author: Moore, J. Ostrander, J.

text:
    CITY OF OWOSSO v. MICHIGAN CENTRAL RAILROAD CO.
    1. Municipal Corporations — Ordinances — Railroads—Obstructing Crossing.
    An ordinance of the city of Owosso forbidding railroad companies from obstructing street crossings for more than five minutes, under a penalty of not to exceed $50, does not conflict with the general statute upon the same subject, which imposes a fine of $25 for each offense, 2 Comp. Laws, § 6301 (3 How. Stat. [2d Ed.] § 6656), and is expressly authorized by the provisions of sections 3173, 3183, 3186, 2 Comp. Laws (2 How. Stat. [2d Ed.] §§ 5695, 5705, 57081.1
    2. Same — Criminal Law — Penalty—Actions.
    The city was authorized to bring an action of assumpsit for the penalty against a corporation, which could not be imprisoned under the ordinance, although a fine and imprisonment were included as a part of the penal provisions of the enactment. See 1 Comp. Laws, § 3090 (2 How. ' Stat. [2d Ed.] § 5612).
    Ostrander, J., dissenting.
    Error to Shiawassee; Miner, J.
    Submitted April 29, 1914.
    (Docket No. 175.)
    Decided January 4, 1915.
    Assumpsit by the city of Owosso in justice’s court against the Michigan Central Railroad Company for a penalty. Defendant appealed to the circuit court. Judgment for plaintiff. Defendant brings error.
    Affirmed.

      Samuel H. Kelley, for appellant.

      Seth Q. Pulver, for appellee.
   Moore, J.

The plaintiff has an ordinance reading in part as follows:

“Sec. 2. It shall be unlawful for any railroad company, owning or operating any railroad running into or through the city of Owosso, to allow any engine, car or train of cars to remain standing on its tracks at the crossing of any street within the city of Owosso, so as to obstruct travel upon any sidewalk or street for a longer period than five minutes at one time.”
_ “Sec. 5. Every person violating the terms of sections 2, 3 or 4 of this ordinance shall upon conviction thereof, be punished by a fine not exceeding $50, in addition to the costs of prosecution, or by imprisonment in the county jail of Shiawassee county for a period not exceeding 60 days, or by both such fine and imprisonment, in the discretion of the court.”

It is the claim of the plaintiff, and there is testimony tending to support the claim, that upon the 20th day of October, 1913, in the forenoon, a freight train upon the tracks of the Michigan Central Railroad Company passed partially over the crossing on West Main street, in the city of Owosso, and stopped in such a manner as to completely block the crossing. West Main street is a paved business street, and just west of the Michigan Central tracks, upon the south side of the street, is situated the fire station house of the Owosso fire department. That department received a call of fire and in the usual manner answered the alarm. The fire was east of the Michigan Central tracks, and it was necessary for the fire department to cross the Michigan Central tracks on West Main street. The wagon passed out into the street, but was obliged to stop because of the obstruction of the train of cars on the Michigan Central Railroad. It is claimed the train obstructed the crossing eight minutes or more.

On October 21, 1913, a summons was issued by one of the justices of the peace at Owosso, for defendant, in a plea of trespass on the case upon promises, to plaintiff’s damage $500 or under. On the return day each party appeared by its attorney, and plaintiff declared orally in an action of debt for the penalty of $50 or under by virtue of the ordinance referred to.

Defendant pleaded specially, and asked that the case be dismissed because:

(1) That the ordinance was intended to make the offense criminal, and did not authorize an action of debt, nor the collection of a penalty.

(2) No provision was made for the punishment of an individual for the violation of said ordinance, and it cannot be applied to corporations as a corporation.

(3) The so-called ordinance, authorizing this or any proceeding for the blocking of crossings or highways, is in contravention of the statutes of this State.

(4) The city of Owosso has no power to sue for or collect a penalty in its own name, for the reason that the statute provides that the action must be brought in the name of the people, by the prosecuting attorney of the county, upon the request of the authorities of the city.

The court denied the motion to dismiss, and defendant pleaded the general issue. The case was tried. The justice found the defendant guilty as alleged in the declaration and assessed damages against defendant in the sum of $30 and costs. The defendant took an appeal to the circuit court, where later the cause cam'e on for trial before a jury. Defendant objected to the introduction of the ordinance, and renewed the objections made in the justice’s court, which objections were overruled. The trial of" the cause then .proceeded, and the jury returned a verdict in favor of the plaintiff, finding the defendant guilty as alleged in the declaration and fixed the fine at $50. Whereupon judgment was duly entered. The case is brought here by writ of error.

Appellant’s counsel calls attention to section 6301, 2 Comp. Laws (3 How. Stat. [2d Ed.] § 6656), which forbids a railroad company from obstructing streets and highways for more than five minutes, and providing a penalty therein of $25, and insists the ordinance is in contravention to section 6301, for the reason that the statute provides for a penalty of $25, and the ordinance provides for a fine of not to exceed $50.. We think a complete answer to this contention is found in 1 Comp. Laws (2 How. Stat. [2d Ed.] § 5695). Section 3173 provides:

“The council shall have supervision and control of all public highways, bridges, streets, avenues, alleys, sidewalks and public grounds within the city, and shall cause the same to be kept in repair and free from nuisance.”

Section 3183 provides:

“The council shall have the power to prohibit and prevent obstructions and incumbrances in, and encroachments upon the public highways, streets and alleys of the city and to remove the same, and to punish those who shall obstruct, incumber, encroach or maintain any encroachments, upon or in any such highway, street or alley.”

Section 3186 provides:

“The council may regulate the use of the public highways, streets, avenues and alleys of the city, subject to the right of travel and passage therein. * * * And to prohibit, prevent, remove and abate all nuisances therein, and to require the authors and main-tamers thereof to remove the same and to punish them; and generally to prescribe and enforce all such police regulations over and in respect to the public streets, as may be necessary to secure good order and safety to persons and property in the lawful use thereof.”

Appellant’s counsel insists, however, that even if the ordinance is valid the plaintiff has mistaken its remedy. We quote from the brief:

“An ordinance, like a statute, must be strictly construed. The ordinance in question designates a procedure in case of its violation of a purely criminal nature. It is not a case where the charter provides for the collection of a fine imposed under such an ordinance by suit where it is not paid, but the fact that we wish to emphasize is that the ordinance expressly designates the method of procedure by appropriate terms which can only refer to the authorization in the charter of procedure of the character of a criminal prosecution and at no place, inferentially or otherwise, provides for the bringing of a suit for the collection of a fine in advance of the procedure outlined by the ordinance. We are not dealing with a case where the ordinance imposes a penalty and leaves the collection of the penalty to the general authorization in the charter. The trouble has been that the court and the attorney for the plaintiff have been unable to appreciate the legal difference between a fine and a penalty, treating the terms as one and the same, and the conclusions of law based thereon cannot help but lead to improper deductions and conclusions. * * * The word ‘person’ in the statute applies to corporations. Subdivision 12, § 50, 1 Comp. Laws; Chicago, etc., R. Co. v. Ellson, 113 Mich. 30 [71 N. W. 324]; Turnbull v. Lumber Co., 55 Mich. 387 [21 N. W. 375]; Bush v. Sprague, 51 Mich. 41 [16 N. W. 222]. It could be brought into court in a criminal case by summons served upon its officers, trial had, and, if convicted, could be fined. Then the fine could be collected, if not paid, by an action in debt or assumpsit. But no such procedure was taken in this case.”

It already appears that the council was authorized to pass the ordinance.

It is conceded that the corporation could not be imprisoned, though section 5 of the ordinance provides for both fine and imprisonment in case of violations of the ordinance. Section 3090, 1 Comp. Laws (2 How. Stat. [2d Ed.] § 5612), reads:

“(3090) Sec. 2. Whenever a pecuniary penalty or forfeiture shall be incurred for the violation of any ordinance, and no provision shall be made for the imprisonment of the offender upon conviction therefor, such penalty or forfeiture may be recovered in an action of debt, or in assumpsit; and if it be a forfeiture of any property, it may be sued for and recovered in an action of trover, or other appropriate action. Whenever a corporation shall incur a penalty or forfeiture for the violation of any ordinance, the same shall be sued for in one of the actions aforesaid.”

Without stopping to refine words, we think section 5 of the ordinance provides a penalty, as the word is ordinarily understood, for its violation, and that the statute we have just quoted justifies the bringing of the action in the way it was done. A statute having similar provisions was construed in Yerkes v. Smith, 157 Mich. 557 (122 N. W. 223). See, also, 3 Comp. Laws, § 9805.

We have examined the other assignment's of error, but do not deem it necessary to discuss them.

Judgment is affirmed.

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

Ostrander, J.

(dissenting). I think no recovery can be had under the ordinance in this form of action. The ordinance is not aided by the sections.of the general law referred to in this opinion.


source: Caselaw Access Project

author: Stone, J.

license: Public Domain

text:
    BAMLET REALTY CO. v. DOFF.
    1. Appeal and Error — Evidence—Trial—Curing Error.
    The erroneous admission of testimony on the trial of an action for breach of a contract of leasing may be cured by the charge of the court, withdrawing from the jury the matters covered by the incompetent testimony.
    2. Landlord and Tenant — Eviction—Interference with Use of Premises.
    Acts of interference on the part of the landlord need not amount to actual physical expulsion, if the interference goes to the extent of depriving the tenant of the beneficial enjoyment of the premises; an eviction is effected when the act of the landlord is of such character as to deprive the tenant of the beneficial enjoyment of the whole or any part of the demised property.
    3. Same.
    In an action for rent and damages claimed to be due under a lease, in which the defendant claimed that he had been evicted by the owner and had surrendered the premises, evidence that the agent of the landlord had prevented the defendant from making use of certain rooms which he required in his business for sewing machines, and that the agent moved or caused the machines to be moved to another part of the floor, promising the defendant to build an extension to the room in which they had been situated, that the promise was never carried out, raised an issue for the jury on the defense of eviction.
    4. Same — Lease—Trial—Charge.
    Instructions of the trial court that they might find that the tenant had been evicted by the plaintiff, if his agent prevented the tenant from using a portion of the premises for the purpose for which the same had been leased, that if there was a partial eviction, the tenant might remain and continue to occupy the premises, but he might not be held for rent under the lease; on the other hand if the tenant acquiesced in what was done he could not afterwards, having slept on his rights and given the lessor the right to think that he was perfectly satisfied, terminate the lease; that if the landlord said to the defendant that if he was not satisfied, he could get out, and the tenant, with reasonable expedition, took advantage of the permission, and moved out of the leased building, the lease was terminated, held, to submit to the jury in a sufficient manner the question of eviction and surrender.
    5. Same — Requests to Charge.

      Held, that the court did not err in refusing to charge the jury as requested by the plaintiff; also that the verdict was not contrary to the weight of the evidence.
    6. Amendment — Trial—Damages.
    At the trial of an action for the third time it was discretionary, on appeal from justice’s court, whether or not the court should grant a motion of the plaintiff to amend its hill of particulars so as to include a claim for expense of broker’s services in re-renting the premises, which the defendant surrendered.
    Error to Wayne; Mandell, J.
    Submitted October 9, 1914.
    (Docket No. 44.)
    Decided January 4, 1915.
    Assumpsit in justice’s court by the Bamlet Realty Company against Louis Doff for rent and damages under a lease. From a judgment in plaintiff’s favor defendant removed the cause to the circuit court. Judgment for defendant. Plaintiff brings error.
    Affirmed.

      Prentis & Mulford, for appellant.

      Abram Sapiro, for appellee.
   Stone, J.

This case originated in justice’s court, where plaintiff declared on all of the common counts in assumpsit, and especially for use and occupation, and upon a written lease, filing a bill of particulars in which it claimed rent due under said written lease, dated February 10, 1910, for premises known as Nos. 601 and 602, Bamlet building, as follows:

The plea was the general issue, with notice of eviction and surrender. The written lease in evidence was made by plaintiff, as party of the first part, and the defendant, as party of the second part, for a term of four years and six months from and after March 1, 1910, upon the terms and conditions mentioned, to be occupied for a ladies’ tailoring establishment, and to be used for no other purpose without the written consent of the party of the first part. By the terms of the written lease the rent of $100 per month was to be paid as follows: $100 on the signing of the lease, and $100 on April 1, 1910, and $100 on the first day of each and every month thereafter during the life of the lease, being monthly in advance. The following additional agreement was made, bearing date February 9, 1910:

“Whereas, Bamlet Realty Company is about to make alterations on the sixth floor of the Bamlet building to accommodate Louis Doff, under his lease, and said alterations were to be completed by March 1, 1910, it is agreed that the rent due under said lease shall abate pro rata, during such time after March 1, 1910, as the Bamlet Realty Company is engaged in completing such alterations.
“This agreement attached to the lease of the Bamlet Realty Company and Louis Doff, becomes a part of the same.
“Electric wiring to be run for motor and electric lights to be put in where designated by party of the second part.” Signed by the parties.

Upon the trial of the case in the circuit court, as plaintiff’s counsel was making his opening statement, wherein he claimed $60 for commission paid a broker in re-renting the premises, objection was made by defendant’s counsel on the ground that the item was not in the plaintiff’s bill of particulars. Plaintiff’s counsel then moved the court to allow the bill of particulars to be amended by adding an item of $60, paid for re-renting the premises. There had already been two trials of the case, one in justice’s court and one in the circuit court. The court remarked that the motion came rather late, and that counsel might have made the motion before. Plaintiff’s counsel then stated that he appreciated that it was discretionary with the court, and the court said that its discretion at that late day called for sustaining the objection to the amendment, to which ruling plaintiff excepted. Defendant, by the undisputed evidence, moved into the premises before the 1st of March, at which time the alterations that were to be made had not been completed. Prior to this time the floor had been used as a dance hall, and was not partitioned. There is a conflict in the evidence when the alterations were made —whether before or after March 1, 1910. It appears to be undisputed that the use of the premises by the defendant for the operation of sewing machines was very soon objected to by the plaintiff, claiming that the noise of the machines was such as to disturb another tenant on a lower floor that was using rooms there for club purposes, and the machines were moved from the rooms that were rented and placed in a smaller room not included in the lease, and for the use of which the item of $175 was claimed. The parties do not agree as to who moved the machines, the plaintiff claiming that the defendant acquiesced in the arrangement, and consented to the moving of the machines into the small room. But it was the claim of the defendant, upon the trial, that the machines were moved against his will by one Stoddard, who seems to have been the agent or engineer of the plaintiff; that there was not sufficient space in the small room for the use of the large number of machines needed by defendant in conducting his business, and that only about one-half the number of machines could be set up and used in the small room; that he objected to this, and only consented to the change upon the promise of the plaintiff (which was never carried out) that there should be built an extension to this small room. The testimony was in dispute, also, as to the extent of the improvements that were put in the two rooms mentioned in the lease, the defendant claiming that these rooms were never fitted up suitably for show room and fitting room such as he needed in conducting his business, and that frequent complaint was made to the plaintiff in that regard, and he also complained that, being excluded with his machines from the large room, he had not sufficient room to carry on his business. It is the claim of defendant that in the latter part of May, or first of June, while he and his wife were making complaint to the president of the plaintiff this officer used some profane language to defendant’s wife, which caused their relations from that time on to be unpleasant. A witness for defendant testified upon that subject as follows:

“Q. Did you hear Mr. Doff complain to Mr. Barn-let or Mr. Stoddard at any time about the condition of the fitting room?
“A. Continually, he always complained about it, because he could not do his work. * * * I was present and heard Mr. Doff complain continually to Mr. Bamlet and Mr. Stoddard. First he said he was to fix them up about the latter part of May. One evening about quitting time, while Mr. Doff was at the elevator, he asked when he was to fix it up, when he was to fix up the premises, and he did not use very nice language at that time, and then Mr. Doff walked away.
“Q. What was said at that time, if you will repeat it?
“A. He said, ‘Damn it; I ain’t going to do a damn thing for you.’ And Mr. Doff said, ‘All right, I will look for another place.’ And he said, ‘Get out, and get out quick,’ and they did not complain after that; that was enough; it was the latter part of May.”

It was the claim of defendant that thereupon he commenced to look for other rooms, and, finally, on or about the 1st day of October, he vacated the premises in question, having paid all the rent under the written leasé, during the time of such occupancy. The evidence tended to show that the plaintiff was to some expense later in putting the premises in proper condition, and finally was able to re-rent the premises described in the written lease, on the 15th day of November at the same rental, and the $150 claim is for the rental value of the premises while they remained vacant for the month and a half between October 1st and November 15th. The trial of the case resulted in a verdict for the defendant of no cause of action. There was a motion for a new trial upon the grounds that the verdict and judgment were not in accordance with the just rights of the plaintiff, because said verdict and judgment were against the weight of the evidence and not justified by any proper evidence introduced in the case, because the verdict and judgment were not in accordance with the law, and because the court erred in admitting certain testimony favorable to the defendant and prejudicial to the plaintiff, which is set up in great detail, and also erred in refusing to give plaintiff’s requests to charge, and in the charge of the court. The motion for a new trial was denied, and the reasons therefor stated, to which plaintiff’s counsel excepted, and it has brought the case here upon writ of error.

There are thirty-four assignments of error considered and discussed under the following heads:

(1) Error in admission and rejection of testimony.

(2) Error in not striking out testimony.

(3) Error in not directing a verdict for plaintiff.

(4) Error in the court’s charge. •

(5) Error in refusing to give plaintiff’s requests to charge.

(6) . Error in not granting a new trial and reasons given thereon.

(7) Error in not permitting plaintiff to amend pleadings.

We have examined each of the assignments of error.

(1) In our opinion the alleged errors in admission and rejection of testimony, covered by the numerous assignments under this head, were cured by the court’s withdrawal of the matters from the jury. We cannot better demonstrate this than to quote from the charge of the court. The court, after stating the claims of the respective parties, said, referring to the written lease:

“This contract of lease provided for the renting by the plaintiff to the defendant certain rooms, or certain floor space on the sixth floor of the Bamlet building for a certain purpose, for the purpose of carrying on the business of making women’s skirts and gowns and dresses, I presume, but you have heard from the evidence what the purpose was. There, was also executed at the same time, or at a subsequent time — we are not informed of the time definitely — another writing which provided for cutting up the floor space into rooms by partitions and the furnishing of other things by _ the plaintiff to the defendant. The defendant claims this was not done, but I charge and instruct you that that claim cannot be properly made in this case, for the reason that the contract, that is, the paper writing between the parties, provided for a penalty, and that penalty was that if the improvements were not made as contracted for, then the rent of the premises should, during the time the premises were not put in proper order, cease; and by reason of the fact that each and every month during the time of occupation the defendant actually paid $100, the amount of the rent reserved, he is now estopped from claiming that was an eviction, or that the plaintiff did not carry out his terms of the contract, providing that the certain improvements should be made. So, although certain things have been said in the argument concerning that alleged wrong on the part of the plaintiff to the defendant, and although certain testimony has been táken on that point, I now charge and instruct you that you are to pay no attention to that, for it is not a good excuse for not paying the rent on the part of the defendant that the premises were not put in the condition that the parties agreed they should be put in. So that matter is out of the case.”

It seems, both by reason and authority, that any possible error committed by the admission of the testimony in question was cured by the court withdrawing the subject from the consideration of the jury and the positive instructions given on that point. Hill v. Robinson, 23 Mich. 24; Dykes v. Wyman, 67 Mich. 236-239 (34 N. W. 561); Cadman v. Markle, 76 Mich. 448-454 (43 N. W. 315, 5 L. R. A. 707); Blaisdell v. Scally, 84 Mich. 149 (47 N. W. 585); Tolbert v. Burke, 89 Mich. 142-145 (50 N. W. 803); Smith v. Railway, 155 Mich. 466-472 (119 N. W. 640); Stolz v. Railway, 167 Mich. 300-305 (132 N. W. 1021).

(2) It is alleged that there was error in not striking out testimony. The following appears:

“Plaintiff’s Attorney: I desire to make a motion to strike out all the testimony that alterations were not made, and that the alleged acts do not constitute an eviction or surrender. * * *
“The Court: There is some testimony on the part of some one that Mr. Bamlet, as an officer of the corporation, said, Tf you don’t like it, you can get out,’, and on that declaration they did decide to move, and the question is raised whether they did move because of that, and whether they used diligence in moving.
“Plaintiff’s Attorney: Whether such acts would constitute an eviction, or whether we could put them out?
“The Court: I shall charge the jury that there is nothing here under the repair clause of the agreement that would justify their leaving; that must be so, because a long time has elapsed, and the only justification for leaving was the fact that either the conditions were rendered so intolerable to the tenants, or it amounted to an eviction, or they left under the express consent of the landlord.
“Plaintiff’s Attorney: I want it to appear that we move to direct a verdict for rent for a month and a half, and damages to the small room. I would like to be heard on that, but not in the presence of the jury.
“The Court: There are two matters only suggested by the evidence, the weight being with the jury whether the conditions were rendered intolerable by reason of certain conduct of the plaintiff, and the other is whether an express promise was given, and those two matters are in dispute and are the only matters.”

The defendant insisted and gave evidence tending to sustain his position, that the interference practiced by the plaintiff’s officer, Frank Bamlet, upon the defendant in refusing to allow him to use the rooms mentioned in the written lease for the purposes for which they had been rented, constituted an eviction. We have examined the authorities upon the subject quoted by counsel upon both sides, and are of the opinion that- this claim of the defendant, if found by the jury to be true, would bring the case within the decisions of this court, holding that to constitute an eviction of a party, an actual, physical expulsion from the rooms would not be necessary. Any act or acts of the landlord which deprived the tenant of the beneficial enjoyment of the rooms to which he was entitled under the lease would amount in law to an eviction. Grove v. Youell, 110 Mich. 285 (68 N. W. 132, 33 L. R. A. 297), and cases there cited; Adams v. Werner, 120 Mich. 432 (79 N. W. 636); Pridgeon v. Boat Club, 66 Mich. 326 (33 N. W. 502). There this court used the following language:

“A party should be held evicted when the act of the landlord is of such a character as to deprive the tenant, or has the effect of depriving him, of the beneficial use and enjoyment of the whole or any part of the demised property, to the extent he is thus deprived.”

We do not think there was any error in refusing to strike out the testimony upon that subject.

(3) We do not think the court erred in refusing to direct a verdict for the plaintiff.

(4) Error is assigned upon the following part of the charge of the court:

“The plaintiff claims that under the terms of the lease the defendant was holden and bound for a period of 41/2 years. Instead of staying during that period and paying rent, that without any legal justification or excuse the defendant left the premises at the expiration of some six months. The plaintiff claims that it did what it was obliged to do — it sought to get another tenant — and that it used expedition in that matter, but did not succeed in getting another tenant until the expiration of a month and a half, and therefore it claims the right to recover here the rental for a month and a half. That is how their claim m that regard amounts to $150. So much for the plaintiff’s claim. With regard to that claim the defendant says this:
“ ‘You agreed in your lease to give me the premises fitted up and suitable for my business, and it was agreed and understood between us that I was to carry on a certain business, and you knew that my business would call for the use of certain sewing machines, and for the use of the premises in a certain way, and you contracted to give me the premises to be used in that manner, and this obligation on your part you failed to fulfill, and therefore you evicted me, and you cannot complain because I left.’
“The defendant claims that he had the right, under his lease, to set up his sewing machines and run them in any part of the premises he desired under the terms of this lease. Because they made a noise, the plaintiff said, ‘You cannot run your machines here,’ and took them out of the principal room and put the same in a small room, which, the defendant claims, prevented him carrying on the volume of business that he expected to carry on in those premises. In answer to that claim of the defendant the plaintiff claims that the defendant was perfectly satisfied, and that when the suggestion was made that the sewing machines were making too much noise for the comfort and convenience of the people who occupied the premises below these rooms, the defendant acquiesced and used his sewing machines in the small room, called the smaller room here, and nothing was heard in the nature of a complaint from the defendant. There is a statement of facts that is contradicted. You, as judges of the facts, will have to find out from a search of the evidence in the case just which theory is established. I charge and instruct you with regard to the defendant’s claim this: That where one leases premises to be used for certain particular purposes, if he is prevented from carrying out that purpose by his landlord, there becomes an eviction in part, if not in whole, and that where there is a partial eviction, the tenant has the right to remain and pay the rent but he cannot be holden under the lease. On the other hand, if the tenant acquiesces in what is done, he cannot afterward, after the lapse of a long time, after he has slept on his rights and given the other party to the lease the idea that he was perfectly satisfied, he cannot then step forward and terminate the lease. The rights of the parties are sometimes fixed by a series of conduct as well as by word by one and agreed to by the other, and the claim of the plaintiff is this: That as the defendant occupied those rooms without any notice to it of dissatisfaction, during all that time there was no legal eviction, either in whole or in part, from the premises. That is a question of fact, and will rest entirely with you to be determined. Now, it is further claimed by the plaintiff that this occupancy by the defendant was continued; that nothing was ever said by the plaintiff that gave the defendant the right to leave at any time. The defendant with regard to that claim of the plaintiff, says this: That at some time during the occupancy the defendant objected to the manner in which things were being conducted, and that the president, Mr. Bamlet, himself, of the Bamlet Realty Company, stated that if the defendant was not satisfied, he could get out, and that he accepted that as a release from his obligation under the lease, and actually did get out with as great expedition as the circumstances would permit. Now, if anything of that kind was said, the evidence shows that it was said in the spring, either in May or June, but the time is not definitely fixed by any of the witnesses, and you will have to determine whether it is reasonable to believe that the defendant got out by reason of that statement, if the statement was made, although the statement is denied, whether he got out at the end of September by reason of that, or whether some other thing in the mind of the defendant at that time caused him to move. Where a landlord says to a tenant, ‘You may leave,’ if you wish to take advantage of that permission, you must leave, not immediately, but with as great expedition as circumstances will permit. So if you consider that claim, you will have to consider the circumstances that existed at the time or subsequent to the time it is claimed that the release was given, of the permission was given to move out. The defendant claims he was delayed by reason of the peculiarity of the business and the difficulty in obtaining suitable quarters in which to move. Those circumstances have been narrated, and you will have to study the evidence to determine what the truth of these claims is. So much with regard to the claim of the plaintiff with regard to the $150 item.
“Now the second item: The plaintiff claims that the defendant occupied a smaller room. That room was not spoken of in the lease or in the other contract that existed at the time between the parties. It is claimed that that room was actually occupied by the defendant, and that claim is not denied, and for a period of some seven months. Now, with regard to that claim, the plaintiff claims that nothing ever was actually said except that it was understood that the defendant^ wanted that room, and the plaintiff claims that wanting the room and actually using it at a loss or detriment to the plaintiff constituted a contract between them, and carried with it an agreement on the part of the defendant to pay such a sum for rental as the room was reasonably worth. You have heard the testimony with regard to that, and you will have to consider that claim after a full consideration of the testimony. The defendant, with regard to that claim, says this: That he was prevented from using the room that he had actually hired, and prevented from using it by the plaintiff because of the noise made by the sewing machines that I have already referred to, and he says that the putting of him — that is, the defendant — into that room was an act on the part of the plaintiff for the plaintiff’s own benefit, and not for the benefit of the defendant at all, and therefore he claims that the claim of the plaintiff is unjust, and that there was no contract relations that ever existed, either by contemplation in law or agreement of the parties, for the leasing of that room. That becomes, of necessity, a disputed question of fact, and you will have to determine that. If you find that the plaintiff’s claim in that regard is established by the proofs, then the plaintiff is entitled to a fair and reasonable compensation for the use of that room for the period of seven months. The full claim that he makes is for $175. If you find that the defendant has established his theory with regard to that item, then the defendant, with regard to that item, is entitled to a verdict of no cause of action.”

We have examined the portion of the charge complained of, and are of opinion that there is no error therein, and that the court properly submitted to the jury the question whether the leaving of the premises under the circumstances was within a reasonable time. In our opinion this view finds support in the case of Kuschinsky v. Flanigan, 170 Mich. 245 (136 N. W. 362, 41 L. R. A. [N. S.] 430, Ann. Cas. 1914A, 1228), and cases there cited.

(5) In our opinion the charge of the court properly presented the questions involved to the jury, and the court did not err in refusing to give plaintiff’s requests to charge.

(6) We have examined the motion for a new trial, and are of opinion that the court did not err in refusing to grant the same. We are not prepared to say that the verdict was so clearly against the weight of the evidence as to demand interference on that ground.

(7) We think the court did not err in refusing to pérmit the bill of particulars to be amended. It should be borne in mind that this was the third trial of the case, and, in the exercise of its discretion, we find no error in the refusal of the court to permit the amendment. Unlike the case of Connell v. McNett, 109 Mich. 329 (67 N. W. 344), the proposed amendment was not justified by anything contained in the declaration or bill of particulars, and would operate as a surprise to the defendant.

We have considered all of the assignments of error, and are of the opinion that there is no reversible error in the record, and the judgment below is therefore affirmed.

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


author: Ostrander, J. MOORE, J.

text:
    WELLS v. ANN ARBOR RAILROAD CO.
    1. Carriers — Negligence—Stations—Passengers.
    Where defendant provided no approach to its station except along the track, and no lights or means of signaling its motor cars, and plaintiff, who understood the conditions existing, on an evening about 8:30, after dark, came to a small station to take the car home, signaling to it as it approached, and was struck when about half the length of the car had passed her, where, on cross-examination, she admitted that she was about two feet from the track and the car was shown to have extended 24 to 30 inches over the rail, her recovery was barred by contributory negligence, under a declaration which failed to count upon any theory of discovered negligence. Kuhn and Moore, JJ., dissenting.
    2. Same — Trial—Opening Statement.
    Since it is, as a rule, improper to argue the facts or the legal questions in a case in making the opening statement to the jury, the attorney for plaintiff erred in stating as a part of his opening, that the defendant owed to the public the responsibilities and duty of maintaining as an approach' to its station the portion of its track and roadway that the public habitually passed over to reach the station, and that the defendant owed to her the same degree of care which it owed to a passenger, and should ' Rave exercised the highest degree of care of which human foresight is capable, with other argument along similar lines.
    3. Same — Argument—Misconduct of Counsel.
    It was also improper and prejudicial to argue to the jury, in closing his case, which one of them would suffer plaintiff’s injury for a stated sum, or ask them what they would consider they ought to have if the wife of one of them was so injured.
    Error to Livingston; Miner, J.
    Submitted October 12, 1914.
    (Docket No. 70.)
    Decided January 4, 1915.
    Rehearing denied January 29, 1915:
    Case by Gertrude E. Wells against the Ann Arbor Railroad Company for personal injuries. Judgment, for plaintiff. Defendant brings error.
    Reversed; new trial denied.

      Gustavus Ohlinger and Shields & Shields (Alexander L. Smith, of counsel), for appellant.

      W. P. Van Winkle & Son and Odell Chapman, for appellee.
   Ostrander, J.

Upon the line of the defendant road, and a few miles north of Howell, on the east side of the track, is a platform made of cinders, confined on each of the four sides by timbers. It is 6 feet wide, east and west, and 15 feet long. There is no building, and stops there are made by gasoline cars only, and.' only upon signal or to discharge passengers. It is. called Preston. The line runs north and south here, crossing an east and west highway some 240 feet, north of the platform on a bridge elevated some IS feet above the highway, and the land south of the-highway adjoining the defendant’s right of way is called the Layton farm. The highway referred to is. fenced, and the right of way is fenced on both sides. The buildings on the Layton farm are west of the-right of way and about a quarter mile south of the platform at Preston. Members of the Layton household and some neighbors, for convenience, reached the platform by a journey through the fields of the farm to an opening in the right of way fence, coming; onto the right of way 810 feet south of the platform, traveling thence up the right of way.- The only other route from the Layton house is north on a highway to the east and west highway above mentioned, along the east and west highway east to the right ©f way, and down the right of way south to the platform. No means of access to the right of way from the highway had been provided. It was gained only by climbing from the highway to the elevation of the right of way or by climbing a fence or fences.. Having gained the right of way from either direction, no course to the platform was prepared or indicated by defendant, intending passengers using such portion of the right of way as suited convenience.

Plaintiff, a woman 71 years old, lived in Howell; her daughter lived on the Layton farm. Upon two occasions in 1913 prior to the one in question here, plaintiff had used the defendant’s gasoline motor car to visit her daughter, alighting at the Preston platform, and on her return taking passage at the platform. To and from the platform she used the defendant’s right of way and the route across the fields. In this manner she reached her daughter’s house on the morning of July 31, 1913, and in the evening left the house alone to return to Howell by the car due at Preston at.7:04 p. m. Later she was joined at the platform by her daughter, who had noticed that the car had not gone south. It was concluded that the plaintiff should return to the house and remain the night, and some 300 feet on the trip down the track to-the house had been accomplished when they heard the whistle of the approaching car. Turning, they observed the headlight of the car then crossing the bridge over the Shiawassee river 2,200 feet north of the platform. Retracing their steps, plaintiff and her daughter again approached the platform, walking rapidly, the car, or its light, being all of the time in full view, and plaintiff, as it neared her, making signals by waving her handkerchief as she walked. The daughter reached the platform and from there signaled the car, using her kitchen apron,' which was light brown in color. The car did not stop. Plaintiff claims to have been struck by it 80 feet south of the platform, after about half the car had passed her. The car stopped 352 feet south of the platform, to which place plaintiff and her daughter walked. The train crew offered to take her on board, carry her to the platform, the Layton farm gate, or to Howell. She declined to ride, and the car went on. This occurred about 8:30 p. m., and it was dark. Plaintiff’s description of what took place is, in part, as follows:

“Q. During the time it was coming straight on this stretch of track you could see the headlight all the while?

“A. All the while.

“Q. And did you watch it all the while?

“A. Yes.

“Q. At the same time you were walking rapidly, trying to get up to the platform?

“A. Yes. My daughter was a little spryer than myself, and she got to the platform some time before the car got there.

“Q. And all the time, as you were going on, you were watching and could see the car coming with the headlight?

A. Yes. When the car got near enough so I could signal I took my handkerchief in my hand and raised it as high as I could. I was still walking toward the platform. The car was coming on down very rapidly. I think the car was running faster than its usual rate of speed between stops. I kept on signaling for the car.

“Q. They didn’t stop for you?

“A. No.

“Q. Didn’t act as though they saw your signal at all?

“A. They didn’t — no, they didn’t act so.

“Q. And the car kept coming so far as you saw it at the same rate of speed, did it?

“A. Yes.

“Q. Didn’t it slacken up before it got to you?

“A. No.

“Q. Didn’t stop at all?

“A. No. I supposed it would, but it didn’t.

“Q. So you don’t think it slackened up a particle in answer to your signals before it got to you?

“A. No; it didn’t.

“Q. You are quite sure about that?

“A. I am. I am sure of that.

“Q. So it was running, when it got up to where you were, it was running as fast, you think, as it had been anywhere?

“A. I do.

“Q. After you saw it?

“A. Yes.

“Q. And it was running faster than the usual rate of speed was?

“A. Yes.

“Q. Where were you on the track when you signaled?

“A. I was on the outermost part of the embankment.

“Q. Which side of the rails?

“A. On the east side of the rails.

CSQ. With which hand were you signaling?

“A. With my right hand. As I was going towards the platform I was on the east side of the east rail, and I was signaling with my right hand, and I was going as rapidly as I could.

“Q. The headlight was burning, was it?

“A. Yes.

“Q. So you could see it plainly? It came along at a speed faster than usual and didn’t stop at all?

“A. No.

“Q. As it came to you? Are you quite sure they didn’t slacken up?

“A. I am.

“Q. There can be no doubt in your mind?

“A. No, not a particle.

“Q. Then as they came along there to you, you still had your right hand up signaling, didn’t you?

“A. Yes.

“Q. Did you keep your hand up signaling until after the car struck you?

“A. Until it struck me. I guess I was about three rods south of the platform when the car struck me. I don’t know how the car struck me. I was as far from the east rail as I could get, without going down the embankment — should think I was 8 feet from the east rail, but I am not sure. That was my position while I was signaling.

“Q. And then what part of the car hit you?

“A. I can’t tell you. I know — I knew nearly half of the car passed me while I stood there.

“Q. Before it struck you?

“A. Yes'.

“Q. Had the head of the car, the front of the car, got by you before you were struck?

“A. It had.

“Q. And what part of your body did the car first strike?

“A. I couldn’t tell you. It was done so suddenly I don’t know what happened.

“Q. You think something about the middle of the car struck you?

“A. I guess so.

“Q. In the excitement there did you step toward the car?

“A. No.

“Q. As it went by you?

“A. No.

“Q. How do you explain that the side of the car somewhere struck you, and not the front end of it?

“A. I can’t explain it.

“Q. You haven’t any explanation?

“A. No.

“Q. Can you figure it out in any way what it was that could have struck you there?

“A. No.

“Q. You are quite sure you didn’t step toward the car?

“A. I am; certainly I am.

“Q. Did you have your left hand extended toward the car?

“A. No; my left hand was— I had my handbag •on it, and it was in about this position.

“Q. Which side of your body was struck by the car, do you know?

“A. Why, it was the front of the body that was struck by the car, and the arms.

“Q. Was it your left arm and left hand, or your right arm and right hand that was first struck by the ■car?

A. I don’t know. I suppose it must have been this one [indicating to right arm] because that would have been likely to have been the one, but I guess they were both done very near together, in about the same instant.

“Q. As the car was coming down there, you stood facing it, didn’t you, you stood facing the north?

“A. Yes, I guess I faced the west a little, expecting they would stop.

“Q. The car was coming from the north?

“A. Yes.

“Q. So that you stood there by the rail, or eight feet away from it, as you say; your right shoulder would be away from the car, wouldn’t it, and your left one be closer to the car?

“A. Why, no; I think they were about the same. I think I was nearly facing the car.

“Q. You were nearly facing the car?

“A. Yes.

“Q. But which shoulder would be nearer the rail as you stood looking north facing the car?

“A. Why, I was facing west to look at the car, because the car was going south.

“Q. The car was coming from the north, wasn’t it?

“A. Yes, coming from the north.

“Q. So in order to be watching the car, as you stated, seeing the headlight all the while, you would have to be turned looking toward the north, wouldn’t you?

“A. No, looking to the west.

“Q. Then you would be facing the west?

“A. Yes.

“Q. Would you turn your head to look up the track to the north to see a car coming?

“A. No; I had been until the car was just to me, and then I faced the car.

“Q. Until the car got down, the headlight got right down to you, then you had been facing the north?

“A. I had been facing the north.

“Q. As it got right next to you, then you turned so you were facing the west, and facing the car as it went by you?

“A. Yes, sir.

“Q. And you don’t know which shoulder was struck first?

“A. I think it must have been this one, but they were done both so quickly [indicating to the right side].

* * * * $ $

“Q. Now, as you came along up the track, had you the whole distance walked as far away from the east rail of the track as you were?

“A. Yes.

“Q. So the whole distance up you had kept about eight feet outside of the track and parallel with it?

“A. Yes.

“Q. So that the walking there was reasonably good for eight feet?

“A. Yes.

“Q. East of the east rail of the track?

“A. Yes.

“Q. And you felt that it was probably safer and just as convenient walking as to walk between the rails, didn’t you?

“A. Yes.

“Q. So the roadbed for about eight feet on the side of the rail was reasonably level and pretty good walking all the way from the Layton gate up to the platform?

“A. Yes.

“Q. And where you were hit, it is your judgment that the side grading there for about eight feet or more east of the east rail was reasonably level, and so you could walk there all right?

“A. Yes.

“Q. You said something about some dirt, or ditch, or dirt, that was farther back and away from where you had been walking?

“A. Yes.

“Q. And wasn’t any obstruction at all to your walking?

“A. No.

“Q. And wasn’t in the way at all for your stepping out far enough to keep away from the car as it came along for at least eight feet through there?

“A. Yes.”

After a noon recess, plaintiff, on redirect examination, testified:

“Q. Mrs. Wells, you said something about eight feet from the car when it struck you. Since going to dinner, have you thought that testimony over?

“A. I have. I think I overestimated the distance; that that wasn’t eight feet, or I wouldn’t have been hit.

“Q. Has anybody explained to you that a car didn’t extend over the track more than some 24 to ,30 inches, something like that?

“A. They have.

“Q. Who was it did that?

“A. Mr. Chapman.

“Q. Learning that fact and knowing you got hit, how far do you think you must have been from the track, now?

“A. Probably two feet. I didn’t move toward the train or try to catch onto it. One-half the car had passed, I think, before I was hit. I had not moved towards the car at all. I was in a somewhat dazed mental condition by the shock. I presume it was about a quarter of an hour before I was fully possessed of my faculties. I presume I got into full possession of my faculties before I went down to Mrs. Lay-ton’s but I am not sure of that.”

As to the speed of the car, the testimony of the daughter agrees with that of the mother. The car did not slow down before it passed the station. It was so dark that each could distinguish the other’s form, but not her face. The daughter in going back to the platform traveled outside of and on the east side of the rails. The going there was good. The steps for entering the car were on the side, and perhaps half way down the car from the ends.

It is alleged in the declaration to have been the duty of defendant to build, erect, and maintain a safe and convenient way by which the general public and plaintiff could reach the said station and stopping place, to stop its motor car on signal at the usual stopping place, and permit plaintiff to take passage thereon, to light the premises with sufficient light in the nighttime so that persons taking the usual way to approach the station could be seen by the engineer, and so that signals to stop could be seen. As it was known to defendant, and consented to, that persons went to the station from the south along the rails or ties; that this was the only way to the station from the south; that defendant had provided no way to approach the station from any direction except over and along its tracks — it became and was the duty of defendant to use care and caution not to collide with any one approaching the station, and not to approach the station in a rapid manner, but to have its car under control, so that it could be stopped without running by the station, and to be on the lookout for persons approaching the station; it owed to plaintiff the particular duty when signaled not to run its car by the station, but to stop it at the usual place and not to run it 800 feet beyond and to the south of the station, colliding with plaintiff; it owed a duty to provide some mode of signaling in the dark. Breaches of these duties are alleged. At the conclusion of plaintiff’s case, defendant moved for a directed verdict in its favor and, the motion being denied, offered no testimony.

Appellant discusses the exceptions taken at the trial and the objections to the charge under the heads, Misconduct of Counsel, Errors in the Introduction of Evidence, Improper Argument to the Jury, Errors in Charging and in Refusing to Charge the Jury. One ground of the motion for a directed verdict was that plaintiff had shown herself to be guilty of negligence which contributed to her injury, another, which was also the ground of numerous objections to the testimony offered by plaintiff, was that the failure of defendant to maintain approaches to the platform was an immaterial fact. The failure of defendant to maintain approaches and to light the station are among the facts stated by plaintiff’s counsel in opening the case to the jury, in which opening statement the duty of the defendant in this behalf is asserted and plaintiff’s claimed rights in respect thereto were stated. Counsel said in part:

“Now, gentlemen, we call your attention and the court’s attention at this time to this proposition of law: That this way that they have discharged their passengers over and received them over was an approach. It was an approach, the public had a right to treat it as an approach, and they owed all the duties and responsibilities of an approach, and if they run negligently over that, they might as well have an approach, coming off here, and then run some death-killing machine over that, as to have run over this approach with a train. Now, gentlemen, the moment Mrs. Wells went through that gate, if your honor please, and onto this place, that was an approach, and had been used for an approach, and the moment, gentlemen of this jury, she became a passenger of the defendant, that the defendant owed her the duty of a passenger, and that is, gentlemen, in the management of their trains. It was their duty to manage them safely. They owed the highest degree of care of which human foresight, under all the circumstances, is capable. Now, I want to call your attention here so you will understand the case. This is not any complaint that the approaches were not sufficient. What we shall say about the approach is only for the purpose of showing you, gentlemen of the jury, that Mrs. Wells was justified in using this as an approach. The proximate cause of the injury, we contend, was the Ann Arbor Company running its train over this approach and not stopping when it was signaled at the proper place, but they ran over this approach when persons were using it to come to the place where it had invited them. When they did that, they violated that high duty that the law of our country imposes upon this railroad corporation when it. allows them to engage in this business which is for the purpose of profit. It says, In doing those things, you shall handle them safe. It doesn’t say ‘reasonably safe’ or ‘ordinary care,’ but it says ‘safe,’ and upon this proposition they told Mrs. Wells just as much as though they had handed her a paper.

“Mr. Shields-: I take exception to the argument.

“Mr. Chapman: I withdraw that. They owed her the duty when she stepped upon that place; they said to her, ‘This is safe;’ that ‘we will insure you that you do not get hurt by us on account of our negligently managing our trains.’ ”

The court advised the jury that it was the duty of the defendant to provide a reasonably safe and convenient means to reach the station, not having done which, plaintiff was rightfully upon the right of way; that it was defendant’s duty to keep a sufficient lookout to discover whether there were persons at the station signaling the car, and if it was so dark that such persons could not be seen, to slow the speed of the car so that it could stop it if necessary; that if they found that signals were given upon this occasion and defendant did not regard them and ran its car until it struck the plaintiff, and plaintiff was without negligence, she could recover. The jury was also advised that if plaintiff had time to get out of the way “after she had realized that the car was not going to stop at the station” she could not recover unless defendant was guilty of gross negligence. Thereafter the court instructed the jury upon the subject of gross negligence, applying the doctrine in this wise:

“And if said engineer did actually see Mrs. Layton [the daughter] when she was signaling the train to stop, as she has testified, and saw Mrs._ Wells approaching the station in the manner in which she has described, within a distance where, by the use of reasonable care, the engineer could have stopped his car, and he saw there was danger of running his car against plaintiff or so near her that the plaintiff might be struck, then said defendant would be guilty of gross negligence, and plaintiff would be entitled to recover, whether she was guilty of contributory negligence or not.”

In argument opposed to granting the motion for a directed verdict one of the counsel for plaintiff said upon the subject of gross negligence:

“In the first place, your honor, the defendant was guilty of gross negligence in not lighting its premises so the motormen could have seen persons congregating at the platform and signaling them. There is no presumption, by myself at least, that a motorman would be so malicious, so wanton, so calloused to every touch of humanity that he would want if he saw these women there signaling and saw them signaling at the regular passenger station, it can’t be that he is such a monster that he wouldn’t have stopped. He undoubtedly didn’t see them because the railroad company had neglected its duty to light the premises, and if your honor please, and if he couldn’t see them and he knew that was a place where people approached the crossing, he knew that a party had gone up, or the defendant knew that a party had gone up there that morning from Howell and would naturally want to take the train back to Howell that night, and if he couldn’t see whether people were congregating there to take it or not, he owed a duty to be careful, according to the circumstances, and approach that crossing with his train under control, and that is alleged as one of the duties he owed in these premises. They, are guilty of gross negligence, if your honor please, in not protecting their passenger, who was seeking to take passage upon the train, by proper conduct. First, by lights; second, by not approaching their station as they ought to; and, third, your honor, in colliding with the woman at all.”

No theory of discovered negligence of defendant is indicated by the declaration. These considerable references to the record are made to show how wide a range the testimony took and how many subjects were covered by the charge of the court, when in fact the real issue was a narrow one. No one disputes the right of plaintiff to go, as she did go, to a place upon the platform which was defendant’s place to stop its gasoline cars to take on and discharge passengers. If defendant had maintained a safe and convenient way from the north to the platform, the fact might have been shown, perhaps, as affecting the right of the plaintiff to be where she was, but as affecting the defendant’s negligence, it was immaterial, because it was not on account of the absence of such' a way that plaintiff was injured; she did not approach the platform from the north, and did approach it by the convenient way across the farm and from the south. Yet it is plain that considerable was made of the fact that approaches to this platform from both directions were not maintained. Again, considerable was made of the fact that the platform was not lighted and provided with some means of signaling a car. Reference to the time-table, Exhibit M, discovers that no car was scheduled to stop at Preston at an hour when, in the summer season, a light would be necessary or even convenient. It is assumed that these matters probably affected the jury, since it is clear that the injury was the result of plaintiff’s carelessness.

Assuming that defendant was negligent in any, or in all, of the respects alleged in the declaration, the injury cannot be reasonably ascribed to its negligence. Plaintiff knew the car was late; that the night was dark; that the platform was not lighted; that no means of signaling the car had been provided. She tried, properly enough, to signal the car. She wanted to go home. But it is obvious that she had no occasion to place herself in a position of danger, and equally obvious that the conditions, as they appeared to her, did not invite her into a place' of danger. She was in no danger except from the moving car. There was every evidence that it would not stop at the platform. If the motorman saw the signals, and saw her, but, for any reason had determined not to stop at this station, he could not suppose that she would stand, or walk, so near the car as to be struck by it. Unfor.tunate as the affair was, it is clear that plaintiff’s want of ordinary care contributed, at least, to the result. For this reason the court should have granted the motion for a directed verdict.

Errors were committed by counsel for plaintiff in making the opening statement to the jury and in the closing argument. The rule was violated in opening the case to the jury. A proper opening statement to a jury is neither an argument of the facts nor a discussion of the law of the case.

A proper closing argument does not permit counsel to ask the jury which one of them would accept the injury plaintiff is alleged to have suffered for a stated sum of money, or, in a case like this one, to ask a juryman what he would think it worth if plaintiff was his wife. Although admonished by the court, counsel repeated and elaborated such appeals to the jury.

Counsel, apparently in good faith, defends his action in closing the case, and this is the reason for doing more than merely advert to the subject here. He directs our attention to the opinion in Detroit, etc., R. Co. v. Van Steinburg, 17 Mich. 99, 119, where it is said, in effect, that in determining whether an injured person did or did not act prudently, in view of circumstances presented ' to him, the jury must place themselves in the position of the injured person and examine the circumstances as, at the time, they were presented to him. This is a long ways from the position that, in estimating the damages which should be awarded for a particular injury, the jury may fix such sum as they would be willing to accept and suffer the injury, or such sum as they would accept if a wife or other member of the family was so injured. Counsel should not ask a jury to adopt this rule for awarding damages because it is not the true rule. If a court were to advise a jury that such a rule should be followed, the error would be immediately apparent. See, among other cases holding that the argument was reversible error, Morrison v. Carpenter, 179 Mich. 207 (146 N. W. 106); Hughes v. City of Detroit, 161 Mich. 288 (126 N. W. 214, 137 Am. St. Rep. 504).

No new trial will be granted.

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

MOORE, J.

I think the questions involved were for the jury, and that, except for the argument of counsel, the case should be affirmed, but because of the argument it should be reversed.

.Kuhn, J., concurred with Moore, J.


author: Brooke, C. J. Kuhn, J.

text:
    BEAGLE v. PERE MARQUETTE RAILROAD CO.
    1. Railroads — Contributory Negligence — Personal Injuries— Crossings — Duty to Look and Listen.
    Plaintiff was a woman 64 years of age who had resided immediately adjoining defendant’s track near a crossing. She was familiar With the crossing and custom of the trains which passed there. A freight engine usually detached itself from its train and stood near the crossing until one of defendant’s passenger trains had passed, about the middle of the day. Approaching the crossing while the passenger train stood upon and across it, she received a signal from the fireman of the freight engine to pass across the track in front of the standing engine. As she did so, she perceived a passenger on the train that was just starting on the main track making some signal which she misinterpreted and stepped backward in front of the engine which plaintiff claimed started to move without ringing the bell or signaling. She failed to look and did not observe that the engine had started and was struck by it. Held, that it was the plaintiff’s duty to observe the surrounding situation before she returned upon the track which she had crossed and that her contributory negligence barred a recovery.

    2. Same — General Rule.
    Before a pedestrian is entitled to enter upon a railroad track or similar place of danger, or attempts to remain upon the track, it is his duty to assure himself that it is safe so to do, and failure to take this necessary precaution is contributory negligence per se.

    Kuhn, Bird, and Moore, JJ., dissenting.
    Error to Genesee; Wisner, J.
    Submitted June 12, 1914.
    (Docket No. 39.)
    Decided January 4, 1915.
    Rehearing denied April 28, 1915.

      Case by May Beagle against the Pere Marquette Railroad Company for personal injuries. Judgment for plaintiff. Defendant brings error.
    Reversed.

      Bills, Parker, Shields & Brown (Carton, Bray & Stewart, of counsel), for appellant.

      Henry B. Bathbone and Homer J. McBride, for appellee.

       On the question whether the failure to give customary signals at a railroad crossing excuses the nonperformance of the duty to look and listen, see note in 3 L. R. A. (N. S.) 391.

   Brooke, C. J.

The following facts are undisputed on this record: The plaintiff, a woman in the prime of life and in the full possession of all her faculties, had lived immediately adjoining the crossing at which she was injured for .a period of a year and a half. She was familiar with the crossing and had occasion to use it with great frequency. She knew the number of tracks crossing the street at that point and their uses. The accident occurred in the middle of the day, and therefore in broad daylight. She knew that the freight engine, which had detached itself from its train and stood upon the crossing a few feet (she says 10) south of the sidewalk upon which she was proceeding must wait in that position until the south-bound passenger train had cleared the main track. Her intimate knowledge of the movements of the passenger train and the engine are indicated by the following testimony:

“Q. You would frequently see trains, a freight train, pull in on the side track, the same as this one did?

“A. Yes, sir; I have.

“Q. At this time of day?

“A. Yes, sir.

“Q. You have seen the engine come up near Second street and stop?

“A. Yes, sir.

“Q. That would be right opposite your window, wouldn’t it?

“A. Yes, sir.

“Q. And wait for that passenger train to go by?

“A. A great many times.

UQ. A great many times?

“A. Yes, sir.

“Q. This same passenger train you speak of you .saw on this day?

“A. That 1:05 train.

“Q. Then the engine would go up on the side track and over onto the main line and take water?

“A. Yes, sir.

“Q. Then get back and couple on its train and go on?

“A. Yes, sir.

“Q. And that happened up there on this 1:05 train time, it would always stand there until the 1:05 train cleared on the main track?

“A. Yes, sir.

“Q. That was the regular movement of trains there?

“A. Yes, sir.

“Q. You knew, also, that when the 1:05 passenger train pulled by the crossing this engine always started up?

“A. Always.”

The south-bound passenger train stood at the station and obstructed her passage over the main, or easterly, track. Approaching from the west, she crossed the.side track and drew near to the passing track upon which the engine, which had been detached from the freight train, stood a little south of the walk she was traversing. The distance between the side track and the passing track is 19 feet. The distance Between the passing track and the main track, upon which the passenger train stood, is 31 feet. Nearing the engine, she testifies that she received a signal from the fireman inviting her to cross in front of the engine which was not in motion. This she started to do, and had nearly crossed the track, which is only 4 feet 8% inches wide, when, according to her testimony, she noticed a person on the passenger train, which was pulling out, make a motion. This motion she describes clearly as a beckoning motion. But instead of stepping forward in obedience to the motion, through some misinterpretation, she stepped backward and remained standing an instant or two upon the passing track immediately in front of the engine. She testifies clearly that had she continued going forward, instead of stepping backwards, she would have reached a place of safety on the strip 31 feet wide between the two tracks. She testifies equally clearly that she stepped back upon the passing track and in front of the engine without looking to see whether or not the engine remained stationary. In order to clearly demonstrate this statement of fact, I subjoin an excerpt from her testimony given on cross-examination :

“Q. You knew this engine or this passenger train could not strike you unless you were on the track, didn’t you, Mrs. Beagle?

“A. No answer.

“Q. What; didn’t you know that?

“A. Why, I knew it; yes, sir.

“Q. You knew if you went across the second track, between that and the third track, that you would be in a place of perfect safety, didn’t you?

“A. I did not think of'it.

“Q. Weren’t thinking of your safety at that time?

“A. Why, certainly I was thinking of my safety; that is why I went across when the fireman motioned to go across. I thought he was placing me in a place of safety.

“Q. What say?

“A. I supposed he was placing me in a place of safety.

“Q. You knew where a safe place was without his telling you?

“A. I hád not time to get clear over when I was motioned to step back again.

“Q. Why not? Well, you did stop and step back?

“A. Certainly, on the second crossroad there.

“Q. Now, you knew, did you not, that right in front of you, if you had continued going ahead instead of stepping back there, that the place was perfectly safe for you?

“A. Yes, if I went ahead.

“Q. You knew that?

“A. Yes.

“Q. Now, you appreciated it at the time?

A. Yes, but I thought you meant—

“Q. Yes?

“Mr. Rathbone: I want her to complete her answer. I submit the witness is entitled to finish. What was that, Mrs. Beagle?

“Q. Meant what?

“A. Meant the motion I got from the passenger train I was to step back, go back or something, some danger or something I did not know what; that is all I know about it.

“Q. You knew that right in front of you, did you, there was no danger?

“A. Well, I did not know what it meant. If I had I would not have stepped back into danger; I was not there for that purpose.

“Q. I appreciate that, but, Mrs. Beagle, didn’t you know where a safe place was on that crossing at that time?

“A. If I had got over on that side—

“Q. Answer my question.

“A. Yes, that would be a safe place.

“Q. You knew it at the time, didn’t you?

“A. Yes, I knew it at the time.

“Q. That answers the question. We have finally got that settled. Then if you had gone into a place that you knew was safe you would not have been injured, would you?

“A. No, if I went over there.

“Q. And the fireman had nothing to do with your stopping the second time, did he?

“A. Not the second time.

“Q. What?

“A. No, I could not say as he did.

“Q. And you were going to step into a place of safety?

“A. Yes, sir.

“Q. Had plenty of time to do it, did you not?

“A. Yes, sir; if I proceeded.

“Q. Yes, yes, if you proceeded, that is right.

“A. No answer.

(‘Q. Instead of that, you misinterpreted the warning that was given you by somebody on the passenger train?

“A. Yes, sir.

“Q. Now, this was broad daylight?

“A. Yes, sir.

“Q. Nothing to prevent your seeing this engine move towards you if you had looked any time?

“A. If I looked any time?

“Q. What?

“A. When I looked up it was coming onto me.

“Q. There was nothing to have prevented you from, seeing it if you had looked any time, was there?

“A. No.

“Q. No. You knew that as soon as that passenger train came along that that engine was going to start up?

“Mr. Rathbone: I object to it as having been asked and answered a good many times already, if the court please.

“The Court: I think it has been asked once or twice.

“Mr. Bray: I am asking it in a different connection, that is all.

“The Court: Very well, she may answer it.

“Q. Repeated.

“A. I did not think anything about its starting right away.

“Q. You have not answered the question. I would like to have you answer the question.

“A. I didn’t know it would start right away.

“Q. You had seen it a great many times do that same thing, have you not?

“A. Not exactly the same thing.

“Q. But you knew it was standing there waiting for the passenger to clear the track?

“A. Certainly I did.

“Q. You knew it was going to start up some time very close to the time that that passenger train went by?

“A. I did not know how close; I presume it would start up because it was uncoupled.

“Q. You knew it was there for the purpose of waiting for that passenger train to clear the track?

“A. Yes, sir; I did.”

From these facts it appears conclusively that, assuming the direction of the fireman to have been given as claimed by her, she was not led into a position of danger thereby. Had she followed the instruction, she would have had ample time to reach a place of safety. Her failure to leave the track as she might have done, without haste, in obedience to that instruction, or her re-entry upon it without assuring herself that it was safe to do so, I believe, under the decisions of this court, were such acts as to compel us to say that she was guilty of contributory negligence as a matter of law. In taking the one or two steps backward as she said she did, and remaining standing upon the track without assuring herself that it was safe to do so, she certainly failed to use the most ordinary and necessary precaution for her own safety. The decisions of this court are very numerous to the effect that entering or remaining upon a railway track in a place of known danger, without first assuring oneself that it is safe to do so, is negligence as a matter of law. The question of defendant’s negligence is therefore, in my opinion, unimportant. Whether the bell was rung or not, it would still be plaintiff’s duty to use reasonable care for the protection of her own life and limb, and the warning which the ringing of the bell would have conveyed to her was one which she already had in the knowledge that the engine would start up immediately after the passenger train pulled out, and it appears to have been in motion before she was struck. The language used by this court in the case of Boutell v. Railroad Co., 133 Mich. 486 (95 N. W. 568), is peculiarly pertinent:

“He knew that the train was standing there when he left the power house, that it stopped only long enough to accommodate travelers in getting off and on, and that it was liable to start up any moment. The noise alone, even though the bell was not rung, was a sufficient warning to him. It was his duty to both listen and look. A turn of the head, which would require but a fraction of a second, would have shown him the train coming in close proximity to him. Instead of doing this, he stepped across the rail onto the track directly in front of the engine, which was approaching only a few feet from him. * * * A railroad track itself is notice of danger. This being so, it is the duty of every one attempting to cross to use ordinary precautions for his own safety.”

See, also, Brinker v. Railroad Co., 121 Mich. 288 (80 N. W. 28); and Spaven v. Railroad Co., 130 Mich. 579 (90 N. W. 325).

It is said that the plaintiff had the right to rely upon the custom of the defendant to ring the bell. The exact effect of the defendant’s negligence upon the duty of the plaintiff in the premises is well pointed out in Ellis v. Railroad Co., 169 Mass. 600 (48 N. E. 839), where it is said:

“While the raising of the gates justified the plaintiff in attempting to cross when he did, and while that fact, and the facts that no whistle was sounded and no bell was rung, are to be taken into consideration on the question of how much he must himself look and observe as he makes his way across, these circumstances do not excuse him from looking and listening and taking thought for his own safety. He cannot rely wholly upon them, and cannot recover without showing more, as to his own conduct, than that he so relied. * * * We are of opinion that, as matter of law, there was no evidence from which it could be found that the plaintiff himself exercised due care, and the verdict for defendant was rightly ordered.”

I am of opinion that the motion made by defendant for a directed verdict on the ground that plaintiff was guilty of contributory negligence as a matter of law should have been granted.

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

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

Kuhn, J.

(dissenting). This is an action for injuries received in a railway crossing accident in the city of Flint at the intersection of Second street with the defendant’s line of railway. At this point there are three tracks, the one farthest to the east being the main track, the one in the middle, about 24 feet distant, being the one on which the accident occurred.

On December 2, 1911, at about 1 o’clock p. m., a freight engine was standing across Second street on the middle track, its pilot about 10 feet south of the sidewalk on the north side of Second street, waiting for the regular passenger train to pass so that it might go over to the main track and take water. The plaintiff, who lives near the crossing and had crossed the tracks there many times, was going along Second street and walked onto the track on which the engine stood. It is her claim, supported by her testimony, that the fireman on this engine motioned for her to go ahead, and that as she was crossing the track some one on the passenger train, which was just then passing on the main track, motioned to her. Interpreting this as a warning, she stopped and stepped back, then looked around and saw the freight engine moving toward her, without ringing a bell or giving any other warning, and almost upon her, and before she could get clear of the track her left foot was caught and severed. It is further her claim, supported by testimony of other witnesses, that it was the custom of the defendant for many years to ring bells on its engines standing on or close to Second street before starting, to warn persons who were passing in front of such engines, and that she knew of this custom and relied upon it on this occasion in crossing as she did.

The case being submitted to a jury, a verdict in the sum of $14,000 was found for the plaintiff, and judgment was entered thereon. A motion for a new trial made by defendant was refused. The case being removed to this court by writ of error, 164 assignments of error are urged. The following are the reasons urged by defendant’s counsel for a reversal of the case:

“(1) The plaintiff was guilty of contributory negligence as a matter of law.

“(2) The variance between the pleadings and the proofs.

“(3) The negligence of thé defendant, if any, was not the proximate cause of the accident.

“(4) If the defendant was guilty of any negligence, the plaintiff was guilty of concurrent negligence which contributed to her-injuries.

“(5) The verdict was against the weight of the evidence.

“(6) The verdict was excessive.

“(7) The suit was prosecuted in violation of the law.

“(8) The court erred in the charge as given.

“(9) The court erred in the admission and exclusion of testimony.

“(10) The improper argument of plaintiff’s counsel to the jury.”

The principal question argued in the briefs is whether the plaintiff was guilty of contributory negligence as a matter of law. It is claimed by defendant and testified to by witnesses that she stopped on the track and waited there for the passenger train to pass, and in doing this that she selected a dangerous position when there was sufficient room for her to have stopped on either side of the track; and also that she knew from experience that the engine would start up when the passenger train went by.

The question of plaintiffs contributory negligence, Tinder the decisions of this court, should be submitted to the jury when the testimony is conflicting, or when -candid and intelligent men might reach different conclusions upon the question. Becker v. Railway Co., 121 Mich. 580 (80 N. W. 581); Haines v. Railway Co., 129 Mich. 475 (89 N. W. 349); Welch v. Railroad Co., 147 Mich. 207 (110 N. W. 1069); Amanta v. Railroad Co., 177 Mich. 280 (143 N. W. 76). See, also, Atchison, etc., R. Co. v. Wilkie, 77 Kan. 791 (90 Pac. 775, 11 L. R. A. [N. S.] 963, and note, 127 Am. St. Rep. 464, 15 Am. & Eng. Ann. Cas. 731), and Monroe v. Railway Co., 129 Mich. 309 (88 N. W. 888).

The testimony of the plaintiff was that, relying ■upon- the custom of the defendant to give warning, and because of the invitation from defendant’s fireman to cross, she thought it was safe for her to do so.. Whether she was justified in relying upon this custom, in view of her admitted knowledge that the freight engine usually started up at about the time the passenger train went by, it seems to us to be a question for the jury. Whether or not her act in crossing was that of an ordinarily prudent person, tinder all the circumstances, was a question for them to determine.

In McWilliams v. Mills Co., 31 Mich. 274, it was said, in a case not dissimilar to the instant case:

“A passenger along the sidewalk of a public street has a right to expect some warning before any sudden movement of this kind, and there should be very plain proof of negligence to bind him under such circumstances.”

And in Davis v. Railroad Co., 142 Mich. 382 (105 N. W. 877), where the deceased stood on the track with his back to a standing caboose for several seconds before it was backed down upon him without warning, and the trial court directed a verdict on the ground of contributory negligence, the judgment was reversed on the ground that the question of contributory negligence should have been submitted to the jury. The court said:

“A passenger is not required by the law to hurry across a track in front of a car standing detached in a public highway, with nothing in his sight to indicate its immediate movement. * * * A delay for a little time, when acquaintances meet upon a sidewalk, to talk, is not per se negligence under such circumstances. Parties have the right to assume that the railway company will give them warning at such places before moving the car in their direction.”

Error is assigned because of the refusal of the trial judge to allow the defendant to amend its plea as provided in section 1139, 1 Comp. Laws (5 How. Stat. [2d Ed.] § 12557), so that it might be shown that the demand upon which this action was founded had been bought and sold or received for prosecution contrary to law, and in violation of the statute (section 1136, 1 Comp. Laws [5 How. Stat. (2d Ed.) § 12554]). It is claimed that plaintiff’s attorney and the plaintiff made an agreement by which the attorney was to advance funds for the purpose of carrying on the litigation, and that this practice is a species of champerty and therefore illegal. This question is decided adversely to defendant’s contention in the recent case of Lehman v. Geer, 180 Mich. 362 (147 N. W. 628).

A reading of this record does not convince us that the verdict is so against the overwhelming weight of the evidence as to warrant us in overruling the decision of the trial judge in refusing a new trial on that ground. See Gardiner v. Courtright, 165 Mich. 54 (130 N. W. 322), and cases cited therein.

We are not impressed that the verdict was execessive. The plaintiff, of the age of 44 years, prior to the accident, was a healthy and strong woman, doing the housework for a family of six. After the accident her left leg was amputated four or five inches above the knee. She was in the hospital ten weeks, where she was operated on three times. She has suffered great pain, and at the time of the trial she was still suffering pain, and was unable to wear an artificial limb because of her inability to control it. She is able to do but little housework, and has become a nervous woman, having difficulty in sleeping.

In the case of Fike v. Railroad Co., 174 Mich. 167 (140 N. W. 592), where a verdict of $25,000 was reduced by this court to $17,000, the plaintiff lost her left foot, the amputation being above the ankle, and her left arm was amputated about the middle third, and there was a scalp wound and shock to the nervous system. Adopting the rule announced in that casé, that it is the object of the law to compensate the plaintiff for all the injury sustained and not to provide the plaintiff with a competency or fortune, considering the permanent crippled condition of the plaintiff, her great suffering in mind and body, the destruction of her ability to labor, we are not prepared to say that the verdict in the instant case should be disturbed on the ground of its being excessive.

The other claims of error relied upon by defendant have had our careful consideration. We are satisfied that the case was submitted to the jury in a proper charge, clearly outlining the questions in issue, and that no prejudicial error was committed on the trial in the rulings of the court or argument of counsel.

The judgment should be affirmed.

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