20 Minn. 125 (18 Am. Rep. 360); Carroll v. Railroad Co., 1 Duer, 578; Dunn v. Railway Co., 58 Me. 187 (4 Am. Rep. 269); Keith v. Pinkham, 43 Me. 501 (69 Am. Dec. 80). The case of Bard v. Traction Co., 176 Pa. St. 97 (34 Atl. 953, 53 Am. St. Rep. 672), cited by defendant’s counsel, is much like the case at bar. It differs, however, in this important particular: The conductor did not consent to the plaintiff in that case remaining in the position he occupied. Such circumstance, in my judgment, makes that case inapplicable to the facts under consideration here. I do not think it profitable to discuss the other cases cited by defendant’s counsel. I think all of them distinguishable from the case at bar.”

The principal question in the case is whether the court' erred in not directing a verdict in favor of defendant. It is insisted by counsel that, as a matter of law, the plaintiff was guilty of such contributory negligence that he is not entitled to recover; citing Downey v. Hendrie, 46 Mich. 501 (9 N. W. 828, 41 Am. Rep. 177); Glover v. Scotten, 82 Mich. 369 (46 N. W. 936); Bard v. Traction Co., 176 Pa. St. 98 (34 Atl. 953, 53 Am. St. Rep. 672); and some other cases. If there had been room in the car for plaintiff, or if, when the conductor saw him in the place of danger, he had peremptorily ordered him away from it, we think the position of counsel would be well taken; but the authorities are numerous that a very different rule applies where the car is crowded, and for that reason the place of apparent danger is occupied by .the passenger with the assent of the person in charge of the car. In addition to the authorities cited by the learned judge, see Seymour v. Railway Co., 114 Mo. 266 (21 S. W. 739); L. R. & Ft. S. Ry. v. Miles, 40 Ark. 298 (48 Am. Rep. 10); Watson v. Railway Co., 91 Me. 584 (40 Atl. 699, 44 L. R. A. 157, 64 Am. St. Rep. 268); Lake Shore, etc., R. Co. v. Brown, 123 Ill. 162 (14 N. E. 197, 5 Am. St. Rep. 510); Pickett v. Railroad Co., 117 N. C. 616 (23 S. E. 264, 30 L. R. A. 257, 53 Am. St. Rep. 611); Green v. Railway Co., 58 N. Y. Supp. 1039; Metropolitan R. Co. v. Snashall, 3 App. D. C. 420; Davies v. Railway Co., 67 Mo. App. 598; Sweeney v. Railway Co., 150 Mo. 385 (51 S. W. 682); West Chicago St. R. Co. v. Johnson, 180 Ill. 285 (54 N. E. 334); Pomaski v. Grant, 119 Mich. 675 (78 N. W. 891); Lynn v. Southern Pac. Co., 24 L. R. A. 710, and the many cases cited in the notes; s. c. 103 Cal. 7 (36 Pac. 1018); Sweetland v. Railroad Co., 177 Mass. 574 (59 N. E. 443, 51 L. R. A. 783); Transit Co. v. Venable, 105 Tenn. 460 (58 S. W. 861, 51 L. R. A. 886). If the street-railway company allows its cars to be so overcrowded that passengers are compelled to ride upon the platforms, running-boards, and other places of greater danger than the seats inside the car would be, and this is done with the assent of the person in charge of the car, which assent is indicated by the collection of fares, or by such other methods as indicate assent, the company cannot claim that the passenger assumes all the risks incident to his situation. The company may not profit by allowing this to be done and by collecting fares, and at the same time claim immunity from the liabilities attaching to a carrier of passengers.

A number of assignments of error relate to the admission of testimony.' Only one of them calls for consideration. The plaintiff was allowed to give testimony as to the amount of his earnings, and to the amount of bills incurred by him while in the hospital and in the employment ■of doctors because of his injury. It is said plaintiff is a minor; that his parents are entitled to his wages; and under these circumstances it was error to admit this testimony, — citing Baker v. Railroad Co., 91 Mich. 298 (51 N. W. 897, 16 L. R. A. 154, 30 Am. St. Rep. 471). Counsel for plaintiff says that the next friend of plaintiff in bringing this suit is his father, and that Baker v. Railroad Co., instead of being an authority against plaintiff, is directly in point in his favor. The record does not disclose the relationship between the plaintiff and his next friend. When this testimony was first • offered, it was ■objected to, and the objection-was sustained. Then an amendment to the declaration was permitted. The question was then renewed, when it was objected to as not within the declaration, incompetent, and immaterial.” As a matter of fact it was within the amended declaration, and, under the declaration, was competent and material, if the proper foundation had been laid for its introduction. The plaintiff testified that he was earning six dollars a week'; that he received his own earnings, and was to pay the bills of his doctor and at the hospital. Under these circumstances we do not think it was error to receive this testimony.

Judgment should be affirmed.

Montgomery, C. J.,.concurred -with Moore, J.


author: Hooker, J.

text:
    DETROIT, GRAND RAPIDS & WESTERN RAILROAD CO. v. EATON CIRCUIT JUDGE.
    1. Practice — Court Rules — Power to Adopt.
    Any power inherent in the circuit courts to mate rules regulating their own practice is restricted by section 5, art. 6, of the Constitution, vesting such power in the Supreme Court, to the extent, at least, that a circuit court cannot adopt rules conflicting with those prescribed by the Supreme Court, or covering matters of other than mere local concern.
    2. Same — Dismissal of Appeal.
    1 Comp. Laws, § 926, providing that, if an appeal from justice’s court be not prosecuted within such time as shall be prescribed by the “general rules of the court,”it shall be discontinued, does not mean rules made by the court having jurisdiction of the cause, but rules adopted by the Supreme Court under its-constitutional authority.
    3. Same.
    The fact that the Supreme Court has made no rule for the dismissal of appeals under said statute does not authorize the adoption of such a rule by the circuit court: the statute does-not require such a rule, but is permissive merely.
    4. Mandamus — Final Judgment — Writ of Error.
    Where an appeal from justice’s court was dismissed in the circuit, a judgment might have been entered on application of either party, which could have been reviewed by writ of error; so that, even if no judgment were in fact entered, mandamus to compel the vacation of the order dismissing the appeal was not the proper remedy.

      Mandamus by the Detroit, Grand Rapids & Western Railroad Company to compel Clement Smith, circuit judge of Eaton county, to vacate an order dismissing an appeal from justice’s court.
    Submitted October 8, 1901.
    Writ granted October 22, 1901.

      Frederick W. Stevens, for relator.

      Cassius Alexander, for respondent.
   Hooker, J.

On November 25, 1899, one Tucker recovered a small judgment against the relator before a justice of the peace. An appeal duly taken was subsequently dismissed under a local rule of long standing, which is as follows:

“Rule 2. If any cause now or hereafter brought into this court by appeal under the act entitled ‘An act to amend chapter 93 of the Revised Statutes of 1846, entitled “Of Courts Held by Justices of the Peace,”’approved February 13, 1855, shall, after the entry fee shall be paid, remain at any time for three successive terms subsequent to the time of the adoption of this rule without being noticed for trial, the appeal in said case shall, upon motion made before the case is brought on for trial, be discontinued, with costs, as authorized by section 207 of -said act, being section 7022 of Howell’s Annotated Statutes.”

This rule was made by the circuit court, and the record does not show how long it has been in existence. A motion to vacate said order having been denied, this application is made for a mandamus to compel such action.

Counsel for respondent defends the rule upon two grounds: (1) A general power to make rules; (2) under authority of 1 Comp. Laws 1897, § 926.

If, as is claimed, common-law courts in general have an inherent power to make rules of procedure, such power is restricted by our Constitution (section 5, art. 6), which provides that “the Supreme Court shall, by general rules, establish, modify, and amend the practice in such court, and in the circuit courts, and simplify the same.” Before the adoption of the Constitution, if not before the circuit courts were presided over by;circuit judges, the statute required the Supreme Court to make rules of practice for the circuit courts (Rev. Stat. 1838, p. 358, § 5); and such statute has remained, in substance the same, since that time (Rev. Stat. 1846, p. 350, § 13; 2 Comp. Laws 1857, § 3390; 2 Comp. Laws 1871, § 4912; 2 How. Stat. § 6409; 1 Comp. Laws 1897, § 196). Rules of practice for the circuit courts were made by the Supreme Court at an early day, and have existed since. They have been changed and revised from time to time. Manifestly, the imposition of this duty upon the Supreme Court carries with it the obligation upon the circuit courts to be governed by the rules made by the Supreme Court, and precludes the making of conflicting rules.

It is contended, however, that the circuit court may still make rules to cover subjects not covered by those made by the Supreme Court, especially to carry out the provisions of a statute which requires a rulé to make it effective. 1 Comp. Laws 1897, § 926, provides:

“If an appeal be not prosecuted within such time as shall be prescribed by the general rules of the court, the court shall order the same to be discontinued, with costs.”

The Supreme Court has never made a rule for the dismissal of appeals for want of prosecution under this statute, and it is said that the circuit court has authority to supply it. The rule was probably made upon that theory. We think this a mistaken view. The Constitution and laws seem to contemplate that the regulation of the practice in circuit courts shall be by general rules made by the Supreme Court; and, while there are necessarily minor matters of everyday practice which are within the discretion of the circuit judges, and which may, perhaps, be regulated by local rule, this is not one of them. The statute does not indicate that the practice should vary in different circuits, and we think it a strained construction to say that the language, “prescribed by the general rules of the court,” means rules made by the court having jurisdiction of the case. Certainly, the Supreme Court might make a rule for such cases, and, should it do so, it would be fatal to such construction, unless we should conclude that the statute was to limit the power of the Supreme Court to make rules in the premises, which we could hardly do in face of the constitutional provision. A more reasonable construction would seem to be that the general rules referred to are the circuit court rules prescribed by the constitutional authority; i. e., the Supreme Court. Again, we are not prepared to accept the broad proposition that the circuit court may supply real or imaginary deficiencies in the general rules. Furthermore, this statute need not be construed to require a rule for the dismissal of cases. It can be construed to be permissive, and, so long as the Supreme Court supplies no rule, it cannot be operative.

That this court has taken this view of the statute, and has thought such a rule unnecessary, seei^is probable from its treatment of these*cases. It has always been reluctant to sustain the enforcement of this and similar rules. In Fowler v. Pixley, 25 Mich. 513, where this identical rule name in question, this statute was referred to, and was spoken of as a “statute supposed to authorize this dismissal,” and the case was said to be not subject to the rule, for the reason that new pleadings had been filed in the circuit. Thus, though the question was avoided, apparently the court doubted the validity of the rule. In Willis v. Gimbert, 27 Mich. 91, — a case which arose in the same circuit under a similar rule, — the court said:

“The statute, however, only gives authority to do this where there is a delay to prosecute within such time as shall be prescribed by the .general rules of the court. * * * And as both parties have equal rights to notice the case for trial, and equal and the same means for expediting the proceedings, n’o very obvious reason exists for giving the circuit court a general authority to dismiss at discretion, and we do not think such authority has been conferred.”

Language could hardly express more plainly the opinion ■ that this statute neither imposed a duty upon this court nor conferred a power upon the circuit in the absence of a rule made by this court.

We are unable to learn from this record whether a judgment was formally entered or not. The order was, however, practically a judgment, and ordinarily the formal entry of the order upon which this motion is based would include the adjudication that the appellee recover his . costs. Apparently it did, for the costs appear to have been taxed. We have held that mandamus is not a proper remedy when error will lie. The authorities are so numerous that we do not cite them. If it be said that judgment was not entered in this case (and we cannot say that it was), that should make no difference. A judgment would have been entered on application of either-party, and, manifestly, if the want of a judgment is to entitle parties to a remedy by mandamus in all cases, it would be easy to extend the remedy to all cases by postponing the entry of judgment. In Merrill, Mand. § 201, it.is said that:

“Where a judgment for the plaintiff is arrested, he should apply for a judgment against himself, and, upon refusal to grant such judgment, a mandamus will compel it. Then, after the judgment is granted, he can appeal.”

In this case, if a judgment was rendered, a writ of error would lie, as was the practice in Fowler v. Pixley and Willis v. Gimbert, supra. If a judgment was not rendered,-doubtless it would have been upon defendant’s motion. Then error would have been a proper remedy. Inasmuch, however, as.we have issued the order in this cause, and the parties have filed their briefs, we will dispose of the question raised.

The writ will issue, but without costs.

Montgomery, C. J., Moore and Long, JJ., concurred. Grant, J., did not sit.


text:
    WARNER v. BOARD OF STATE AUDITORS.
    1. Public Officers — Contracts of Employment — Ratification.
    Where one employed by an agent of a public board performs the services contracted for with the knowledge and approval of the board, the contract becomes that of the board, and the question of its right to delegate its power to make contracts of hiring does not arise.
    2. Same — Employés of State Tax Commission — Compensation— ■Authority of State Auditors.
    Conceding that the act providing for the appointment of a board of State tax commissioners (Act No. 154, Pub. Acts 1899), in imposing certain duties on the board, impliedly authorizes it to employ clerks and assistants, the power to fix the compensation of such employés is vested in the board of State auditors, whose judgment is not subject to review.

      Mandamus by Willard E. Warner to compel the board of State auditors to allow relator’s claim for compensation as an employé of the board of State tax commissioners.
    Submitted October 8,1901.
    Writ denied October 22, 1901.

      Willard E. Warner (O. E. Warner, of counsel), in pro. per.

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

Act No. 154 of the Public Acts of 1899, being an act amendatory to the general tax law, provides for, and prescribes the powers and duties of, a board of State tax commissioners. Among their powers is that' of ascertaining the valuation of the properties of corporations paying specific taxes. To that end one M. E. Cooley was employed by said board to investigate and áppraise ’the property of the railroads of the State, and possibly that of other corporations; and it is alleged that he was given authority to employ such assistants as were necessary, and to contract with them for their services, and the salaries that they should receive frpm the State therefor. The relator was employed upon a salary of $200 per month, and performed services, for which the board of State auditors have allowed him compensation at the rate of $125 per month, and have refused to allow more. Relator asks a mandamus to compel the board of State auditors to allow an additional sum, upon the alleged promise of Cooley, which is claimed to have amounted to a contract binding upon the State. The petition alleges that it was made with the assent of the late Governor Pingree and the officers then constituting the board of State auditors, at a conference between them and the tax commissioners, at which Cooley was given authority to employ all such experts and assistants as he should deem necessary, at such salaries as he should deem expedient, and that the employment and salary agreed upon were approved by the president of' the tax commission, and payment was recommended by him.

It is claimed that the act providing for the appointment of the tax commissioners authorizes the employment by them of all necessary clerks and assistants, — not expressly, but by implication. The respondents do not question this, and therefore we do not consider or decide it.

The services being rendered with the consent and approval of the board of tax commissioners, it is unnecessary to determine whether they could delegate to Cooley their power to hire clerks and assistants. They have ratified his act, and may therefore be said to have employed relator.

The act is silent as to the appointment of clerks and assistants, and, if it can be said that the imposition of certain duties upon the board, by necessary implication, confers upon it authority to employ such aid (a point which we do not''pass upon), it does not permit the fixing of compensation. The Constitution lodges this power in the board of State auditors, and their judgment in the matter is not subject to review. Browning v. McGarrahan, 9 Wall. 298, 312; People v. Board of State Auditors, 32 Mich. 191; People v. Auditor General, 38 Mich. 750; People v. Board of State Auditors, 42 Mich. 422 (4 N. W. 274); Auditor General v. Van Tassel, 73 Mich. 28 (40 N. W. 847); Bresler v. Butler, 60 Mich. 40 (26 N. W. 825); People v. Board of Auditors of Wayne Co., 10 Mich. 307.

The application for mandamus is denied.

Montgomery, C. J., Moore and Long, JJ., concurred. Grant, J., did not sit.


author: Long, J.

text:
    FOGEL v. BLITZ.
    Guaranty — Construction—Discharge.
    Defendant gave plaintiff a writing in which, he guaranteed “the value of a consignment stock of watches and jewelry” that plaintiff might ship to a certain company, “to the extent of $1,000; said stock to be on memoranda for a period of no less than six months, and all reorders from said stock to be accompanied and paid for in cash. At the end of this period, or any renewal or extension thereof, the goods unsold can be returned.” Plaintiff sent the company five shipments, but a few days apart, aggregating $1,712, for which the company paid $550, and returned goods valued at $802. Held, that the guaranty covered only a single consignment of goods, not exceeding $1,000 in value, and that defendant’s liability, if ever existing, ended when that amount was paid for or returned.
    Error to Wayne; Waite, J.
    Submitted October 8, 1901.
    Decided October 22, 1901.

      Assumpsit by Robert R. Fogel against Louis Blitz on a contract of guaranty. . From a j udgment for plaintiff, defendant brings error. Reversed.

      Moore & Moore, for appellant.

      Anderson & Rackham, for appellee.
   Long, J.

It appears that on December 3, 1894, defendant wrote a letter to the plaintiff in which he guaranteed “the value of a consignment stock of watches, jewelry, etc., that you may ship to and place with the S. S. Blitz Jewelry Company, of Denver, Colorado, to the extent of $1,000; said stock to be on memoranda for a period of ho less than six months, and all reorders from said stock to be accompanied and paid for in cash. At the end of this period, or any renewal or extension thereof, the goods unsold can be returned. * * * I further agree to become surety for all direct, purchases made by the S. S.’ Blitz Jewelry Company of you to the extent of #500.” The last clause as to purchases is here immaterial, as no direct purchases were made. Plaintiff shipped goods on consignment as follows:

December 5, 1894............................... $401 44
December 6,1894---...................-........ 598 11
December 7,1894.......-....................... 606 73
December 13, 1894 _______________________________ 33 40
December 20, 1894 ......„ „....................- 73 77
§1,713 45

The jewelry company received these goods, paid $550 in cash on account of what it had sold, and returned to the plaintiff goods of the value of #802.32; making the total paid for and returned $1,352.32. The plaintiff brought suit against the jewelry company, claiming it had failed to pay for or return $558.88, and recovered judgment. This judgment not having been paid, this suit was brought against the defendant on the guaranty. The court made written findings as follows:

“It is conceded that there were no direct purchases made by the S. S. Blitz Jewelry Company, so the only question arises upon the $1,000 guaranty, which I hold to have been a guaranty of the consignment stock of watches, jewelry, etc. It seems that under this arrangement some $1,712.45 worth of goods was shipped to the Blitz Jewelry Company. From time to time there was returned to plaintiff $657.16 worth, which plaintiff checked over and received back. Goods not returned amounted to $1,055.29. There was paid in cash #550, and their claim now is for the balance, $402.62. Defendant claims that he should have had credit for the goods and money returned to plaintiff, and thus have been discharged from his guaranty of $1,000. I do not think a fair construction of the contract warrants that position. The contract evidently contemplates that the purchaser, after looking over the goods, shall return certain of them, and it is significant in that it provides that all reorders from said stock to be accompanied and paid for in cash. Hence it is inconsistent, it seems to me, to hold that any part of those returned was intended to be included in the $1,000 guaranty, it being an entire transaction. The inference is irresistible from the facts submitted that it was intended that the defendant in this case should be responsible up to $1,000 for the goods not returned or paid for. Hence the plaintiff is entitled to a judgment for $402.62, with interest.”

The contentions of counsel for defendant are:

1. That the Louis Blitz letter does not guarantee that the entire consignment stock, or any of it, will be either paid for or returned.

2. That the $1,000 is a limitation of the amount of goods to be consigned; that that limitation was exceeded, and the defendant never became liable at all.

3. That, if the defendant ever was liable, that liability has ceased by payment in cash and returned goods of more than $1,000, to wit, $1,352.32.

We need not discuss the first two contentions, as the third must dispose of the case. The guaranty was for a stock of goods to the extent of $1,000; all reorders to be paid for in cash. This shows conclusively that only one consignment was contemplated, and that, to wit, was limited to $1,000. The plaintiff shipped $1,000 worth and more, and the jewelry company has paid for and returned $1,000 worth and more, to wit, $1,352.32. The liability of the defendant, therefore, if any ever existed under the guaranty, has now ceased. The letter refers to a single consignment, and expressly provides that all reorders shall be paid for in cash. In Gard v. Stevens, 12 Mich. 292 (86 Am. Dec. 52), the guaranty was:

“ If you will let the bearer have what leather he wants, and charge the same to himself, I will see that you have your pay in a reasonable length of time.”

The plaintiff permitted the principal to purchase additional leather from time to time. The principal failed to pay, and suit was brought against the guarantor. The court held that the guaranty referred to a single transaction, and covered only the first order.

In the present case the quantity of goods was limited in two ways: (1) It was to be a consignment stock. There was no provision that it might be shipped from time to time, nor was there any language used that indicated that the consignment stock was to be kept up. On the contrary, all reorders were to be for cash. (2) The $1,000 fixed'a limit as to the quantity or value of the goods to be sent. The $1,000 was as much a description or limitation as the single consignment.

The judgment must be reversed, and no new trial awarded.

Montgomery, O. J., Hooker and Moore, JJ., concurred. Grant, J., did not sit.


author: Montgomery, C. J.

text:
    BAY CITY IRON CO. v. EMERY.
    1. Accounts — Mutuality—Statute of Limitations.
    A credit given to defendant without his knowledge, on an account which he had always denied owing, could not make the account a mutual one, so as to save it from the operation of the statute of limitations.
    2. Same — Instructions.
    An instruction that, unless a payment had been made on the account sued upon within six years, it was outlawed, is not subject to the objection that the jury might have understood that a payment in money was required, where, on the whole charge, it would have been impossible for them to draw that inference.
    3. Same.
    In an action on an open account, in which the sole defense interposed was the statute of limitations, plaintiff contended that the case was taken out of the statute by a credit given to defendant, while defendant claimed that such credit was-without his knowledge, and that he had always denied liability on thé account, on the ground that a third person was the real debtor. Held, that it was not error for the court to refer in the charge to the reason given by defendant for denying his liability.

      Error to Bay; Shepard, J.
    Submitted October 8, 1901.
    Decided October 22, 1901.

      Assumpsit by the Bay City Iron Company against Henry E. Emery to recover a balance due on an open account. Erom a judgment for defendant, plaintiff brings error.
    Affirmed.

      T. A. E. & J. O. Weadock, for appellant.

      James Van Kleeck, for appellee.
   Montgomery, C. J.

Assumpsit for balance due on an account for repairs done upon an engine in August, 1889, and some smaller items for work done at an earlier date. The sole defense was that the debt was outlawed. Defendant testified that he always denied liability upon the account, claiming that it was for one Glover to pay. Plaintiff’s witness who had charge of the account does not dispute this, but corroborates defendant. In October, 1895, plaintiff gave the defendant credit for $15 upon the account in question, for the use, in October, 1894, of two engines, one of which belonged to defendant and one to his son. Defendant testified that this transaction was between his son and the plaintiff, and that defendant was not notified that the credit was given to him until a few days before the bringing of the present action. Plaintiff’s witness testified that the transaction was with the defendant, and that it was understood that he was to have the pay for the work, and that statements were sent to him with the credit indorsed.

The court charged the jury as follows:

“Now, if you find there was no understanding or agreement between them in regard to the credit of the $15, then it does not avail as a payment to take this claim out of the statute of limitations, or to prevent its being barred, because the parties must agree upon the payment. The plaintiff cannot, by giving credit upon an account, — upon an outlawed bill, or a bill that may be outlawed, — for the purpose of preventing the running of the statute, make a credit, at his own volition, on that account, and save the running of the statute. He cannot do it unless it is agreed between the parties that there is to be an application upon the account; and that is a question for you to determine, whether or not it was understood between the parties that such a credit was to be made to Mr. Emery, and that it was to be credited upon that account, and properly applied upon it. If it was so understood between them, then it would be a proper application, and the plaintiff might maintain this action; otherwise it cannot, — and that is the question for you to determine.”

This instruction was sufficiently favorable, and covered all the material questions in the case. While it may be sufficient, to constitute a mutual account, that credit is furnished by one party to the other, in reliance that upon settlement the accounts shall be allowed the one to offset the other, as was said in Re Hiscock's Estate, 79 Mich. 536 (44 N. W. 947), it cannot be held that there are mutual accounts when one party denies liability upon the claim of the other, and credit is given to such party with full knowledge of the fact that it is clearly against his intention that the account shall be so applied. See Kimball v. Kimball, 16 Mich. 217; Lester v. Thompson, 91 Mich. 250 (51 N. W. 893).

The plaintiff also complains of a charge that, unless a payment had been made on the account within six years before suit, the debt was outlawed, upon the theory that the jury might have understood it to mean a payment of money. We think that, on the whole charge, it would have been impossible for the jury to draw this inference.

Another assignment of error is based upon allusions in the charge to the fact that defendant claimed to have always denied the account, and to the grounds upon which he based such denial. Plaintiff’s counsel state in their brief that the question of whether these items were properly chargeable to the defendant or to some third person was submitted to the jury. We think, however, that this is not the case, and, further, that a reference to these alleged facts was necessary in order to place fairly before the jury the question of whether the account was denied by the defendant at the date of the credit. The court might properly have said to the jury that, under the undisputed testimony, the defendant did deny liability and refuse payment upon plaintiff’s account.

No error was committed to the prejudice of plaintiff, and the judgment will be affirmed.

Hooker, Moore, and Long, JJ., concurred. Grant, > J., did not sit.