text:
    GEORGE v. TRAVIS.
    1. Intoxicating Liquors — Saloons—Religious Institution.
    Under Act No. 291, Pub. Acts 1909 (2 How. Stat. [2d Ed.] § 5091), prohibiting any saloon from doing business within four hundred feet of the front entrance of a church, the distance was to he measured along the property and street line between the points nearest to the front entrance of the church, and of the saloon, and a church located on the northeast corner of two intersecting streets having its entrance in the southwest corner of the building, and doors opening on both streets into the vestibule, from which there was a single entrance into the church, being less than four hundred feet from the door of the saloon on the opposite side of the street and at the end of the block, was within the statutory limits.
    2. Same — License—Cancellation oe License — Equity—Church.
    A saloon keeper who had paid his tax, secured his license, and filed his bond with the approval of the public authorities, and who was attempting to carry on his business within, four hundred feet from the front entrance of a church, may be enjoined by a court of equity from carrying, on his business as unlawful and the cancellation and surrender of the license will be decreed by the court, regardless of whether the conduct of his business amounts to a nuisance..
    3. Injunction — Intoxicating Liquors — Parties Complainant.
    On the relation of interested taxpayers, the prosecuting attorney of the county was the proper officer to file the bill of complaint to enjoin the conduct of a saloon within the distance of four hundred feet along the street from a church.
    Appeal from St. Clair; Tappan, J.
    Submitted January 18, 1915.
    (Docket No. 124.)
    Decided April 19, 1915.
    Bill by Thomas H. George, prosecuting attorney for the county of St. Clair, on the relation of George N. Jones and others, against Warren S. Travis for an injunction and other relief. From a decree for complainant, defendant appeals.
    Modified and affirmed.

      Moore & Wilson, for complainant.

      Erskine & Lungerhausen, for defendant.
    The amended bill was filed July 16, 1914, by the prosecuting attorney of St. Clair county as complainant, “upon the relation” of persons named therein, citizens of the county, who composed the board of trustees of the Methodist Episcopal Church of the city of Marine City, in said county. There was an answer, replication, and hearing in open court, and a decree was entered in accordance with the prayer of the bill, restraining defendant perpetually—
    “from conducting his saloon, or any saloon, in the building known as the Broadway Hotel in the city of Marine City having its street door opening on the public street in the said city of Marine City within a distance of 400 feet along the street line from the Broadway front door of the Methodist Episcopal Church, located at the corner of Broadway and Main streets in the said city of Marine City. A writ of injunction may be issued in conformity with this decree.”
    It is recited in the decree that the material allegations of the bill are found to be true. Under subdivision (/) of Chancery Rule 37, counsel have stipulated the facts of the case for review, and the trial court has certified that the facts stipulated are in accord with the testimony and satisfactory to the court. Eliminating the portion which refers to certain exhibits, they are:
    “I. That the Broadway Hotel, mentioned in the bill of complaint and pleadings in said cause, was erected and maintained as a hotel many years prior to the'erection of the said Methodist Episcopal Church mentioned in the pleadings in said cause, which was constructed- in the year 1904, and that during that time, and at the time the church was established, a bar where intoxicating liquors were, sold was maintained in said hotel. That about three years prior to the filing of the bill of complaint in this cause Messrs. John Jones and Hale P. Saph became owners of the property through foreclosure proceedings. That thereafter the hotel was vacant, and for about three years prior to May 1, 1914, the premises were unoccupied and became much dilapidated.
    “II. That in April, 1914, the defendant Travis obtained an option from the owners to purchase the property. That he had been informed that the trustees of said church had objected to the issuance of a license and maintenance of a barroom in said hotel, on the claim that it was within the 400-foot limit. That on the advice of counsel, before he obtained his license or improved the property, on April 5, 1914, he came to Marine City and observed the use made of the doors of the church during Sunday service, and came to the conclusion that the only front entrance to the church was on Main street and outside the 400-foot limit. That thereafter he applied for» and obtained a license, and established and maintained a bar where he sold intoxicating liquors, in the Broadway Hotel, from May 1, 1914, to the date of hearing.
    “III. That after he purchased the premises he expended about $2,400 in making repairs and improvements. That in its general appearance and surroundings the property is an improvement to the locality. That defendant conducts a quiet and orderly house, that is maintained and patronized as a hotel, with a barroom that is also maintained and operated by defendant.
    “IV. That said hotel is on the south side of Broadway street, facing north and with Market. street extending along its west side. That the front entrance is on Broadway, at the northwest corner of the building, and opens into an office or lobby. That at the south side of the lobby a door leads into a narrow hallway. That from this hallway patrons may descend a stairway to a basement washroom and public toilet, and they may also turn to the right and pass to the south through a doorway opened and closed by a roller door into the barroom south of the hallway. That a common door opens from this barroom to the west on a platform and steps onto Market street. That a cinder pathway extends from these steps and along the west side of the hotel north to Broadway.
    “V. That the church in question is situated on the corner of Broadway and Market [Main] streets, on the north side of Broadway and the east side of Main street. That Main street is one block west from Market street. That the lot upon which the church is built fronts on Main street. That a door opens from Broadway into a small lobby near the middle of the south side of the church building, and from this lobby those attending church services, church meetings, and Sunday school pass into either the Sunday school room or the church auditorium. That there is a large opening between the main auditorium and this Sunday school room, with doors which are frequently opened, throwing both into one auditorium.
    “VI. That the principal entrance into the auditorium proper is through a double door across the corner of the side wall of the church on Broadway and Main streets; this opening facing southwest. At this southwest corner of the church building there is a square tower, the base of which forms a vestibule 10 feet square. From Broadway steps lead from the sidewalk north into the vestibule through a double door. From the sidewalk on Main street like steps lead east through a like double door into the vestibule. Persons attending the church pass from the vestibule from both these entrances directly into the auditorium through the double door at its southwest corner. The doors leading into the church at the Broadway entrance and the Main street entrance are identical in construction and lead to a common entrance into the auditorium. Prior to the beginning of suit the west entrance was used by the congregation and attendants slightly more than that on the south. At all times since the church was built the membership and congregation have used the south door as a means of entering into and leaving the church. Since this suit was begun the south entrance has been used somewhat the most.
    “VII. The following distances are established: (1) From a point on the street line on Market street nearest the door of the barroom of defendant’s hotel, measuring along the east property and street lines of Market street, north to and across Broadway to its north line, thence west along the north property and street lines of Broadway to a point on said line nearest the doorway into the Sunday school auditorium on Broad street, is 353.6 feet. (2) From a point on Market street nearest the door of the barroom measured along the east property and street line of that street north to and across Broadway, to its north property and street lines, thence along the same west to a point nearest the center of the double door on the south side of the vestibule leading into the auditorium of the church, is 383.9 feet. (3) From a point on Market street nearest the door of the barroom, measured along the east property and street lines, north to and across Broadway, to its north property and street lines, thence west along said last-named lines to the street line on the east side of Main street, is 399.8 feet. (4) From a point on Market street nearest the door of the barroom, measured along the east property and street lines north to and across Broadway to its north property and street lines, thence west along the same to the east property and street lines of main street, thence north along said last-named property and street lines to a point nearest the center of the double door on the west side of the vestibule leading into the auditorium of the church, is 415.9 feet.”
    The questions presented to and answered by the court below, and.again presented in this court, are:
    “(1) Whether or not the prosecuting attorney has authority to appear and file the bill of complaint.
    “(2) Whether or not the front door of the defendant’s saloon is within 400 feet of the front door of the church in question, within the intent and meaning of section 37, Act No. 291 of 1909.
    “(3) If it be determined that defendant’s saloon or barroom is prohibited by virtue' of the above-named act, does its illegal operation day after day make it a public nuisance that may be enjoined by a court of equity?”
   Ostrander, J.

(after stating the facts). 1. The second question may be first considered. The church fronts upon Main street. The entrance is in the southwest corner of the building, and approached as well from Broadway, which is the street south of the church, as from Main street, which is the street west of the church. A point on Main street nearest the front entrance is more than 400 feet from the saloon. The point on Broadway nearest the entrance is less than 400 feet from the saloon. Having gained the little corner vestibule of the church from either street, there is a single entrance into the body of the church. We endeavored, in People v. Schneider, 170 Mich. 150 (135 N. W. 973), to so interpret the somewhat ambiguous language of the statute as to afford a workable rule, doing no violence to the language employed by the legislature. Within that rule, the question must be answered in the affirmative, although it is probable that, if the saloon was situated in a different direction from the church, it would be claimed that the measurement should be made to a point in Main street nearest the front entrance to the church.

2. The other questions may be considered together. Defendant has paid his tax, secured his license, filed his bond, with the express assent and approval of the public authorities charged with official duties in connection therewith. It turns out that, applying the statute as it may be applied, and as I think it should be applied, the saloon door is about 16 feet less than 400 feet from the front entrance to the church. The statute provides that:

“No license shall be issued to any one to open up and establish a new bar or saloon having its front entrance within four hundred feet along the street line from the front entrance of a church, * * * and after this act takes effect an attempt to open up and establish a new bar * * * having its front entrance within four hundred feet * * * from the front entrance of a church * * * shall be a violation of this ’act, and the person * * * so doing, upon conviction thereof, shall be subject to the penalties prescribed,” etc. Sec. 37, Act No. 291, Pub. Acts 1909 (2 How. Stat. [2d Ed.] § 5091).

It is not attempted to subject defendant to the pains and penalties of the statute, but, upon the complain! of the prosecuting attorney to a court of equity, to close the saloon, or bar, by the order of the court and the writ of injunction, and the question is presented whether a court of equity may properly grant the relief. Upon this point the argument advanced by complainant is that the saloon is a public nuisance, which may be abated, or restrained, by a court of equity. This court has held that equity has jurisdiction to abate a saloon, if a private nuisance, although the nuisance is also a breach of the criminal law. Detroit Realty Co. v. Barnett, 156 Mich. 385 (120 N. W. 804, 21 L. R. A. [N. S.] 585). We held in Gowan v. Smith, 157 Mich. 443 (122 N. W. 286), that mandamus was not the proper remedy to compel the observance of the statute relating tó the opening and closing of saloons. In Andrews v. Auer, 177 Mich. 244 (143 N. W. 68), it appeared that the saloon keeper stated, in applying for a license, that he was a citizen of the United States and of Michigan. It was charged in the bill of complaint that he was not a citizen of the United States, and for relief it was prayed that the approval of his application for license be declared null, that the license be canceled, and that he be restrained from further carrying on the saloon business. Without deciding whether a place where intoxicating liquors are sold contrary to law is a public nuisance, it was held that the jurisdiction of the court of equity extended to the canceling of certificates and other instruments executed by government officials and boards, when obtained by fraud or illegally. The cases cited in the opinion, the most of them, apply the rule that in cases of fraud the jurisdiction of courts of equity is concurrent with the jurisdiction of courts of law, and that courts of equity may grant more complete relief by compelling cancellation, or surrender, of instruments. See Mack v. Village of Frankfort, 123 Mich. 421 (82 N. W. 209), where such relief was denied, although fraud was alleged, on the ground that complainant had an adequate remedy at law. The cases of Village of Wolverine v. Circuit Judge, 162 Mich. 713 (127 N. W. 744), and Starks v. Circuit Judge, 173 Mich. 464 (139 N. W. 29, 43 L. R. A. [N. S.] 1142, Am. & Eng. Ann. Cas. 1914D, 773), were cases of applications to this court for writs of mandamus to compel the circuit judge, in the first case to dissolve, and in the other case to issue, a writ of injunction. The relief asked for in the first case in the court below was restraint of official action, in the other to restrain the conducting of a saloon. In neither case in this court was the question now being considered presented. In Osborne v. Township Board of Richland Township, 183 Mich. 220 (150 N. W. 249), the direction of official action, by mandamus, was the relief asked for in the court below, the proceeding being reviewed here by certiorari.

In no case called to my attention has this court intimated that the jurisdiction of equity courts extended to enforcement of the liquor law or the control of saloons or saloon keepers; that equity will interfere to prevent violations of the liquor law, or to inflict penalties therefor. There is, however, a distinction between cases like the one at bar and Andrews v. Auer, supra, and cases in which, upon the theory that an illy conducted saloon is a public nuisance, a court of equity is asked to interfere. The distinction lies in the fact that in one class of cases, like the present one, the defendant has no right to do business at all, but only has an apparent right, evidenced by the results of his own and of official action, while in the other class of cases the saloon keeper has both a real and an apparent right to conduct the business, but conducts it badly. In the second class of cases, the saloon keeper may conduct his business properly and within the law; in the first class, he has no right to conduct the business, at the particular place, at all. There is in each case responsibility to the criminal law; but in the cases of the first class the penalty is incurred at the outset, is continuing, and cannot be escaped by any method of conducting the business, while in the other class it is incurred only as in the manner of doing business the law is violated.

Defendant cannot, if he would, lawfully carry on his business at his present place of business, and every instrument and every vote or resolution upon which his apparent right is founded ought not. to have been given. Possessing the apparent right, the evidences of public permission and indorsement, a court of equity 'may declare them to be ineffective and insufficient, and compel their surrender, or cancellation. In Andrews v. Auer, supra, the evidences of right to do business were obtained by fraud; in this case, it must be presumed, they were obtained because of a misapprehension of, or lack of knowledge of, facts which, if understood, would have led to the refusal of the right.

In this view of the matter, the prosecuting attorney was a proper complainant, informing officer, the prayer of the bill may be treated as amended, and a decree entered in this court conformably with the views herein expressed. Neither party will recover costs of this appeal.

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


source: Caselaw Access Project

author: Ostrander, J.

license: Public Domain

text:
    BRALEY v. GRAND TRUNK RAILWAY COMPANY OF CANADA.
    1. Railroads — Crossing Accident — Negligence — Death — Signals.
    Where decedent was killed by defendant’s train at a crossing, and decedent drove a gentle team which was under control, and was struck by a freight train going from 15 to 40 miles an hour, as the conflicting testimony showed, and it appeared that the headlights were burning and the usual signals were given at the crossing, and plaintiff claimed that decedent supposed the freight was a regular passenger train which was due at the same hour and which ordinarily stopped at the station before passing over the crossing; and the testimony disclosed no reason why the train should not be running at the speed which the evidence showed as it passed the crossing, defendant as a matter of law was guilty of no negligence and a verdict should have been directed in its favor.
    2. Same — Contributory Negligence.
    The contention that the plaintiff’s intestate believed the train was a passenger train and would stop at the crossing, based upon no evidence but inference, and coupled with proof that decedent did not stop before passing over the crossing, and was struck by the train, was not sufficient to free plaintiff’s case of the inference that decedent was guilty of contributory negligence.
    3. Same — Evidence—Trains—Operation—Lookout.
    Evidence considered and held, to show sufficient care on the part of defendant railroad company in maintaining a lookout and in operating the train at the crossing.
    4. Same — Contributory Negligence — Stopping to Look.
    It is a rule of law, not a mere rule of evidence, that because a railroad is of itself evidence of danger and trains are run at high speed and cannot turn out for travelers, persons crossing the track must stop, look and listen before entering upon the point of peril.
    Error to Livingston; Miner, J.
    Submitted January 20, 1915.
    (Docket No. 19.)
    Decided April 19, 1915.
    Case by Elmer M. Braley, as administrator of the estate of William R. Wood, against the Grand Trunk Railway Company of Canada for the unlawful killing of plaintiffs intestate. Judgment for plaintiff. Defendant brings error.
    Reversed.

      Harrison Geer (W. K. Williams, of counsel), for appellant.

      Louis E. Howlett (Odell Chapman, of counsel), for appellee.
   Ostrander, J.

Plaintiffs intestate, riding in a wagon drawn by a team of horses, was killed by defendant’s train on a highway crossing in the village of Gregory (not incorporated), in Livingston county, at about 7:31 o’clock in the afternoon of November 25, 1912. He was a farmer, 51 years old, possessed of his faculties, had lived nearly all his life on the same street, 1% miles north of the crossing. Gregory was his market place, and he was accustomed during the winter to go to town, on an average, two or three times a week. He was a good teamster, and drove a gentle team. Upon the occasion in question the team had been hitched in the street 267 feet south of the crossing. From this point it was driven directly to and Upon the defendant’s track immediately in front of the moving train. The street intersects the track at right angles; the station house being 48 feet east of the east line of the street, and 14% feet south of the south rail of the track — a small structure 16% feet square. The street was lighted; one electric light hanging very nearly over the railroad crossing. The train, No. 43, was a freight, with nine loaded, no empty, cars and a caboose, west-bound, was late, did not stop at Gregory, and was running at a speed about which witnesses do not agree — from 15 to 40 miles an hour. Plaintiff recovered a judgment for $4,000, and, in seeking a review of the trial, the defendant contends, as it did in the court below, that nó negligence of defendant was made out, and that contributory negligence of plaintiff’s intestate was established. There was a motion for a directed verdict and various requests to charge, which, with the exceptions taken, raise these principal propositions.

Questions usually presented in cases of this character are absent. The headlight upon the locomotive was burning, and the usual signals were given. The court in the charge said to the jury:

“I think I am warranted in saying in this case that Mr. Wood must have known that a train was coming.”

Plaintiff’s counsel said in argument:

“Now, what difference in this case does it make whether or not Mr. Wood, upon that occasion, knew that a train was coming or not? He had no reason to believe that it was a different train from the one that the defendant told him he might expect to be there. He heard it coming, gentlemen. First, it was right here on that time that the passenger should be there, because he heard it give the same signals, ring the same bell that the passenger train would be giving or ringing, if it was there.
“I notice my Brother Williams acts as though he thought there wasn’t any evidence of that in the record, and for his benefit I am going to tell you. The gentleman has said, T don’t know whether it gave the same signals or notbut, out of their own breath, the witness that lived there, within 30 rods of the track, heard it all, saw the headlight, and he says, T thought it was the passenger train.’
“Gentlemen, as square-headed, sensible men that can think of their own accord, can they now tell us it was giving different signals than a passenger train, when all those old citizens and persons living near the track thought it was a passenger train on account of hearing the same signals, the same bell, the same kind of a headlight?
“Not only did Mr. Wood hear the same signals that the passenger train usually gave and give them at the same place, but, gentlemen of the jury, he saw the same headlight, and it was with a great deal of pleasure that I heard my brothers put in that testimony of that fact in this case, and it was with far greater pleasure that I heard them arguing that fact to this jury that those signals were all given there. What effect did it have upon poor Mr. Wood? Oh, it was saying to him, ‘Here’s the passenger train; don’t you hear that whistle?’ I have no doubt but he heard it, and gentlemen, I am perfectly willing to concede all that my brothers have said about his hearing it and about his hearing the bell and about his hearing the noise of the train coming down. Of course he did. He saw the headlight, and what did it do? It lured him on; it enticed him on to believe that it was a passenger train going through. Yes; like the song of the siren it lured him on to his danger and his fate, and the daughter was left an orphan, and the good wife was made a widow.”

The real issue, upon the decision of which the plaintiff relied, at least after the trial had progressed for some time, involved the admission of the fact that plaintiff’s intestate knew that a train was approaching. His theory was fairly stated by the learned trial judge in a portion of his charge to the jury as follows:

“Plaintiff further claims that at the time said freight train passed through said village of Gregory there was a passenger train which was due, and that a freight train was running on the passenger train’s schedule time or one minute thereafter; that plaintiff’s intestate was acquainted with the fact that said passenger train was due at that hour, and, relying upon said knowledge, drove across said railroad crossing at Main street. So that presents a question for your consideration, to determine whether the railroad company at the time in question was in the exercise of such care and took such precautions as the dangerous nature of the crossing required. Ordinarily the giving of the statutory signals is sufficient to protect travelers upon the highway who desire to cross the railroad track; but, if you should find in this case,by a preponderance of all the evidence in the case, that a passenger train was due at Gregory from the east at 7:30 on the day in question, and that it did not arrive there until some time thereafter, but that at 7:31, or one minute later than the schedule time of the passenger train, a freight train from the east went over said railroad and across said highway at upwards of 40 miles per hour, and it was dark, and there were obstructions between the track upon defendant’s right of way and the public highway south of said railway track which obstructed or partially obstructed the view of the engineer or fireman and prevented them from seeing pedestrians coming from the south of said railroad track on said highway, and also prevented or partially prevented pedestrians coming from the south upon said public highway, going across said railroad, from seeing an approaching train, then and under such circumstances it woud impose an additional duty upon the railroad company to exercise additional caution in approaching the crossing, and such duty would be commensurate with the peril to which travelers would be exposed who, with due care, were about to make the crossing, and in such a way as to give travelers an opportunity, by exercising due care and diligence, to meet and guard against the danger; and, if you find from all the evidence in this case that, under such circumstances, defendant did not exercise additional caution in approaching the crossing, then and in such case defendant would be guilty of negligence.”

Read in connection with that part of the argument of counsel which has been quoted, no one is left in doubt concerning plaintiff’s theory. I am impressed' that no such theory as this is indicated in the declaration — a point, however, which is not made by appellant. Assuming that the declaration may support the verdict and judgment, and that facts sustaining the theory would support a finding of negligence on the part of defendant, the theory is not supported by facts. The train which caused the injury was usually late, passing through Gregory at different hours during the afternoon and evening without stopping. The passenger train, on the time of which the freight was running, was very often late. Upon these points there is no dispute. The fact that the train was a freight train running close to the announced or schedule time of the passenger train, that it was traveling at a high rate of speed, and that it did not stop at the station, are none of them necessarily evidence of negligence.

Gregory is a village of 175 people; its business places, few in number, being mostly south of the railroad. Its single business street is 78 feet wide. As has been stated, the station was 48 feet east of the street. There is then an open space of 192 feet along the track to the elevator, which stands 17% feet south of the south rail. The elevator was 84% feet in length, east and west. East of it, 8% feet, is a coal shed 36% feet long, east and west, standing 18 feet south of the south rail. East of this, 15 feet, is a freight depot 50% feet long,, east and west, and 20 feet, north and south. Then, in this order, was a 90-foot coal shed, the stockyard, the east fence of which was 691.5 feet from the center of the crossing, a tool shed 1,052% feet east of the crossing, and the east crossing, which was 1,350% feet from Main street. There are no buildings south of the station along the east line of the street for 174.5 feet, so that, looking easterly, or northeasterly, plaintiff’s intestate could see, while traveling the most of this distance, the west end of the elevator. There was nothing about the traffic on this street to call for particular care on the part of defendant’s servants, exciting them to do more than to give the crossing and station whistles and keep the bell ringing.

Plaintiff cites in the brief, and relies upon, Marcott v. Railroad Co., 47 Mich. 1 (10 N. W. 53); Battishill v. Humphreys, 64 Mich. 494 (31 N. W. 894); Guggenheim v. Railway Co., 66 Mich. 150 (33 N. W. 161); Klanowski v. Railway Co., 57 Mich. 525 (24 N. W. 801); Hagan v. Railroad Co., 86 Mich. 615 (49 N. W. 509); Morse v. Railway Co., 168 Mich. 99 (133 N. W. 935); Detroit, etc., R. Co. v. Van Steinburg, 17 Mich. 99; Huggett v. Erb, 182 Mich. 524 (148 N. W. 805). It is, no doubt, the rule that the rate of speed at which trains may be properly — ■ prudently — operated depends upon circumstances. Speed which would be prudent in the open country would be imprudent, generally, in and over the streets of a city. And as people and animals do sometimes go upon railroad tracks, and sometimes find themselves in peril upon highway crossings, a lookout'from the engine is necessary that disaster may be, as often as is possible, averted. Nor may one in plain view upon the tracks, especially if that one is an infant, be run down by a train, but the train must be operated as the circumstances seem to require. Statutory signals must be given, and it is negligence not to give them. So much, in substance, and no more, the cases cited above hold to be the law.

A witness sworn for the plaintiff saw the plaintiff’s intestate, whom he knew, and a. boy who was with him, when the team was unhitched, and they got into the wagon. He stood by the side of the wagon and talked with Wood, the deceased. The witness heard the train (he was intending to take the passenger train) at about the time the team started. The train whistled, and the witness started diagonally across the street to the east side and followed the sidewalk north towards the railroad.

“I could hear the noise of the train,” he says, “coming all the time after I struck the sidewalk, but could not see it. The train was right in front of the elevator when it whistled. I think it whistled more than once when it was right by the elevator. I couldn’t say how many times. I didn’t know it was a freight train up to that time. I continued on my way to the passenger house. I saw Mr. Wood after he and I parted. He was driving along the street towards- the railroad. I couldn’t say whether he or the boy were driving. When the train came by the elevator I think Mr. Wood’s team was nearly on the track. By that I mean nearly on the rails. I heard the train whistle about the same time that I saw it by the elevator. I couldn’t say whether there was any place where you could see the train or not before it got west of the elevator. I didn’t see it before it got west of the elevator. About the same time I saw it I heard it whistle. At that time Mr. Wood’s horses were nearly on the track. I couldn’t tell exactly because I just glanced that way. I saw Mr. Wood stand up in the wagon as though he was trying to urge the team. I didn’t watch it all the way, because I was looking first at him and then at the train. I was probably 50 feet from the railroad track. I saw the engine strike the wagon at the crossing. I think it struck about in the middle. I couldn’t say how fast his team was going as he crossed over the track. From my experience in riding on trains and automobiles and things of that character I have some judgment of the speed at which trains pass. I think this train was going at least 40 miles an hour. After it crossed Main street I should think it stopped a full train length west of the crossing. I saw both. Mr. Wood and the Backus boy after the accident. I went directly up to the Main street crossing after the accident. I didn’t see the team, but I saw the box part of the wagon. I noticed that more than anything else. It was south of the track and against it, on the west side of the street. It was over near the fence; that is, the fence down to the cattle guard. It was probably 20 feet south of the track. Mr. Wood was found, I should say, about 50 feet west from the crossing, maybe farther, maybe not quite so far. He was dead when found. The Backus boy was found on the pilot of the engine sitting up. He was dead when found. I took the passenger train that night for Jackson. The regular passenger train going to Jackson had not arrived at the station in Gregory when this freight train went through.”

On cross-examination the witness testified:

“I think I was walking about 4 miles an hour. About the time I saw this train I heard it give a .couple of blasts of the whistle. I think two, anyway. About the same time I got a report of the whistle I saw the reflection of the headlight as it came into view. The headlight on the engine was lighted. I observed the train part of the time as it came into view from the westerly end of the elevator. I was probably looking at the train and team both. I think I was paying attention to what was occurring there. I didn’t do anything. There wasn’t anything I could do. I couldn’t say whether I called to Mr. Wood or not; I probably did. I couldn’t say whether I said anything to him or not. About the time the train came from the east corner of the elevator Mr. Wood’s horses were just going onto the track. I couldn’t say whether they were right on the track or near to it. I was looking at them just after I observed the train come from the west end of the elevator. I saw Mr. Wood stand up in the wagon. He was standing up at the time I looked. I didn’t observe him get up.
“Q. What was he doing?
“A. He was trying to — just as though he was trying to urge his horses across the track.
“Q. Was it light enough so you could see that?
“A. Yes, sir.
“Q. Did you see him strike his horses?
“A. Well, striking at them with something; I could see.”

A witness for defendant testified,

“I am 51 years of age. I have lived in Gregory about 23 years now. I have been employed for the last few years as section hand for the Grand Trunk Railway Company. I was working for that company in the month of November, 1912. I have been working for them 5 years last fall. I am working for them now in the capacity of section man. I was in Lawrence McClear’s meat market on the night of November 25, 1912, between the hours of 7 and 8 o’clock. That store is on the west side of Main street towards the extreme south end of the business portion of Gregory. It is next to the hardware. I don’t remember now who else was in the store with me. I knew William R. Wood in his lifetime, and have seen Win-field Backus some few times that summer. I didn’t see Mr. Wood or this Backus boy that night until after the accident. At the time I was in McClear’s store I did not hear any noise or signal which was given by an approaching train. I live 80 rods east of the crossing, in the village of Gregory. That would practically bring me down to what has been called in this record the east crossing. I live 18 rods from this east crossing. I live across the street from George Meabon. In going from my home to the business part of the village of Gregory, and coming from the business part of the village back to my home, I usually go down the walk to the railroad, down the railroad home; that is, down the walk to Main street to the depot, then east on the right of way to the east crossing, then south to my home. On this night in question I had started home before I heard any train. I didn’t hear or didn’t notice any train until I got within probably 60 feet of the railroad. Up to this time I hadn’t seen Mr. Wood or this boy. When I got to this place I heard the train whistle. I could see it as I looked up. It was just about at the stockyards. All I heard was two short blasts. I could hear them distinctly. There was no one with me. After I heard those two blasts of the whistle I looked up and saw the train. I could see the headlight; it was burning. When I saw the train it was about in front of the freight shed. I did not hear any other whistle afterwards. I could hear the roar of the approaching train running on the rail. I was just walking along leisurely at this time. I looked up right away and saw the wagon coming up by the side of me on the street. I was on the sidewalk, on the east side of Main street. The team was then just about abreast of me in' the highway. I did not know then who was in the wagon. The team was traveling along leisurely. That was the first I had seen of the team; I saw them as they approached the track. They were still trotting.
“Q. As you saw them as they were approaching the track, state whether or not they had increased their speed or diminished it from what you saw before?
“A. I calculated they was considerable faster. I didn’t say anything at that time. When I first Heard them I hollered. I simply hollered, ‘Whoa!’ and looked back to the train again. As I passed along toward the depot I saw the outline of the train as it came in. From the time I first heard this whistle down until that time I could still hear the noise or the roar of the incoming train. I heard the noise from the brakes or wheels of the train as it was passing in front of me. I heard the grating of the brakes and saw the sparks — the fire from the wheels on the rails. That was when the wheels were setting on to the rails. I didn’t hear any crash there, nor did not see what the men were doing in the wagon. I went right along into the depot to speak to the agent. I calculated there had been an accident. I went back and hunted for the man with the rest of them. There was another party there at that time; I didn’t know who the party was at that time. The agent spoke to me; then another man stuck his head in the door and said, ‘There is a man killed.’ He was behind me. I didn’t look around to see who it was. He was gone in an instant. Then I went back over to the scene of the wreck. I saw the train crew that night. I saw this flash of fire as it has been described here by some of the witnesses. It was a flash of light along the engine just after it passed a crossing. It was just a flash back and forth. It covered nearly the whole top of the boiler clear through the length of the engine. I didn’t notice that .the train crew had received any injuries until I saw them the next morning in Gregory. I saw that the engineer’s' eyebrows were burned, but did not notice anything particularly different with the fireman. I think this local freight, No. 43, was scheduled to come into Gregory at 2:20. That train was nearly always late. I have known it to stay there overnight; to be tied up. I have known of its getting in so late it would be clear over into the evening when they came in very often. I have known of the passenger train which was scheduled to come through there at 7:30, No. 29, the one going from the east to the west to Jackson, being late. It’s hardly ever on time. It’s very often late; anywhere from five minutes to a couple of hours. When the passenger train, No. 29, comes into the station to discharge and take on its passengers the engine or tender of that train nearly always covers the Main street crossing. That was quite often true prior to the month of November, 1912. When it laid across the Main street crossing it would block traffic going up and down that street.”

On cross-examination he testified:

“When I heard the whistle I saw it down past the elevator, down by the freight house. At the time I saw the train after it whistled it was down by the freight shed. I saw it almost the same instant I heard it whistle. At that time I looked up and this wagon was coming along behind me, and the horses were about opposite me. I have never measured the distance from there down to the crossing. I should think it would be 390 feet. When I first saw the wagon they were driving along leisurely, and at that instant I hollered, ‘Whoa!’ I didn’t know it was going straight through until after that. As soon as I hollered I looked back to see whether it was coming straight through. I couldn’t see whether it was a freight train when I hollered. I could see the headlight; that was all. I don’t know whether they heard me. They didn’t respond or indicate that they heard me. If this train was running 42 miles an hour, which was its rate from Gregory to Pinckney, it probably would take about four seconds for it to run from the freighthouse to the crossing. Mr. Wood was nearly over the track when the train struck him. I didn’t know the train was going that fast. I have said it was as far as 300 feet, but I never measured it. I have given my best judgment on these matters. When the train went across the crossing I could hear the brakes grind on the wheels, and they were set so tight that even the fire was flying off from the wheels. That train didn’t run quite 960 feet west of that crossing before it stopped. I didn’t measure it, but I have counted the rail lengths beginning right at the center of the crossing, at the traveled track, to where the pilot of the engine stood when the train stopped. I counted 30 rail lengths, each 28 feet long, making 840 feet. Notwithstanding the fact that those brakes were shut so tight that when it ran across that crossing the fire was flying, that train ran 840 feet before it stopped. At the rate of speed that train was going I think it made a good stop. I counted eight or nine cars in that train without the caboose, engine, and tender. They were claimed to be loaded. When they stopped the whole train was west of the crossing. I don’t know how far it was from the driveway across Main street to the caboose beyond the fence by the cattle guard.”

A considerable number of witnesses gave testimony to the effect that they heard the signals given by the train, not only those given when it reached the elevator, but signals given when it was east of what was called the east crossing.

If the question of defendant’s negligence is at all doubtful, there can be no doubt about the carelessness of plaintiff’s intestate. There was much at the time which demanded particular care on his part. The conjecture indulged by his counsel is that, knowing, as many others did, that the train was coming, he believed it to be the passenger train, that it would stop at the station, and that he speculated upon the chances of being able to cross the track ahead of it, resolving the speculation in favor of trying to do so. Plaintiff may not assume that his intestate had the knowledge imputed to him to sustain a recovery and exclude the assumption that he also had knowledge of other facts, which have been stated, connected with the running of trains. There is no basis for such a distinction. Mr. Wood did not stop, and it requires no argument to prove that the reasonably prudent man would have stopped.

In approaching and passing the station, the fireman was putting in coal, and only the engineer was on the lookout. And it is argued with much earnestness that the lookout was insufficient, and, considered with reference to the speéd of the train, wantonly careless, reckless conduct of the train crew may be found. There is no testimony tending to prove that the predicament in which the injured man placed himself was discovered, or that his intention to cross the track could have been discovered, in time to avoid the collision. A little increased speed of the train would have saved the unfortunate man in this case quite as effectively as a lessened speed. This is true in most of such cases. By what rule, then, shall railroad trains be operated? If in such manner that injury to one acting as plaintiff’s intestate may be avoided, what will that manner be? The law has provided, for the safety of those upon the highways, that certain signals shall be given by approaching trains; that warning signs shall be erected.

The rule has been long in force that, because a railroad is itself evidence of danger, and because trains are run at speed, and cannot turn out for travelers, the traveler shall stop, look, and listen before attempting to cross the track. The safety of those upon trains, as well as those upon the highways, is considered in these statute precautions and in this rule. The rule of look and listen, under the circumstances disclosed, is not a mere rule of evidence, but a rule of conduct — a rule of law. White v. Railway Co., 147 Wis. 141 (133 N. W. 148). See, also, the large number of cases digested in 4 Mich. Digest, Annotated, tit. “Railroads,” §§ 327, 328. The defendant observed the statute precautions, and, although this will not in all cases absolve it from responsibility, I am unable to find in the facts in this case reason for requiring greater care than was exercised. In its principal features the case is not unlike the one of Peck v. Railway Co., 155 Mich. 430 (119 N. W. 578). In my opinion, contributory negligence was, as matter of law, established, and upon both points which have been discussed the court should have directed a verdict for defendant.

■ The judgment is reversed.

Brooke, C. J., and McAlvay, Kuhn, Stone, Moore, and Steere, JJ., concurred with Ostrander, J. Bird, J., concurred in the result.


author: Stone, J.

text:
    SOLOMON v. SHEWITZ.
    1. Vendor and Purchaser' — Land Contracts — Quieting Title-Options.
    A contract relating to the purchase of land, wherein the owners agreed to sell, and the vendee agreed to buy, property described in the agreement at a stated purchase price, of which $100 was payable at the execution of the contract, $400 when an abstract of title was passed upon, and the balance in semi-annual payments of $100 each, with interest, wherein the vendor also agreed to furnish a quitclaim deed releasing the property from certain restrictions outstanding against the same, possession to be given and the deal consummated within thirty days, was not an option but an executory contract for the sale of property.
    2. Same — Good Faith — Notice.
    Where the evidence tended to show that on the day of making the first payment the vendee was Informed of an option given by the owner to another defendant, which, said vendor stated, had elapsed because of defendant’s failure to perform, the duty was imposed upon the purchaser to inquire as to the rights of the holder of the alleged option, and charged him with knowledge of such claim as defendant legally had.
    3. Land Contract — Acquiring Adverse Interest.
    The vendor of a land contract who, at the time of executing the agreement, had insufficient title under an option or agreement for the purchase of the same, could not, in derogation of his contract to sell, secure legal title of the property in the name of himself and wife; the conveyance will be treated in equity as a conveyance to the vendor alone.
    ' 4. Same — Parties—Husband and Wife.
    Having failed to join in the land contract for the sale of property in which she had an inchoate right of dower, the wife of the vendor, who had no knowledge of the execution of the contract by her husband, could not be compelled to release her dower rights in the lands and was not a proper party to a cross-bill involving its specific performance, although she had joined in the deed of said real property to a third person.
    5. Same — Specific Performance — Equity.
    Jurisdiction of a court of equity to decree specific performance of a land contract is not exercised as a strict matter of right in the party complainant: the question rests within the sound discretion of the court and the remedy may be granted or rejected according to the equities of each case. Specific performance may be refused although the defense is not such as to warrant rescission of the contract.
    Appeal from Wayne; Mandell, J.
    Submitted January 26, 1915.
    (Docket No. 62.)
    Decided April 19, 1915.

      Bill by Harry R. Solomon against Jacob Shewitz and others to quiet title to real property. From a decree for complainant, defendant Shewitz appeals.
    Reversed.

      Fred W. Smith (Benjamin & Betzoldt, of counsel), for complainant.

      Louis Smilansky and Harold H. Smilansky, for defendants Pierson.
   Stone, J.

The facts in this case are somewhat involved. On January 16, 1913, the title to the premises (consisting of 2% lots in Hunt & Leggett’s subdivision of certain lands in the city of Detroit) was in John W. Leggett. Mr. Leggett had previously given Justice R. Pierson an option to purchase said premises, which option would expire some time in March, 1913. While this option was in force, and on January 16, 1913, the agreement (Exhibit 2) was made by Justice R.. Pierson with Jacob Shewitz, as follows:

“Memorandum of agreement, made and entered into this 16th day of January, 1913, by and between Justice R. Pierson and Bessie L. Pierson, his wife, parties of the first part, and Jacob Shewitz, party of the second part, all of the city of Detroit, county of Wayne, and State of Michigan.
“Said parties of the first part agree to sell and said party of the second part agrees to buy the property situated and being in the city of Detroit, county of Wayne, and State of Michigan, to wit: Lots two hundred forty-seven (247), two hundred forty-eight (248), and the east twenty (20) feet of lot two hundred forty-six (246), Hunt & Leggett’s, subdivision of the south half of the south half of quarter section twenty-four (24), ten thousand acre tract, Hamtramck, being on the northwest corner of Harmon and Oakland avenues, as recorded in Liber ten (10), page 40 of Plats.
“The purchase price to be three thousand and fifty ($3,050.00) dollars, payable as follows: One hundred dollars ($100.00) upon the date hereof, the receipt of which is hereby confessed and acknowledged by the parties of the first part; four hundred ($400.00) dollars upon the examination of a Burton abstract of title, brought down to date, showing good and merchantable title in said vendors, and upon the execution of a Union Trust form land contract, the balance of two thousand five hundred and fifty ($2,550.00) dollars in semi-annual payments of one hundred ($100.00) dollars or more each, and interest at the rate of six (6%) per cent, per annum, payable semi-annually, the full purchase price to be due and payable on or before three (3) years from the date of said land contract.
“Said parties of the first part hereby sell the above-described property free and clear of all and any restrictions, and further agree to obtain a quitclaim deed from John W. Leggett and Grace F. Leggett, his wife, releasing the property from the following restriction, to wit:
“ ‘That no saloon or store shall he erected on said premises or that no dwelling house of the value of less than fifteen hundred dollars or less shall he erected fifteen feet from the street line upon said premises within ninety-nine years from the date of a certain warranty deed given by the said Leggetts to Charles H. Green and William W. Snyder, to wit, September 21, 1895.’
“Said party of the second part agrees to pay parts two, three and four of the Harmon avenue paving tax, due in the amount not exceeding two hundred and fifty ($250.00). dollars.
“Said parties of the first part are hereby given the privilege of mortgaging the above-described premises in any amount not exceeding fifteen hundred ($1,500.00) dollars. Deal is to be completed and consummated within thirty (30) days from date thereof. Possession to be given immediately upon said consummation.
“In witness whereof, the parties hereto have hereunto set their hands and seals at the city of Detroit this day and year first above written.
“Justice R. Pierson. [L. S.]
“Jacob Shewitz. [L. S.].”

About March 1, 1913, Pierson exercised his option with Mr. Leggett, paid the amount named in the option, and took a warranty deed of the premises to himself and wife. On the same day Pierson and wife sold and joined in a deed conveying the property to Harry R. Solomon for $8,375; the latter assuming a $1,500 mortgage which Pierson had given to the bank. The contract between Pierson and Shewitz was placed on record in the office of register of deeds, after the deed from Leggett to Pierson and wife was recorded, but before the deed from Pierson to Solomon was recorded.

On April 24, 1913, Solomon filed a bill of complaint in the Wayne circuit court, in chancery, against defendant Shewitz, claiming to be a bona fide purchaser for value by deed from said Pierson and wife of said premises, and that said agreement above set forth was of no force, and to have the said agreement between Pierson and Shewitz declared to be a cloud upon his title, and to have the same declared null and void, and discharged of record.

The defendant Shewitz filed a petition to the end that Justice R. Pierson and Bessie L. Pierson be made parties cross-defendants in said cause, and that process issue to bring them in. The petition was granted, and said parties were brought in. Thereupon said defendant Shewitz answered the bill of complaint, among other things, denying that complainant Solomon was a bona fide purchaser for value of said premises, and claiming the benefit of a cross-bill against said Solomon and Justice R. Pierson and Bessie L. Pierson. He set up his said agreement with said Pier-son, stated that he paid the $100 therein specified; that early in February, 1913, he informed said Justice R. Pierson that he was ready to carry out his part of the agreement, and instructed his attorney to prepare the necessary land contract and have the same in readiness for its execution, and arranged with said Pierson to close the transaction at a time and place named; that said Pierson appeared, and said defendant and cross-complainant made a tender to said Pier-son of the $400 provided for in the said agreement, but that said Pierson refused to sign said contract, claiming that he desired a short delay to perfect a mortgage before closing said deal, unless cross-complainant desired to pay the entire purchase price in cash; that cross-complainant consented to a delay of a couple of weeks in order that said mortgage might be perfected, but since that time, although frequently requested, said Pierson had at all times refused to carry out his part of said agreement; that on March 3, 1913, cross-complainant, having heard that said Pierson was attempting to sell said property to some one else, made an affidavit confirming the purchase aforesaid, and attached the same to the original agreement, and had the same recorded on the 4th day of March, 1913, at 9:30 a. m. in the office of the register of deeds of said county; that at that time there was no change in the record title which might have affected his interest; that he was informed and believed that said Solomon had knowledge of the contract between cross-complainant and said Pierson, when he purchased said premises, but that said Solomon claimed and considered cross-complainant’s interest in said property as an expired option, which was not the fact; that any interest which the said Solomon obtained by virtue of the deed mentioned in his bill of complaint was subject to the rights of this cross-complainant, by virtue of said agreement; that the deed from said John W. Leggett and wife to said Pierson and wife was recorded March 4, 1913, at 9:45 a. m.; that said cross-defendant Bessie L. Pierson had no interest in said property other than her dower interest. The cross-complainant prayed that it might be decreed that the said deed from said Pierson and wife to said Solomon be held void and of no effect as to said cross-complainant, and that said Solomon be decreed to quitclaim any interest he may have obtained to said property to said Pierson and wife, and, should said Solomon refuse so to do, that said decree might have the effect and force of a quitclaim deed; that it be decreed that said Pierson and wife specifically perform said agreement above set forth, and execute the proper conveyance to said cross-complainant, upon the payment of the balance in full of the purchase price of said property in accordance with the terms and conditions of said agreement; and that it may be decreed that said Pierson and wife deliver to cross-complainant a Burton abstract of title, brought down to date, showing a good and merchantable title in themselves, free and clear of all. liens and incumbrances, and that, in default thereof, cross-complainant be allowed a sufficient amount to have such abstract made. There was also a prayer for general relief.

The said complainant Solomon, as cross-defendant, and the said Justice R. Pierson and Bessie L. Pierson, cross-defendants, answered said cross-bill reiterating the allegations of the bill of complaint, and denying that said cross-complainant had any interest in said property, and denying most of the allegations of the cross-bill. The answers admit, however, that defendant Bessie L. Pierson, at the time of answering, had no interest in said property, but claim that on January 26, 1913, she and her said husband became owners in the entirety of said property.

The case, being at issue as to all of the parties, was heard upon testimony taken in open court. Complainant Solomon, among other things, testified as follows on his direct examination:

“I learned of the existence of an alleged claim of the defendant on this property the day I made the first payment of $200,- on the 27th day of February. Mr. Pierson, from whom I purchased the property, told me he had given a sort of option to the defendant, whom I had never seen and did not know, but that the option had expired; that he had asked the defendant to live up to this particular option, but he refused to do so, and he was at liberty to dispose of it. * * * Mr. Pierson explained it to me very thoroughly. I bought the property and accepted the deed in good faith, and paid my money for it. * * * I left the deed with the bank on Saturday, the 1st day of March, the day that the mortgage was put on there by Mr. Pierson in the bank, and Mr. Borgman suggested that I leave the deed with him so that he would put the mortgage on record before the deed went on record. I know from examination of the record that Mr. Pierson came into possession of the title the day he transferred it to me.”

On cross-examination complainant Solomon testified, in part, as follows:

“About the same time I paid the $200 I heard about the contract between Pierson and Shewitz. I had not departed from the place; it was right there at the time of the transaction. Mr. Pierson brought it up. I do not remember, before or after the paper was signed, but it did not make any difference to me whether it was signed before or afterwards, or whether I had knowledge of the fact that there had been a paper existing before I signed the paper, but relied upon Mr. Pierson’s explanation. He stated to me that some man by the name of Shewitz had been given an option on this property, and that the option had expired a week or ten days before, and that Shewitz did not live up to his part of the agreement. * * * I don’t know what Shewitz had agreed to pay for the place, but Mr. Pierson had told me approximately the same amount I was to pay. I never made any attempt to see the paper that was signed by Shewitz and Pierson, and I never made any attempt to find out who the man Shewitz was, as I did not think there was any occasion to, either before I paid the $200 or afterwards. I did not care what sort of paper he had. I was willing to rely upon Mr. Pier-son’s word, irrespective of what papers were signed by the parties. I took Mr. Pierson’s word for it. Mr. Pierson said it was an agreement, but that it had expired. The deal was closed the 1st day of March. sfc * *
“Q. Who paid for the expense of this litigation, you or Mr. Pierson?
“A. Why, at the time Mr. Pierson tendered the $100 back to Mr. Shewitz, he refused to take it, and Mr. Pierson wanted to return the money, and he refused to take it, and he said he would turn it over to his attorney. Mr. Pierson had given a warranty deed, and he stated he would be willing to clear up the matter.
“Q. The suit was primarily in your name, but Mr. Pierson’s proceeding?
“The Court: That is the inference I will have to draw.
“A. It was not part of my understanding and agreement with Mr. Pierson that I would buy the property with the understanding that Mr. Pierson would clear up the defect, as he claimed. I did not consider that there was any defect, and, as soon as I found out that the contract had been placed on record, I took it up with Mr. Pierson.”

Justice R. Pierson was sworn as a witness for complainant. He testified that he did not own the property on January 16,1913, but had an option on it from Mr. Leggett, the record owner. That witness subsequently acquired title jointly with his wife, and sold it to Mr. Solomon. On cross-examination he testified as follows:

“The option was given to me personally, but I did not take the deed in my own name because Mrs. Pier-son was furnishing some money to finance it, and the deed was made jointly. It was just a question of turning the property from Leggett over to Solomon, and it would not have made any difference whether it was in my name alone, as I lost all interest in the property as soon as it was sold to Solomon. I did not have a land contract, though I told Mr. Shewitz I had a contract from Mr. Leggett, and that the deed would have to come from Mr. Leggett in the form of a quitclaim, for he would not make a warranty deed and release the restrictions that were on the property at that time. * * * The contract or agreement with Shewitz had expired before I had an opportunity to sell it for cash. My option was a 90-day option for $1,710 describing the property to be sold for cash, in which I had 90 days to accept, and which privilege I took advantage of. I did not take advantage of the option until Mr. Shewitz’s option had expired, but I took advantage of it within the three months. * * *”

This witness further testified that, at the time' he made the contract with Mr. Shewitz, the option from Leggett was in his name; that, under the terms of the contract, he was to get a release of the restrictions, but he never made a tender of it to Mr. Shewitz, and never got it until after his (Shewitz’s) option had expired; that he got the deed from Mr. Leggett, including the release, and did hot make a tender to Mr. Shewitz after his option had expired; that he never submitted a contract and asked him. for money; that witness asked Mr. Shewitz if he was ready to carry out the deal, and he said he was not; that witness never gave notice of forfeiture, except by oral statement that the time was up, and he would not go ahead with the deal. Witness denied that Mr. Shewitz told him that he (Shewitz) was ready to close the deal, and he denied that Shewitz ever made him any tender at all.

Jacob Shewitz testified that he saw Mr. Pierson five or six times during the deal, and that he (Shewitz) was always ready to consummate his part of the deal at any time when the restrictions were removed; that he made a tender of the $400 to Mr. Pierson, but thought it was after the 30 days; that Pierson asked for an extension, and said he could not take that much money; that witness, should try to raise more money. Shewitz was corroborated by another witness as to the tender of the $400.

The trial court entered a decree in favor of complainant Solomon, holding that the agreement of January 16, 1913, was null and void and a cloud on the title of complainant, and that Shewitz deliver up the said instrument to be canceled, and that said Solomon was the owner of said land in fee simple by a title perfect as against said Shewitz, and costs were awarded to complainant. Shewitz has appealed.

We have read the entire record with much care, and are of opinion that the above-quoted instrument between Justice R. Pierson and Jacob Shewitz was not an option, as appears to have been claimed by Pierson, but was an executory land contract, valid and of binding force as to the parties thereto. Pier-son had the legal right to make such contract. We do not think that time was of the essence of the contract, and we are of opinion that such contract was in force at the time of the purchase of said premises by complainant Solomon.

By a preponderance of the evidence it appears that Shewitz had not forfeited his rights under such contract, but had made the tender claimed by him, and that complainant Solomon had notice of the existence of such contract at the time of his purchase, or at least sufficient notice to put him on inquiry as to Shewitz’s rights, and that Solomon was not a bona fide purchaser of said premises for value before notice.

Justice R. Pierson could not legally ignore his contract with Shewitz, and take a deed to himself and wife, to the. prejudice of Shewitz. He was precluded by his contract from so doing. In so far as he was concerned, the transaction should stand as though the deed had been made by Leggett to him. The right of Mrs. Pierson, then, would be an inchoate dower right in the land. She, never having joined in the contract with her husband to Shewitz, cannot be compelled to release her dower in the land. It is well settled in this State that the wife cannot be compelled to release her dower in lands which her husband has contracted to sell, and she is not a proper party to a bill by the purchaser for specific performance. Weed v. Terry, 2 Doug. (Mich.) 344 (45 Am. Dec. 257); Richmond v. Robinson, 12 Mich. 193; Buchoz v. Walker, 19 Mich. 224; Phillips v. Stauch, 20 Mich. 369.

The evidence in the instant case fails to show that Mrs. Pierson had any notice or knowledge of the contract with Shewitz, when the deed was made by Leggett. Had she had such notice or knowledge, she would have been a proper party. Daily v. Litchfield, 10 Mich. 29.

In Walker v. Kelly, 91 Mich. 212 (51 N. W. 934), specific performance, subject to the dower rights, was given, where the wife was not a party to the contract; the decree providing for compensation to complainant for present value of such contingent right of dower. However, it has frequently been held that the jurisdiction of a court of equity to decree the specific performance of contracts is not a matter of right m the parties to be demanded ex debito justitiss, but applications invoking this power of the court are addressed to its sound and reasonable discretion, and are granted or rejected according to the circumstances of each case. Specific performance is frequently refused, although the defense is not such as would warrant the rescission of the contract at the suit of the defendant. 36 Cyc. p. 548, and note; Rust v. Conrad, 47 Mich. 449-454 (11 N. W. 265, 41 Am. Rep. 720), and cases cited; Chicago, etc., R. Co. v. Lane, 150 Mich. 162 (113 N. W. 22).

We think there are cogent reasons why specific performance of the Shewitz contract against defendant Pierson alone, with an abatement for the present value of the wife’s dower interest, should not be decreed. One reason is that it changes the contract between the parties, and another is that it compels the vendee to accept an imperfect title, which he had not in mind when he agreed to purchase. See cases cited in Kuratli v. Jackson, 60 Or. 203 (118 Pac. 192, 1013, 38 L. R. A. [N. S.] 1195, Am. & Eng. Ann. Cas. 1914A, 203).

We are of opinion that the circuit court erred in holding that the agreement of January 16, 1913, was null and void, and in ordering the same to be delivered up and canceled. We think, however, that Jacob Shewitz should be denied relief here, and should be relegated to a court of law for any relief in damages to which he may be entitled. His cross-bill will be dismissed, without prejudice to his right to sue at law for damages. The bill of complaint of Solomon will also be dismissed, and the decree below reversed, with costs to defendant Jacob Shewitz against Solomon. The defendant Bessie L. Pierson will recover her costs to be taxed against Shewitz.

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


author: Stone, J. Ostrander, J.

text:
    ROUSE v. BLAIR.
    1. Railroads — Crossing, Accident — Signals — Stop, Look and Listen.
    In an action for personal injuries sustained by plaintiff, his wife, and child, at a railroad crossing which he was driving over in a covered automobile, evidence that defendant’s train was being operated backward, without a lookout stationed at the end of the train, and without giving the statutory signals, that as plaintiff approached the crossing from the east he slowed down and was able to look both ways, that when but a short distance from the track the regular passenger train passed north, that thereafter he and his wife kept constant lookout, that about 150 feet from the track plaintiff was able to see about 1,200 feet south, that he looked and saw no train in that direction, that thereafter the view was obscured by cars and buildings, and that about a quarter of a mile south of the highway the track curved and was obscured by trees and brush, that when he arrived within 18 or 20 feet from the track he discovered the approaching train from the south and attempted to cut off his gasoline and applied his emergency brake, that the automobile was making but a slight noise and that he discovered the train too late to avoid a collision, that the rate of speed of the freight was 25 or 30 miles an hour in passing through the village where plaintiff was injured; held, to present a question for the jury whether plaintiff was guilty of contributory negligence in failing to come to a full stop before attempting to drive upon the track.
    2. Same — Gross Negligence — Effect on Contributory Negligence.
    The conduct of defendants in operating the train without signals and without a lookout was not such gross or wanton negligence as would authorize plaintiff to recover notwithstanding his contributory negligence, but the question of defendant’s want of care in so operating its train was a proper question for the jury.
    3. Same — Contributory Negiigence — Duty to Exercise Care.
    After finding that he was in peril by reason of defendant’s negligence if the plaintiff did not act with coolness or sufficiently protect himself from the unexpected danger, it was for the jury to determine whether he was guilty of contributory negligence.
    Brooke, C. J., and Ostrander and Steere, JJ., dissenting. :
    Error to Berrien; Des Voignes, J.
    Submitted January 28, 1915.
    (Docket No. 117.)
    Decided April 19, 1915.
    Case by Elmer E. Rouse against Frank W. Blair and others as receivers of the Pere Marquette Railroad Company, for personal injuries to himself, his wife, and child. Judgment for defendants upon a directed verdict. Plaintiff brings error.
    Reversed.

      Cady & Andrews, for appellant.

      Parker, Shields & Brown (Gore & Harvey, of counsel) , for appellees.
   Stone, J.

The plaintiff brought this suit to recover damages for personal injuries to himself and also to his wife and child, at a railroad crossing in the unincorporated village of Bridgman, on September 19, 1913. The court below directed a verdict and judgment in favor of defendants. Plaintiff asks us to reverse that judgment, contending that his testimony made a case entitling him to the judgment of the jury. We state the testimony, placing upon it, as we should, the construction most favorable to the plaintiff. The plaintiff, his wife, and a child seven years of age, were injured by a collision between one of defendants’ work trains and an automobile in which plaintiff, wife, and child were riding across the track of the Pere Marquette Railroad Company, in said village, about 10 o’clock in the forenoon. The village had but one main street or highway, which extended east and west, and which furnished the only entrance to the village, and was quite extensively traveled, as the village was the shipping point of fruit raised in the neighborhood. On account of the village’s proximity to Lake Michigan, the general travel was from the east into the village. The defendants’ railroad crosses this main highway at the easterly side of the village, and was composed of one main track, a side track on the west of the main track, and a blind or stub track on the east of the main track and south of the highway, ending near the south sidewalk. The depot was about 40 feet south of the highway, and on the west side of the main railroad track and east of the side track. This stub or blind track was used by a fruit growers’ association to load fruits, and on the day in question there were standing upon it several refrigerator cars. Within 150 feet east of the main track the buildings on the south side of the highway were: First, a building called the association building, which was next east of a driveway along the east side of the stub track; a second building, known as the barber shop or poolroom, was from 100 to 150 feet east of the main track. Between the poolroom and the association building was an opening 50 or 60 feet wide, giving a clear, unobstructed view of the track to the south about 1,000 to 1,200 feet. From the association building to the main track the view was completely obstructed by the building and the line of refrigerator cars standing upon the stub track until the refrigerator cars were passed. The plaintiff (who resided at Benton Harbor, about 16 miles away, and who had driven in in a covered delivery automobile with his wife and child) was injured at the crossing as he was approaching the village from the east on this highway. The drive of the automobile was a right-hand drive, and it was being driven by the plaintiff. The child had been seated upon its mother’s lap, until they neared the railroad crossing, when the mother stood the daughter in front of her, in order, as she testified, that she “could look both ways.” When but a short distance from the main track, the regular, scheduled passenger train, was seen by the plaintiff to go north; however, both plaintiff and his wife kept a constant lookout and listened for any approaching train until they reached the crossing. At the opening between the said buildings, which was 50 to 60 feet wide, plaintiff and his wife looked toward the south, where they could see a distance of about 1,000 to 1,200 feet, and there was no train in sight, nor any sign of an approaching train. The railroad track curved to the west about a quarter of a mile south of the highway, and there were trees and bushes at this point that obscured a further view of the track. Plaintiff continued to keep a lookout both ways for trains, until after passing the end of the* box cars that were standing on the stub side track, when he saw, for. the first time, a train backing down upon him from the south. When he passed these box cars where he could see the train, he was within 18 or 20 feet of the main track where he was sitting in the seat, the car extending 4 feet or more in front of seat. Upon seeing the train, plaintiff immediately cut off the gasoline, opened the clutch of his automobile, and applied his emergency brake. When opposite the said buildings plaintiff reduced the speed of his automobile to four or five miles an hour, and continued at this rate of speed until he passed the end of the box cars, and was driving at not to exceed four miles an hour when he first discovered the approaching train. The automobile was making but a slight noise. When plaintiff first saw the train, he testified that it was too late to speed up and get across, and too late to turn, and too late to stop in time to avoid collision, and that he did all he could to escape the injury. The train in question was made up of 21 or 22 cars, with a flat car in front, followed by a caboose car and 26 others, at the end of which, and pushing the train, were the tender and engine. This train was at Sawyer, a station about six miles south of Bridgman, when the regular passenger train going north passed through. When the passenger train pulled out of Sawyer, this work train pulled out and followed, pushing the 22 cars ahead of the engine.

In taking the case from the jury, the trial court said:

“This train was running wild; that is, it was not a scheduled train.”

We are unable to find any testimony on the subject in the record. At the time of the collision it was running at a rate of speed of from 25 to 30 miles an hour through the village and across the highway. There was no person stationed at the crossing, and no person stationed on the front car of the backing train. The whistle was not blown, and the bell was not rung on the train in question as it approached the crossing. In describing the condition of the automobile the plaintiff testified:

“It was an inclosed Studebaker car. The sides of the car were covered. I can’t tell you exactly how deep the seat of the automobile was, but it was a little bit more than 16 inches. The top of the car extended over the windshield. In order to see out of the car you would not necessarily have to lean forward and get your face a little past the side of the car, because there were windows that we could see through. The top bent down toward the engine. There were windows on each side that we could see through. A person driving could look out of the windows either way and see.”

On the cross-examination of the plaintiff the following testimony was given:

“Q. Did you stop your own car?
“A. Not entirely; nearly so.
“Q. You did not stop?
“A. Not to a dead stop.
“Q. So you could ascertain if there was a train coming?
“A. If the train—
“Q. Answer the question. Did you stop your car when you saw a car standing on the switch track, so you could ascertain a train was coming?
“A. I did not stop the car after — we had listened for a whistle or some signal to notify us that there was a train coming; while we had been watching and listening, we received no warning or signals of any sort of danger approaching; while we had slowed down, and going slow enough so as to see and hear, there was no signal or sound given us.
“Q. You did not stop, did you?
“A. We did not stop — full stop.
“Q. You did not stop so you could make sure?
“A. We stopped so we could be reasonably sure.”

The automobile was struck midway, while upon the track, by the backing train, and carried before the train a distance of 530 feet before the train stopped. The automobile was ruined, and the plaintiff and his wife received serious, and it was claimed permanent, injuries from the collision. The testimony being closed on the part of the plaintiff, a motion was made by the defendants for a directed verdict in their behalf, upon the ground that the plaintiff was guilty of contributory negligence, as shown by the testimony in his behalf. The trial court granted the motion, and held that the plaintiff was guilty of contributory negligence, as matter of law, for failure to come to a full stop before reaching the track, and directed a verdict of no cause of action. An examination of the charge discloses that in the opinion of the trial court the case was ruled and governed by Shufelt v. Railroad Co., 96 Mich. 327 (55 N. W. 1013).

The main question raised and argued by counsel is, Was the trial court justified, as matter of law, in holding that, under the circumstances of this case, it was imperative upon the plaintiff to come to a full stop, before attempting to cross the railroad in question?

The plaintiff’s claims are:

First. That under the circumstances of this case the plaintiff was entitled to have his case submitted to the jury, on the question of contributory negligence, under proper instructions.
Second. That if plaintiff was guilty of contributory negligence in crossing defendants’ track without first coming to a full stop, yet the plaintiff is entitled to recover, as the facts shown at the trial established gross and great negligence on the part of the defendants in the backing of their train, with the engine in the rear, and consisting of 22 cars, at such a high rate of speed, over the highway in question, and without giving any signal or warning whatever of its approach.

We will discuss these claims in the inverse order in which they are presented. Under the more recent holdings of this court upon the question as to what constitutes gross and wanton negligence, we are unable to agree with appellant that the defendants were guilty of such gross negligence in the operation of the train which collided with plaintiff’s automobile as would authorize recovery, notwithstanding the contributory negligence of the plaintiff. Knickerbocker v. Railway Co., 167 Mich. 596 (133 N. W. 504); Putt v. Railway Co., 171 Mich. 216 (137 N. W. 132). That such manner of operating a train would be negligence, and was the proximate cause of the injury, were questions which might, in our opinion, have been 'properly submitted to the jury. It is not seriously claimed by defendants that the train was not operated in a negligent manner, but it is said that the failure to blow the whistle or ring the bell, even in connection with the backing of the train and the failure to have a man stationed upon the first car as a lookout, did not constitute the proximate cause of the plaintiff’s injury, but that the proximate cause was plaintiff’s failure to come to a full stop before attempting to cross the track. Can this be said as matter of law? Plaintiff had a right to expect that defendants’ trains would be operated in a lawful manner. We think that the controlling question is whether the conduct of the plaintiff was that of a reasonable man, under the circumstances. Did the plaintiff conduct himself as a reasonably prudent man would have acted, while rightfully expecting the defendants to handle their train in a lawful manner? These, it seems to us, were questions for the jury. If the jury should say that the defendants negligently operated the train, and that this was the proximate cause of the injury, and that the plaintiff did, under the circumstances, all that a reasonably prudent man would be called upon to do, and that the injury would not have occurred had the defendants been lawfully operating the train, then the plaintiff would be entitled to recover.

In our opinion, the Shufelt Case is not controlling here. In that case the plaintiff’s wife was driving in a lumber wagon with a box, and the road was dry and hard, so the noise of the horses and wagon traveling over a hard road was great. She did not listen for any train or signals. It was a regularly scheduled passenger train, somewhat behind time, crossing a highway in the country, where travel was limited, and the signals were given both by bell and whistle. In the instant case the plaintiff was driving slowly, in an automobile, the engine of which was making a very slight noise. Plaintiff was constantly looking and listening for a train. He had just seen the regular passenger train go north, and the collision resulting in his injury was caused by what the trial court called a “wild train,” consisting of 22 cars, with the engine placed in the rear. No signal by either bell or whistle was given, and in fact no proper signal could be given from the engine while in the rear of such a long train. A high rate of speed was used by the backing train over a highway where there was much traffic, and no lookout was placed on the approaching train. Whether this combination of facts might not rightfully lead the plaintiff to believe that he was safe in attempting to make the crossing, was, in our opinion, a question for the jury. Where different conclusions may be drawn from established facts, the question belongs to the jury. Beck v. Railroad Co., 156 Mich. 252-258 (120 N. W. 983). If, after passing the box cars, and when finding himself in peril by defendants’ negligence, plaintiff did not act with coolness, the jury should say whether he was guilty of contributory negligence. Fehnrich v. Railroad Co., 87 Mich. 606 (49 N. W. 890); Mercer v. Railroad Co., 151 Mich. 566 (115 N. W. 733). The Shufelt Case was affirmed by a majority of one, and it may be said that the signal given was a controlling feature which caused the affirmance.

“Ordinarily, when a traveler drives upon a railway track without stopping to listen, where his view is obstructed, and in consequence thereof he is injured, he is, under the law, guilty of contributory negligence, but the rule * * * is not imperative under all circumstances.”

The above is the latest expression of this court upon the subject. Morgan v. Railroad Co., 162 Mich. 573-576 (127 N. W. 683). In that case Chief Justice Bird also said:

“Viewing plaintiff’s conduct in connection with the surroundings and the conduct of the defendant in operating its train without a headlight or lookout, we are unable to say, as a matter of law, that plaintiff so far contributed to his own injuries that it will preclude recovery. The plaintiff testified, and his testimony is corroborated by two witnesses, that his horse was walking very slowly when he approached the main crossing as well as the other crossings. He looked and listened at each of the crossings. He understood that a train ran in the early morning, conveying the miners to their work, but he had never seen it at this crossing and was not expecting it.”

If the rule above stated could be applied when a train was on its regular morning trip, may it not be applied in the instant case, where no train was scheduled or expected? We think so. This court has recognized various exceptions to this general rule of requiring the traveler to stop before making the crossing, when the view is obstructed. Guggenheim v. Railway Co., 66 Mich. 150 (33 N. W. 161); Richmond v. Railway Co., 87 Mich. 374 (49 N. W. 621); Breckenfelder v. Railway Co., 79 Mich. 560 (44 N. W. 957); Barnum v. Railway Co., 137 Mich. 580 (100 N. W. 1022); Id., 148 Mich. 370 (111 N. W. 1036); Coffee v. Railroad Co., 139 Mich. 378 (102 N. W. 953); Hintz v. Railroad Co., 140 Mich. 565 (104 N. W. 23); Beck v. Railroad Co., supra. Our attention has been called to cases in other jurisdictions, but we think that the subject is covered by our own decisions.

We are of the opinion that the trial court erred in not submitting to the jury the question of the claimed contributory negligence of the plaintiff, under proper instructions.

The judgment of the circuit court is reversed, and a new trial granted.

McAlvay, Kuhn, Bird, and Moore, JJ., concurred with Stone, J.

Ostrander, J.

I think the court below was right, and that the judgment should be affirmed;

Brooke, C. J., and Steere, J., concurred with Ostrander, J.


author: McAlvay, J.

text:
    KLAWINSKI v. LAKE SHORE & MICHIGAN SOUTHERN RAILWAY CO.
    Master and Servant — Workmen’s Compensation Law — Course
    oe Employment — Railroads—-Personal Injuries.
    A section laborer upon a railroad who had taken refuge in a barn during a storm was not entitled to compensation under the employer’s liability law for his death caused by a stroke of lightning which struck the barn: the injury or accident did not arise out of or in the course of his employment, nor was death by lightning peculiar to the industry or occupation in which he was engaged. Act No. 10, Extra Session 1912 (2 How. Stat. [2d Ed.] § 3939).
    Certiorari to the Industrial Accident Board.
    Submitted June 18, 1914.
    (Docket No. 114.)
    Decided April 19, 1915.
    Katherine M. Klawinski presented a claim against the Lake Shore & Michigan Southern Railway Company for the death of her husband in defendant’s employ. From an .order awarding compensation respondent brings certiorari.
    Reversed.

      Angelí, Boynton, McMillan, Bodman & Turner, for appellant.

      W. Glenn Cowell, for appellee.
   McAlvay, J.

In its return to a writ of certiorari in this cause the Industrial Accident Board certifies as follows:

“That at the time of the injury for which compensation was sought herein, to wit, on the 15th day of May, 1913, respondent had accepted to become subject to the terms of Act No. 10, Pub. Acts 1912 (Special Session), commonly known as the ‘Workmen’s Compensation Law.’ That on the 28th day of July, 1913, said Katherine Klawinski made application to the board of arbitration of a claim to compensation from respondent for the death of her husband, Frank Klawinski, on the 15th day of May, 1913, while in its employ. That a committee of arbitration was duly formed which, after hearing the parties, made an award that respondent pay to said applicant the sum of $5.24 per week for a period of 300 weeks. That thereafter an appeal was taken by respondent from such award to said board on the ground that deceased did not receive an injury arising out of and in the course of his employment. That on the 20th day of November, 1913, an order was made by said board, affirming the award of said committee. The facts involved in this cause appear in the agreed statement hereto attached. The board does certify ■ that said statement of facts is correct.”

The following is the stipulation adopted by respondent board as its finding of facts in the case:

“State of Michigan — Before the Industrial Accident
Board.
“Katherine Klawinski, Applicant, v. Lake Shore & Michigan Southern Railway Company, Respondent.
“It is hereby stipulated and agreed between the parties hereto by their respective attorneys that the facts out of which controversy in the above entitled cause arises and which it is desired may be made a part of the return to the writ of certiorari heretofore issued from the Supreme Court in this cause to said Industrial Accident Board, are as follows:
“Frank Klawinski, applicant’s husband, was employed prior to and on the 15th day of May, 1913, by respondent as a section laborer. On said date he was working as a member of a section gang of six men on respondent’s roadway near Bronson, Mich. During the afternoon of that day a violent wind and rain storm arose. The foreman of the gang said, ‘Boys, we better get out of the storm.’ There was a barn near by, where the section gang had been in the habit of taking refuge from storms. The assistant foreman said, ‘Come and go to the barn.’ The foreman directed one of the men, named Kolassa, to go for the coats, and waited for him. While he did so, the rest of the gang, including Klawinski, went to the barn, the foreman and Kolassa going to a nearby tenant house. While in the barn, and during said storm, Klawinski was killed by a bolt of lightning. During the time the men were in the barn no work was performed. At such time as they had previously gone in this barn for shelter the men had been paid for their time and were so paid on this occasion. The assistant foreman was subject to the authority of the foreman and had charge of the men during his absence. It was in the presence of the foreman that he said, ‘Come and go to the barn.’ ”

The only contention in the case made by appellant is that the death of Frank Klawinski, for which compensation is asked by and was granted to his widow, did not result from “a personal injury arising out of and in the course of his employment,” and within the meaning of the workmen’s compensation law, and therefore the Industrial Accident Board erred in affirming the award of the committee of arbitration. The proposition is fundamental that a claimant is entitled only to an award of compensation for “a personal injury arising out of and in the course of his employment.” To determine whether the injury in the instant case is within the meaning of the law and arose “out of and in the course of his employment” we must consider the nature and character of that employment. Decedent was employed at the time as a section laborer, one of a section gang of six men, working upon defendant’s roadway at the usual and ordinary work performed by railroad sectionmen, in which it may be said, as a general proposition, there is no use of or work performed in connection with electrical machinery or appliances, nor any unusual proximity to such machinery or appliances. There is no doubt that it was the legislative intent to compensate workmen for injuries resulting from industrial accidents, and that such compensation is charged against the industry because it is responsible for the injury.

As far as the instant case is concerned the scope of the English statute may be considered identical with the Michigan workmen’s compensation lav/. Several cases have been passed upon by the English courts arising under the English law where compensation was sought for injury by lightning and, except in cases where the employment necessarily placed the employee at the time of his injury in a position subjecting him to unusual risk from lightning, compensation has been denied.

In a case identical with the instant case, where a workman employed as a road laborer, picking stones and clearing out gutters along a highway, during a thunderstorm was killed by lightning, the court held that the accident causing death did not arise out of the workman’s employment. The court said:

“I am unable to find any special or peculiar danger from lightning to which these men (deceased and his companion) were exposed from working on the road. No expert or other evidence was offered to me that their position on the road exposed them to any greater risk of being struck by lightning than if they had been working in a field or a garden or a factory. The antecedent probability that they would be struck by lightning was no greater in their case than it was in the case of any other person who was within the region over which the thunderstorm passed.” Kelly v. Kerry County Council, 42 Ir. L. T. R. 23, 1 B. W. C. C. 194.

This question has been before the industrial commission of Wisconsin in the case of Lindauer O’Connel Co. v. Hoenig, where the widow of John Hoenig, who came to his death by a stroke of lightning while he was employed by the company at work on a dam in the Fox river, taking planks out of the water above the dam, filed a claim for compensation on account of his death. Among other things, the commission found as a fact that “at the time and place of the injury to John Hoenig resulting in his death, deceased was not exposed to a hazard from lightning stroke peculiar to the injury [industry], or substantially differing from the hazard from lightning of any other out-of-door work,” and, further, that his death “was not proximately caused by any accident within the meaning of the term as used in chapter 599, Laws of Wisconsin 1913.” In a memorandum opinion filed in the case, the commission, among other things, said:

“Lightning stroke is not popularly spoken of as an accident where it comes from the action of the elements without the agency of man. When the agency [industry] through the agency of man combines with the elements and produces, injury to the employee by lightning stroke, it may well be said that the injury grows out of the employment and is accidental. Such has been the decision of the English courts under the English compensation act. We are aware that the language of the English act differs from the language of our act, but if we accept the construction of the legislative committee which drew the act, then we find the meaning of the two acts in this respect identical. Clearly the industry may be and ought to be charged with the burden resulting from the hazards of the industry itself. * * * We have no desire to pass on the question of public policy. That function is wholly within the province of the legislature. We merely desire to correctly interpret the legislative intent. The legislative committee in its report says that ‘compensation shall be paid when the injury grows out of the employee’s employment — it makes no difference who is to blame; it is sufficient that the industry caused the injury.’ So in the case of lightning stroke, if we can find as a fact that the injury grew out of the employment, or that the industry caused the injury, then undoubtedly - compensation should be paid.
“Assuming the law to provide compensation for industrial accidents only — those growing out of the employment and caused by the industry — we must approach the consideration of each case of injury by lightning on the question of fact, Did the injury grow out of the employment and did the industry cause the injury? The act provides for compensation for ‘personal injuries accidentally sustained * * * where the injury is proximately caused by accident.’ We are of the opinion that this language refers to industrial accidents; those caused by the industry and chargeable to the industry, and does not apply to injuries resulting from those forces of nature described in the common law as acts of God, such forces as are wholly uncontrolled by men.”

The prayer for compensation was denied, and the case dismissed.

Gur quotations from the foregoing opinion are made from a certified copy which was furnished the court by counsel for appellant, who stated that they were unable to find that the opinions of the industrial commission of Wisconsin were officially published.

It is our opinion that in the instant case claimant’s husband did not come to his death as the result of “a personal injury arising out of and in the course of his employment,” within the meaning of the workmen’s compensation law. It is clear from the stipulated facts that this injury was in no way caused by or connected with his employment through any agency of man which combined with the elements to produce the injury; that plaintiff’s decedent by reason of his employment was in no way exposed to injuries from lightning other than the community generally in that locality.

Under the stipulated facts in the case the Industrial Accident Board was in error in affirming the award of the committee of arbitration, and its decision and determination is hereby reversed and set aside.

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