text:
    ENSLEY v. DETROIT UNITED RAILWAY.
    1. Electric Railways — Contributory Negligence — Killing Stock.
    The owner of a cow which was killed by an electric car while being driven along the highway was not guilty of contributory negligence, where it appears that he kept constantly looking-up the track, and did not see the car until it was too late to prevent the accident. .
    2. Same — Evidence—Res Gestas.
    In an action against an electric railway for killing a cow, the statement of the motorman at the time of the accident, and before he left the car, that the car “ is running without a headlight,” is admissible as part of the res gestee. Dompier v. Lewis, 131 Mich. 144, distinguished.

      3. Same — Negligence—Headlights.
    Under a franchise requiring an electric railway, operating its line in the highway, to keep its cars “properly lighted in the night-time, whether standing or running ” (and also without regard to the franchise), the company should furnish such a light as will give a person traveling in the highway reasonable notice of the approach qf a car.
    Error to Oakland; Smith, J.
    Submitted April 23, 1903.
    (Docket No. 42.)
    Decided July 14, 1903.
    Case by Philo Ensley and Ransom Cole against the Detroit United Railway for the negligent killing of certain stock. From a judgment for plaintiffs, defendant brings -error.'
    Affirmed.

      Brennan, Donnelly & Van De Mark and Frank F.. Jenlcins, for appellant.

      'Kinsman & Arnold, for appellees.
   Montgomery, J.

The plaintiffs were joint owners of a cow which was of the value of $45, and which has furnished the subject-matter of this litigation. There is no question that the cow was killed by coming in collision with a motor car.on the line of defendant’s road. As the-contention is made that there was no case for the jury, we quote at. some length from the testimony of plaintiff Cole:

“ Last summer, August 22d, I resided on Philo Ensley’s farm, about one-half mile south of the village of Oxford. I resided upon his farm as a tenant. I had one-half interest in the stock and crops on the farm. I kept 12 head of cows. I can recollect this 22d day of August last. I got the cattle up for the purpose of milking them at 3 o’clock in the afternoon, because I had to furnish milk for the milkmen. The weather was cloudy and threatened to-rain, and, after milking the cows, I fed them their corn in the stable on account of rain. About 8 o’clock in the evening I turned the cows out. The barn is situated on the east side of the highway, and the electric railway is situated in the center of the highway, and the house is on the west side of the highway. The pasture in which I turned the cows is on the east side of the highway. That evening about 8 o’clock I had gone across to the house to feed the hogs, and, after I got the hogs fed, I thought I would turn the cows out; and I came across and looked up- and down, and I saw no car coming from any direction, and I went and opened the gate that goes to the lane, so-that, when I got there, they would go right in, providing I had to crowd them in. I let them out, and kept constantly looking up the track for a car, and I saw no car coming then from either direction. Heretofore it has been the custom of the company to carry a headlight. I never noticed the car come down at night without a headlight, either way. I could see north towards the village clear about eight-tenths of a mile. I saw no signs of any car. I saw no signs of any light or any car at all.
Q. After looking carefully, you looked down the road at the same time ?
“A. Yes, sir.
Q. Now, after looking both ways, what did you do?
“A. I turned the cows out.
“ Q. What did you do with them ?
‘A. I turned them out, and drove them right into the pasture, — that is, into the lane, — and just before I got to the lane gate (the cows were then, well, perhaps 20 feet of the lane gate) I looked around to see if any car was coming, and there was one right onto me, within three or four rods; and I rushed right across the track (I was on the west side of the track when I saw the car coming, and I rushed right across the track), and there was one of the cows started on a run down the track, and I got in around those, rushed them through the gate, and shut the gate. As soon as I got them in, the car was by me. The car was within three or four rods of me when I saw it first. I drove the cows in and shut the gate. I could hardly keep the cows from the gate while I shut it. It would have been impossible for me to have got around that cow. This car that came down had no headlight that evening. It had no light in front of it at all. It was quite dark, rather dark and cloudy, and it was about 8 o’clock. It was about 325 feet south of there that the cow was hit. That is the distance where they rolled the cow off the track.”

It is insisted that this testimony shows plaintiff to have been guilty of contributory negligence. In support of this contention it is said:

“Neither on direct nor cross examination did Mr. Cole testify that he at any time looked for the car after leaving the barnyard gate until the cows were within 20 feet of the lane gate, and part of them way over on the west side of the track.”

Counsel must have overlooked the following, appearing in the direct examination of the witness:

“I let them out, and kept constantly looking up the track for a car, and I saw no car coming then from either direction.”

As he was driving the cattle down the track, where he had a plain view, it would seem that, if he constantly kept looking up the track (from which direction the car in question came), he did about all that could be expected.

Objection is made to the admission of the testimony of a passenger as to a statement made by the motorman at the time of the collision. He testified under objection that, when the car struck the cow, witness, the conductor, and the motorman got out of the car, and that while the motorman was getting out of the car, before he got out, he' said, “ There, that is running without a headlight.” This was admitted as a part of the res gestee, and we think properly. An effort is made to liken the case to Dompier v. Lewis, 131 Mich. 144 (91 N. W. 152), but the case is clearly distinguishable. In this case the exclamation was made at the very time of the injury, and related to the very fact; in the former case it was in the nature of a narrative of a past event, and did not relate to the very fact of the injury. The question put to the witness in the present case was somewhat broader than the answer itself, and in this holding we confine our decision to the case as disclosed by the answer of the witness.

The principal complaint in the case relates to the charge of the court on the subject of lights. The defendant’s franchise contract contained the following:

‘ ‘ That the cars of said railway shall be of modern type, propelled by electricity or any other motive power, except steam, which is or may become suitable for railway purposes, and must be properly lighted in the night-time, whether standing or running.”

The circuit judge charged the jury upon this subject as follows:

“ The franchise for the township of Oxford, where the accident occurred, contains the provision that cars must be properly lighted in the night-time, whether standing or running. Now, what do the words ‘properly lighted’ mean? They do not mean necessarily that the car be equipped with a headlight, or, if with a headlight, that it should be an electric headlight rather than one provided or furnished by the use of oil. The question of whether it was light or dark must be carefully considered in determining whether the car was properly and sufficiently lighted or not. If, in fact, it was light enough so that the plaintiff Cole, in exercising due diligence to protect his own interests, could have seen the approach of the car a considerable distance, then the question of lighting the car would be of no importance. Any light or no light would be sufficient in that event-.
“Now, regardless of the franchise, and under the general liability of the defendant’s company for negligence, it would be liable for any failure to use reasonable care in the lighting of its car in front, so as to give a fair and reasonable notice to persons desiring to use the highway next to the track. That would not necessarily mean that it should use a headlight, any more than the language used in the franchise; but it would mean that, if the darkness was such that the plaintiff Cole could not otherwise see its approach, then the car should be so lighted as to give the plaintiff fair and reasonable notice of its approach if he looked.
“Now, gentlemen, I leave that whole question to you, .and say to you that, under the peculiar wording of that franchise, the liability for violation of the franchise does not differ greatly from what the ordinary liability of the' defendant would be under the law of negligence. My construction of that language would be that there should be such a light in front as would give the plaintiff reasonable and fair notice of its approach had he looked. Now, gentlemen, it is for you to say whether the lights that evening, as described, are reasonably or properly within that definition or not. It is the claim of the plaintiffs that, in order to constitute a reasonable and fair notice, or to comply with the franchise, it is necessary to have a headlight.
“Now, gentlemen, if it be true that the light from the window that has been described — from the bull’s-eye light and from the windows — would give the plaintiff Cole fair and reasonable notice of its approach, then I say to you that it would not be negligence not to have a headlight; but if, under all the circumstances, you determine that those lights were not and did not give the plaintiff Cole, or would not give him, fair and reasonable notice of its approach, then you might find that the headlight was necessary to comply with the ordinances, to relieve them from liability for negligence. That would depend, gentlemen, on what you determine from the evidence. What I mean- to say is, gentlemen, that the failure to carry a headlight is not of itself, standing alone, full proof of negligence. It might be negligence, and it might not, depending on what other lights were in front of the car.”

We think this instruction fairly presented the question to the jury. See Rascher v. Railway Co., 90 Mich. 413 (51 N. W. 463, 30 Am. St. Rep. 447); McGee v. Railway Co., 102 Mich. 107 (60 N. W. 293, 26 L. R. A. 300, 47 Am. St. Rep. 507).

The record presents no other questions meriting discussion.

The judgment is affirmed.

The other Justices concurred.


source: Caselaw Access Project

author: Moore, J.

license: Public Domain

text:
    SHERRARD v. CUDNEY.
    1. Boundaries — Adverse Possession — Admissions.
    The verbal admissions of a defendant concerning a boundary-are admissible; but a line established by mutual agreement, and acquiescence and continuous occupancy for more than 20 years, cannot be changed by such admissions without a writing.
    2. Evidence — Record op Survey.
    A survey recorded in the office of the county surveyor under 1 Comp. Laws, § 2622, is competent evidence.
    3. Adverse Possession — Timber Land — Character op Occupancy.
    In an action of trespass, where defendant claimed ownership by adverse possession up to a certain fence, — that he had cultivated a portion of the land, and occupied the remainder as a wood lot, — a charge that his possession must have been pedis positio, open, and subject to the observation of any one around in the vicinity, such that every person could understand it, that it must be based upon something more than silent permission of improvements, and that it must be based upon facts which showed in explicit terms a state of facts that would satisfy the legal definition, was erroneous, as tending to give the jury the impression that more was required of defendant than is necessary under the law.

      Error to Shiawassee; Smith, J.
    Submitted April 24, 1903.
    (Docket No. 51.)
    Decided July 14, 1903.
    Trespass by William Sherrard against L. G. Cudney for cutting timber. Erom a judgment for plaintiff, defendant brings error.
    Reversed.

      Watson & Chapman and W. J. Parker, for appellant.

      John T. McCurdy, for appellee.
   Moore, J.

This is an action by plaintiff for trespass for the cutting of certain trees on the south half of the northwest quarter of section 2 in the township of Caledonia, owned by the plaintiff. Defendant purchased the land adjoining plaintiff on the south, receiving his deed March 14, 1880. He claimed that on February 23, 1880, he cut a line through, and built a brush fence as establishing the line between his farm and the one now owned by the plaintiff; that he has been in the open, visible, and adverse possession of the land on the south up to the fence for more than 20 years; that 13 years ago last February he built a rail fence in the place of the brush fence, and has cultivated fields right up to this fence, on the east part of the farm, and occupied the balance as a wood lot. It is also the claim of defendant that the fence is on the true line; that, when the brush fence .was built, the surveyor’s stake was found at the east end, and the fence was built west from that stake to a surveyor’s stake at the west end. It is the plaintiff’s claim that the fence was not on the true line, but at its west end was about 28 feet too far north, as shown by a survey made in 1895, and that the trees cut were north of the true line and on plaintiff’s land, though south of the fence; and that defendant had not acquired title by adverse possession.

Judging from the record, the trial was not a very orderly one. There was more talk between counsel, and between the judge and counsel, than was seemly. Many assignments of error are made. We have considered them all, but shall not discuss them all.

Error is assigned as to the admissions made by defendant when the survey was made in 1895. Mr. Cudney was one of the ohainmen who participated in making the survey. He is also a party to this litigation, and for that reason we-think the testimony competent; but he was entitled to an instruction as to the effect of what he said, according to the rule laid down in Burns v. Martin, 45 Mich. 22 (7 N. W. 219).

Error is assigned as to the admission of a survey recorded in the office of the county surveyor, said to have been made by Lyman Mason in 1879. It is claimed on the part of the plaintiff that the diagram on page 236 and the notes on page- 237 constitute Mr. Mason’s survey. Upon page 236 there are entries relating to a survey made in 1895, which of course could not have been part of the survey made by Mr. Mason. Counsel says this portion of the exhibit was not offered in evidence. With these entries eliminated, if the two pages are shown to be connected together as the recorded survey made by Mr. Mason, I think it competent to admit them under section 619, 1 How. Stat.

Error is assigned upon the refusal of the judge to give defendant’s requests to charge, and upon the charge as made. We have already referred to one instruction which the defendant was entitled to have given to the j ury in case he had acquired title by adverse possession. We have already said the defendant claims he occupied up to the fence, claiming to be owner of all the land south of the fence; that the east portion was cultivated to the fence; and that west of the cultivated portion the land was used as a timber lot in the way such a lot is ordinarily used by the farmer.

Among other things, the trial judge instructed the jury as follows:

“Now, possession, as I have stated to you, must have been actual; that is, possession pedis positio, — the placing of the foot. He must have had control, been on it, and had possession of it continuously; that is, he could not have possession for one year, quit a year, go on a year, and call that continuous possession. That would not be continuous. Visible acts of the possessors must be open, not clandestine, but a subject of observation to any one around in the vicinity. It must be notorious. It must be such that every person could understand it; nothing secret about it; open, notorious possession. It must be distinct; that is, it must mark out the boundaries of the land claimed to be possessed distinctly, so there can’t be any dispute about what he possesses. To illustrate that: A highway is sometimes acquired by user, although not regularly laid out. If a highway is laid out in this State, it is laid out to a certain width, I think 66 feet wide, — four rods; and, if the highway is a highway by being laid out, then it would be that width or the width at which it was laid out, whether it was used or not; but, if it becomes a highway by user, then only the part of the ground along there which has been used by the public as a highway becomes a highway by user, whether it is crooked or straight.. If there is a fence along the edge of it, or if to where we claim the highway, still it would not affect it at all, because only that part which is used by the public is a highway. I speak of this as an illustration. The possession must be hostile; that is, adverse to everybody or anybody that could claim an interest in opposition to it. A man comes into possession of land under an agreement to enter in there; it can’t be hostile possession; it must be a possession hostile, that says, ‘ I own this land; this is my.land; I claim it against all the world.’ * * *
“As I said, adverse possession is founded upon the doctrine of estoppel, and estoppel, when allowed, must be based on something else than the silent permission of improvements by a party who has not acted in bad faith or done any act which the other'party had a right to regard as meant to bind his conduct. Adverse possession must be clearly shown, and 'not left to inference. Where title is claimed by an adverse possession for the statutory period of 15 years, it should appear that the possession had been actual, continued, visible, notorious, distinct, and hostile. Adverse possession, to give title, must be an actual, continued, visible, notorious, distinct, and hostile possession, and a finding of adverse possession must be based upon facts which show in explicit terms a state of facts that will satisfy the legal definition. * * * ” '

This portion of the charge was not a correct statement of the law, and was well calculated to give the jury the impression that more was required of the defendant than the law requires. The rule as to adverse possession is correctly stated in Sauers v. Giddings, 90 Mich. 50 (51 N. W. 265); Henry v. Henry, 122 Mich. 6 (80 N. W. 800); Pugh v. Schindler, 127 Mich. 191 (86 N. W. 515).

Judgment is reversed, and new trial ordered.

The other Justices concurred.


author: Carpenter, J.

text:
    BURGESS v. STOWE.
    1. Personal Injuries — Elevators—Negligence and Contributory Negligence — Questions for Jury.
    Plaintiff, being in defendant’s store on business, went to an open elevator shaft, where defendant raised the gate, and, stepping back, said in a louder tone tlian usual, “Elevator!” for the purpose of warning people in the building that he was about to use it. Plaintiff, thinking it an invitation to enter, stepped into the shaft, and fell. Whether or not the shaft was well lighted was disputed. Reid, that it was right to submit to the jury the questions of negligence and contributory negligence.
    3. Same — Defendant’s Intent — Invitation to Enter Elevator.
    The defendant’s intent or purpose in raising the gate and calling out “ Elevator!” would not relieve him from liability, since it was competent for the jury to find that an ordinarily prudent man would have apprehended that it might be regarded as an invitation to enter the elevator.
    3. Same — Instructions—Cause of Injury.
    A charge that plaintiff could not recover unless he received his injury in acting upon the invitation of defendant to enter the elevator rendered it unnecessary to charge that he could not recover because of the defective construction of the elevator or shaft, or for defendant’s lack of skill in managing it.
    4. S ame — Contributory Negligence.
    Where defendant invited plaintiff to enter an elevator, the latter was not bound to exercise a high degree of care to ascertain whether the elevator car was in the shaft.
    5. Trial — Arguments of Counsel — Effect of Verdict.
    A remark by plaintiff’s counsel in his argument to the jury, that they need not worry much about the verdict against the defendant, was not an invitation to the jury to consider a suggestion implied in an excluded question asked of defendant as to whether he was protected by accident insurance.
    6. Elevators — Care Required in Operation.
    The owner of a building, in operating an elevator, is not ‘ ‘ bound to exercise the highest degree of care and diligence of a cautious person, so far as human care and foresight can gohe is only bound to use the care required of an ordinarily prudent person under the circumstances.
    Error to Kent; Perkins, J.
    Submitted May 14, 1903.
    (Docket No. 73.)
    Decided July 14, 1903.
    Case by Harry W. Burgess against W. Arthur Stowe for personal injuries. From a judgment for plaintiff, defendant brings error.
    Reversed.

      Butterfield & Keeney, for appellant.

      H. B. Fallass, for appellee.
   Carpenter, J.

This is a suit brought to recover damages for personal injuries. Plaintiff recovered in the court below. Defendant .asks this court to reverse that judgment on the ground that the testimony did not make a case for the consideration of the jury, and upon other grounds, which, as far as needful, will be discussed in this opinion.

Did the court err in submitting the case to the jury? Defendant contends that there was no evidence of his negligence, and that plaintiff was, as a matter of law, guilty of contributory negligence. The determination of this question requires an examination of the plaintiff’s testimony.

Plaintiff was a newspaper publisher, and defendant was engaged in the business of selling paper at his store in Grand Rapids. In the forenoon of November 14, 1901, plaintiff visited defendant’s store for the purpose of examining and purchasing a supply of paper. The paper which he wished to examine was on one of the upper floors in defendant’s store. One of the means of reaching said floor was an elevator. This elevator ran in an open shaft, extending from the top of the building to the basement. The opening on the ground floor was six feet high and five feet and one inch wide. It was guarded by two doors, which were generally kept open, and a gate made of slats, which was about three feet high, and of the same width as the opening. One desiring to enter the elevator raised this gate to the top of the opening, and passed under it into the elevator. The elevator was used for transporting both freight and passengers. No one was especially charged with the duty of guarding or operating it. Any one of many employés of defendant operated it, as occasion demanded. The operator controlled its movements by means of a perpendicular cable, passing through a corner of the elevator, and extending from the top to the bottom of the shaft. ' In the course of the conversation (which occurred on the ground floor of defendant’s store) between the plaintiff and the defendant respecting the proposed sale of paper, defendant suggested that both he and the plaintiff go upstairs and examine said paper. Upon this being assented to, defendant led the way to the elevator. The doors were open and the gate down. Defendant raised the gate, stepped back, and in a louder tone than before said “Elevator!” Plaintiff, supposing this to be an invitation to enter the elevator, stepped forward, and fell down the elevator shaft, and received the injuries complained of. The testimony makes it quite clear that defendant’s purpose in raising the gate, was to enable him to reach the cable which controlled the car, .which, as a matter of fact, was on some floor above that upon which he and plaintiff stood; that he spoke the word ‘ ‘ Elevator!” as he did, in accordance with the custom in his store, as a warning to all who might hear him that he proposed to use the elevator, and not as an invitation to plaintiff to enter the same.

There is some dispute as to whether or not the shaft Was well lighted; plaintiff saying that the place was quite dark, while defendant’s testimony indicates that it was quite light. We think it clear, however, that, had plaintiff been called upon to give particular attention to where he was stepping, he could not have failed to see that the elevator was not before him.

To us it seems clear that the jury were authorized by this testimony to find that the action of the defendant amounted to an invitation to the plaintiff to step forward into this shaft, and that in acting under this invitation plaintiff was not guilty of contributory negligence. Defendant has called our attention to a number of cases in which it has been held that a person injured by falling down an elevator shaft or into an open excavation cannot recover. We shall not attempt to discuss these cases. All of them are, in our opinion, inapplicable. In those cases the injured party was not, as in this case he was, acting under what he had a right to believe was the invitation of the defendant. This important circumstance not only created a duty on the part of the defendant, but had a very important bearing in limiting the obligation of the plaintiff to care for himself. Plaintiff certainly was not under the same obligation to guard against dangers that he would have been had no invitation been extended. We think, therefore, that the trial court did not err in refusing to direct a verdict for the defendant.

It is claimed that the court erred in refusing tq instruct the jury:

(a) “ If you find that Mr. Stowe, upon raising the gate, called ‘ Elevator ! ’ in a loud tone of voice, and that this was with the intent or purpose on his part to sound a warning to any one above who might be using or about to use the elevator at that time, then such act on his part would not be negligence.”

This was not error. Plaintiff was with defendant, and it was competent for the jury to find that an ordinarily prudent man would have apprehended that raising the gate and shouting ‘ ‘ Elevator ! ” might be accepted as an invitation to step forward. Defendant’s liability in this case does not depend entirely upon his intent or purpose, as assumed in the above request.

(6) It was not error to refuse defendant’s request that there could be no recovery against the defendant because of the supposed defective or faulty construction of the elevator car or shaft, or because Mr. Stowe was without skill in the management of the elevator. The charge of the court made it clear to the jury that the plaintiff could not recover unless he received his injury in acting upon the invitation of defendant. This clearly meant that there-could be no recovery on account of defendant’s want of skill, or because the elevator or some part of it was defective. Cases might arise in which it would be the duty of the court to give such requests in order to make clear the issue presented to the jury. This, however, is not such a case.

(c) Nor was it error to refuse to charge, as requested by defendant:

“If on the morning of November 14th it was light enough at the elevator entrance so that Mr. Burgess could have seen that the elevator car was not in the shaft, and he did not see or notice that it was not there merely because he did not look, then I charge you that his failure to use his eyes was contributory negligence, and he is not entitled to recover. ”

Under the circumstances of this case, it was competent for the jury to decide that the plaintiff, acting under the invitation of the defendant, was not bound to exercise the high degree of care required in the foregoing request.

At the beginning of his closing argument to the jury, plaintiff’s counsel said:

“I just want to say to you, you don’t have to worry much about the verdict against Mr. Stowe.”

It is contended by defendant’s counsel that this was an invitation to the jury to take into consideration the suggestion implied in a question asked of defendant and excluded by the court as to whether he was protected by insurance against liability for plaintiff’s damages. Plaintiff’s counsel denies that he had any such purpose in making this statement. The words themselves do not naturally convey the thought that the jury are asked to be governed -by the excluded testimony. The natural construction of the words is that the jury were advised not to concern themselves about the consequences of their verdict against defendant, and this is proper advice. There must have been some peculiarity in the way of speaking these words, if they conveyed the impression complained of. Defendant’s counsel took no step to put evidence of that peculiarity, if there was such a peculiarity, on the record. He did not see fit to call the matter to the attention of the court until after the jury had retired to consider of their verdict. Under these circumstances, we do not think that he can ask us to find in these words the meaning complained of.

The court, in charging the jury, said:

“ I instruct you that a person operating an elevator, in lifting a passenger from one floor to another in a building, is to be treated as a carrier of passengers, and the same duties rest upon him as on a carrier of passengers by railways. Though not insurers of the absolute safety of the passenger, the owner or operator of an elevator is bound to exercise the highest degree of care and diligence of a cautious person, so far as human care and foresight can go, and, in the absence of contributory negligence on the part of the person injured, is responsible for any injury occasioned because of any neglect against which a reasonable human prudence might have guarded. * * *
“ To determine whether the defendant, on the day in question, was guilty of negligence, you will ask yourselves, and answer: Did he exercise the highest degree of care, under the circumstances of this case, consistent with the possibility of injury to the plaintiff, taking into consideration all the facts and circumstances you may find to be true, under the evidence in this case bearing upon this subject ? * * *
“Did the conduct of the defendant amount to an invitation, as the plaintiff claims, or is the contrary true, as the defendant claims, taking into consideration the degree of care the defendant was bound to exercise toward the plaintiff, viz., the highest degree of care, as I have instructed you ? * * *
“These parties owed reciprocal duties toward each other, — the plaintiff to use ordinary care to avoid any injury to himself, and the defendant to exercse the highest degree of care to prevent any injury to the plaintiff.”

We are referred to several decisions which sustain the charge. See Treadwell v. Whittier, 80 Cal. 574 (22 Pac. 266, 5 L. R. A. 498, 13 Am. St. Rep. 175); Mitchell v. Marker, 62 Fed. 139, 10 C. C. A. 306, 25 L. R. A. 33; Goodsell v. Taylor, 41 Minn. 207 (42 N. W. 873, 4 L. R. A. 673, 16 Am. St. Rep. 700); Southern Bldg. & Loan Ass'n v. Lawson, 97 Tenn. 367 (37 S. W. 86, 56 Am. St. Rep. 804).

In our judgment, however, the correct rule, and a rule more in harmony with the decisions in this State (see Michigan Central R. Co. v. Coleman, 28 Mich. 440; Grand Rapids, etc., R. Co. v. Huntley, 38 Mich. 537 (31 Am. Rep. 321); Hall v. Murdock, 114 Mich. 233 (72 N. W. 150), is stated in the case of Griffen v. Manice, 166 N. Y. 188 (59 N. E. 925, 52 L. R. A. 922, 82 Am. St. Rep. 630). We quote from that opinion:

If the charge of the trial court is to be sustained, we must hold that the maintenance and operation of an elevator form an exception to the general standard of care imposed by the law upon the owners and occupants of real property. We see no reason for making this exception. The operation of an elevator, no doubt, involves danger, and if accident occurs it may result in most serious consequences. It is not, however, the only dangerous appliance used in modern buildings. The boiler which furnishes steam heat, the conductors through which electric light is furnished, may at times be the cause of serious accidents. An open hatchway is equally dangerous. Yet it has never been attempted to impose upon the owner of a building any greater responsibility as to these matters than that of exercising reasonable care. It is very probable that, in the advance of the mechanical arts, many new appliances will be introduced into buildings which will involve danger. It seems to me impracticable to distinguish, as to the measure of the owner’s duty, between these appliances, and that such an attempt would involve great confusion in the law. I do not wish to be misunderstood. In the exercise of the same degree of care different degrees of precaution may be necessary. The same man, with equal prudence, will leave an article of furniture unguarded in his house, and carefully secrete or lock up jewelry or money. So, the more dangerous an appliance may be the more attention may be requisite. If the fair purport of the charge of the court was only that the care should be commensurate with the danger, it might not be objectionable. The charge, however, goes far beyond this. The utmost human care and foresight would require the owner of a building to use the most modern and improved form of elevator, the latest successful mechanical device, and the most skillful operators. * * * But common knowledge informs us that such a rule would be 'unreasonable, applied to elevators in ordinary buildings. There are elevators not only in great office buildings and hotels, but also in small buildings, and even in many private houses. Where there is little traffic, the duty of operating the elevator is at times imposed on an employe or servant with other work to perform. To require in all these cases (and I do not see how it is possible to distinguish between them on the law) the same measure of duty that is imposed on a railroad company or common carrier would be going too far. I think sufficient security • is afforded the public when owners or occupants of a building are required to use reasonable care in the character of the appliance they provide and in its maintenance and operation. The stairways are always open to those who deem this degree of diligence inadequate for their protection. ”

In our judgment, therefore, the court erred in charging the jury that,defendant was “bound to exercise the highest degree of care and diligence of a cautious person, so far as human care and foresight can go.” Defendant was bound to use .the care required of an ordinarily prudent person under the circumstances. This, morally speaking, is a high degree of care, because an ordinarily prudent person, under those circumstances, would exercise such care; but there did not rest upon him the extraordinary obligation required by the charge.

We find no reversible error in the other assignments relied upon.

' For the error pointed out, the judgment will be reversed, and a new trial granted.

The other Justices concurred.


text:
    BLISS v. POTOMAC FIRE-INSURANCE CO.
    Fire Insurance — Foreign Companies — Agency.
    A fire-insurance agent who, on being applied to for insurance, procured another agent to write a policy in a foreign company, and thereafter delivered the policy to the insured and collected the premium, was the agent of the company, and not of the insured. 2 Comp. Laws, §7246; Pollock v. Insurance Go., 127 Mich. 460.
    Error to Saginaw; Beach, J.
    Submitted May 15, 1903,
    (Docket No. 83.)
    Decided July 14, 1903.

      Assumpsit by Aaron T. Bliss against the Potomac Fire-Insurance Company on a policy of insurance. From, a judgment .for plaintiff on verdict directed by the court, defendant brings error.
    Affirmed.

      Dickinson, Stevenson, Cullen, Warren & Butzel and Clyde I. Webster, for appellant.

      Humphrey & Grant, for appellee.
   Moore, J.

The defendant is a foreign insurance company, which had a fire-insurance policy of $1,000 on a salt block and contents at Carrollton, Mich., owned by plaintiff, which building was destroyed by fire June 4, 1901. Proofs of loss were duly made. The defendant declined to pay, and this suit was brought upon said policy o'f insurance. The plea of the general issue was filed, and notice given thereunder that it would be claimed as a defense that the building was vacant and unoccupied when the insurance was obtained, September 1, 1900, and continued in that condition until the fire, of which the company had no knowledge. Notice was also given that it would be claimed as a defense that the building had been idle and unoccupied for more than 10 consecutive days prior to and at the time of the fire. The case was tried before a jury, but the circuit judge directed a verdict in favor of the plaintiff for the full amount of the insurance. The case is brought here by writ of error.

The record shows that Schupp, Sheridan & Hicks are insurance agents at Saginaw, Mich., conducting the business of a general insurance agency. They had in September, 1899, procured a line of insurance for the plaintiff. As they could not carry all of it in the companies they represented, they did what Mr. Schupp testified was the general custom of insurance agents, placed some of the insurance with agents of other companies, and they procured from Bierce & Sage, of Detroit, a policy of $1,000 in the Capitol Insurance Company. This policy expired in September, 1900, and the agents living at Saginaw asked Bierce & Sage to renew this policy. As they had ceased to represent the Capitol Insurance Company, instead of procuring a renewal in it, they wrote a policy in the Potomac Fire-Insurance Company, for which they were the Michigan agents, and forwarded the policy to the Saginaw agents. Upon the back of the folded policy was placed the following:

“Eddy Bldg. Boom 206.
“Schupp, Sheridan & Hicks,
“Insurance.
“ Both ’Phones 12?.
“Saginaw, Mich.”

The policy was then delivered to the plaintiff by the Saginaw agents, who collected the premium, deducted therefrom their commission, and forwarded the balance to Bierce & Sage.

The plant of plaintiff consisted of a sawmill, salt block, and planing mill. At the time the policy was issued, and up to the time of the fire, the sawmill and salt block were-not running, but the planing mill was. During this time the salt block was in charge of a yard foreman in the daytime, and of the night watchman at night. No representations were made as to .the salt block being operated when the policy was issued, and no questions were asked of the insured upon that point. No written application was made.

Upon the trial, and now, it was and is claimed that the-Saginaw agents represented the plaintiff, and did not represent the defendant. It was also claimed that neither Bierce nor Sage had knowledge that the salt block was not in operation when the policy was issued, though Mr. Sage testified, among other things :

“We have a State agent, a traveling man that travels around through the State, representing the Potomac Fire-Insurance Company. He was here in Saginaw frequently in 1900 and 1901 for the purpose of looking over these policies, looking after the business of that company. I couldn’t say how many times he was here in 1900, but he was here frequently. He may have been here in 1901; I couldn’t say. It was his business to look after the business-of the Potomac Fire-Insurance Company here in Saginaw Yalley when he was here, and he looked after their risks and their policies and reported to us. That is what he was hired for, and it was part of his duty to become acquainted with the risks that were assured by that company”

The State agent was not called. Mr. Schupp testified he had no personal knowledge whether the mill was idle or not. No other member of his firm was sworn as a witness. No requests to charge were preferred by.either party. After the argument, it was conceded by defendant’s counsel that the judge should direct, the verdict one way or the other. The court charged the jury as follows i

Gentlemen of the Jury: In this case, as the court views it, it is a question for the court to instruct you with reference to the law in the case, and also to instruct you to return a verdict. The policy of insurance in this case was issued by the defendant company on the 1st day of September, 1900, insuring A. T. Bliss for $1,000, upon his paying $29.25 premium, upon his frame, steam, gravel-roof salt-block building and foundations to same, including grainers, settlers, vats, bins, wood and metal pipes, tubing,, tools, salt, carts, and fixtures contained therein or connected therewith, situated on the west bank of the Saginaw river, at Carrollton, Saginaw county, Michigan.
“It is claimed in this case by the defendant that Schupp, Sheridan & Hicks, of this city, had no authority whatever to act as insurance agents for the defendant in this case; that its business was done by Bierce & Sage, of Detroit, and that they were the only ones that had any authority to issue policies and to take insurance; that Schupp, Sheridan & Hicks, when they procured this policy, were acting as the agents for the insured, A. T. Bliss.
“Under the undisputed testimony in this case, I instruct you to return a verdict in favor of the plaintiff, and against the defendant, in the sum of $1,000 and accrued interest. You, gentlemen, can ascertain what the interest is upon that. There is no dispute in this case in reference to the fire, nor as to the amount of the loss. The only question is that the defendant company claims, as a matter of fact, that Schupp, Sheridan &; Hicks, when they procured this policy, were the agents of A. T. Bliss; and, as I view the law, they were, as a matter of law, the agents for the insurance company.
“Mr. Humphrey: The interest for 7 months and 27 days is $32.92.
“Mr. Butzel: I have no doubt that is correct.
The Court: You may add this to the policy of $1,000, —$32.92,—and your verdict will be for $1,032.92. The clerk will take your verdict.”

When the judge "told the jury, in the presence of the attorneys, what was claimed by the defendant, no suggestion was made to the judge that any other question was involved than the one mentioned. Under the record as made, the only question we feel warranted in considering is whether Schupp, Sheridan & Hicks were agents for the defendant. See Winchell v. Hicks, 18 N. Y. 558; O'Neill v. James, 43 N. Y. 84; Ormes v. Dauchy, 82 N. Y. 443 (37 Am. Rep. 583); Collester v. Hailey, 6 Gray, 517. In relation to this question, the case of Pollock v. Insurance Co., 127 Mich. 460 (86 N. W. 1017), and same case on second trial, 132 Mich. 225 (93 N. W. 436), is on all fours. The only difference is that Yernor Bros., insurance agents, and Bierce & Sage are all residents of Detroit, while in this case one firm of agents lives in Saginaw and the other in Detroit. The case is so recent it is only necessary to refer to it.

Judgment is affirmed.

The other Justices concurred.


author: Montgomery, J.

text:
    BLUMENTHAL v. BERKSHIRE LIFE-INSURANCE CO.
    1. Life Insurance — -Warranties—Sickness.
    A representation in an application for a life-insurance policy that one is in good health, and has not been attended by a physician, means that he is free from disease that would seriously affect the general soundness of the system, and that he has not been attended by a physician for a serious ailment.
    2. Same — Application—Construction op Words.
    The words “chronic or persistent,” in a question in an application for life insurance, do not materially differ from ‘ ‘ chronic and xiersistent. ” *
    Error to Ogemaw; Sharpe, J.
    Submitted June 3,1903.
    (Docket No. 19.)
    Decided July 14, 1903.

      Assumpsit by Philip Blumenthal against the Berkshire Life-Insurance Company on a policy of insurance. From a judgment for plaintiff, defendant brings error.
    Affirmed.

      F. L. Snodgrass {T. A. F. & J. C. Weadock, of counsel), for appellant.

      Boss & Harris (Simonson, Gillett & Clark, of counsel), for appellee.
   Montgomery, J.

This is an action on an insurance policy issued on the life of Nicholas I. Blumenthal. The defense interposed was false representations and warranties made by the insured in his application for the policy. The particular questions claimed to have been falsely answered, together with the answers given in the application, were the following:

“ No. 15. Have you ever had chronic or persistent cough or hoarseness ? A. No.
“No. 16. State particulars of any illness, constitutional disease, or injury you have had, giving date, duration, and remaining effects, if any. A. No disease or illness of any kind.
“No. 17. When did you last consult a physician? A. About a year ago. Q. For what? A. Cold and cough. JÜ * *
“No. 21. Give names and addresses of physicians who have attended you? A. C. L. Nauman, M. D., West Branch, Michigan.”

It is argued at length by counsel for the defendant that the evidence conclusively shows that the insured was suffering from a chronic and persistent cough for a considerable period before the application; that he had, within the period of a year, consulted physicians other than Dr. Nauman; and that his answers to each of these questions were shown to be untrue.

It would not be of profit to set out at length the testimony bearing upon the question as to whether the ailments which the insured is shown to have had were such ailments or diseases as to seriously affect the general soundness and healthiness of the system, or whether, on the other hand, it was a mere temporary indisposition, not tending to undermine the constitution of the insured. An examination of the record discloses that this question of fact was sharply controverted at the trial, and that there is abundant evidence that, on the occasions when the insured had consulted physicians, the trouble under which he was laboring was temporary, and yielded to treatment. The law is settled that in a representation, contained in an application for insurance, that the insured is in good health, or that he has not been subject to illness, or that he has not been attended by a physican or consulted one professionally, the answer is to be construed as meaning, in the one case, that he has not suffered an illness of a serious nature, tending to undermine the constitution, and that a state of health is freedom from disease or ailment that affects the general soundness or healthiness of the system seriously. And as to representations as to treatment by physicians, the omission to state a treatment by a physician for some temporary indisposition does not avoid the policy. See Brown v. Insurance Co., 65 Mich. 306 (32 N. W. 610); Pudritzky v. Supreme Lodge, K. of H., 76 Mich. 428 (43 N. W. 373); Hann v. National Union, 97 Mich. 513 (56 N. W. 834, 37 Am. St. Rep. 365); Plumb v. Insurance Co., 108 Mich. 94 (65 N. W. 611); Tobin v. Modern Woodmen of America, 126 Mich. 161 (85 N. W. 472); Connecticut Mut. Life-Ins. Co. v. Trust Co., 112 U. S. 250 (5 Sup. Ct. 119).

Following this line of cases, the circuit judge charged the jury as follows:

“Now, as I said to you, it is not the duty of an applicant for insurance to advise the insurance company of every time he consults a physician for some temporary indisposition; but it is his duty to advise them, in answer to that question, every time that he has consulted a physician relative to any serious ailment, such as I have spoken of; and, if you find that the disease with which Nicholas I. Blumenthal was then suffering was such a disease as would affect his general health, then it would be his duty to have advised the company that he had been attended by Dr. Witter.”

Error is assigned upon this instruction, but we think it was clearly within the rule as above laid down.

Error is assigned upon a portion of the charge in which the circuit judge referred to question No. 15, above quoted, and stated the question which was asked to have been, “Have you ever had chronic and persistent hoarseness?” It is argued that the substitution of the word “and” in place of the word “or” in the question as put to the applicant changed the sense of the question, and an effort is made to show some marked distinction between the words “chronic” and “persistent,” as used in this sentence. We think the effort has not been marked with success. The word “or” is not always disjunctive. It is sometimes interpretative or expository of the preceding word. So, it is often used in the sense of “to wit,” “that is to say.” We think it was so used in this sentence, and that, as used in this connection, the two words are or were intended to be used in the same sense, the word “chronic” being defined, in effect, as meaning “persistent.” See 21 Am. & Eng. Enc. Law (2d Ed.), p. 936, and cases cited in note 5; Powell v. Pace-Course Co., L. R. 39 Q. B. Div. 242.

Other errors are assigned, all of which have been considered, but, except as they are covered by the foregoing discussion, we do not find that they call for further consideration.

We are satisfied that no substantial error was committed to the prejudice of defendant, and the judgment will be affirmed, with costs.

The other Justices concurred.


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    CURTIS v. CURTIS.
    1. Evidence — Relevancy.
    Plaintiff, who had obtained a judgment against W., assigned it to defendant. The judgment was afterwards set aside, and then the cause of action was settled by defendant. As to whether plaintiff consented to the settlement, the evidence was contradictory. Plaintiff’s testimony tended to prove that the assignment was only to secure the money loaned him by defendant to carry on the suit. Defendant’s testimony tended to prove that the assignment was to secure, in addition, a nóte given by plaintiff to him, which was to be paid*when plaintiff recovered against W. The amount received by defendant on the settlement was more than the amount advanced to carry on the suit. Plaintiff sued defendant for a conversion of the cause of action, and the judge charged the jury that he could not recover if he consented to a settlement of the suit against W. Held, that the note was admissible in evidence.
    2. Assignment of Cause of Action — SecuritySettlement of Suit.
    As defendant’s testimony tended to show that the note would not be payable until plaintiff recovered against W., his settlement of that suit without plaintiff’s consent did not entitle him to take payment of the note from the proceeds ©f the settlement.
    3. Trial — Instructions—Error.
    Where the verdict of a jury might have been based upon a ground supported by the law and facts, or on a ground authorized by erroneous instructions, such instructions are prejudicial error.
    4. Evidence — Value of Cause of Action.
    In determining the value of a cause of action, it is proper to permit the jury to consider the results of various trials brought to enforce it.
    5. Trial — Instructions—Measure of Damages — Evidence.
    If there is> evidence in a case relating to the measure of damages which is speculative and should be disregarded by the jury, the court should clearly point it out, and not permit the jury to determine what evidence should be disregarded.

      Error to Kent; Perkins, J.
    Submitted June 3, 1903.
    (Docket No. 16.)
    Decided July 14, 1903.
    Case by James A. Curtis, as surviving partner of himself and George H. Outhouse, deceased, composing the firm of J. A. Curtis & Company, against George S. Curtis, for the wrongful conversion of a cause of action. Prom a judgment for defendant, plaintiff brings error.
    Reversed.

      Grove & McDonald, for appellant.

      Dunham & Malcolm, for appellee.
   Carpenter, J.

The parties to this suit are brothers. Plaintiff, as the surviving partner of himself and George H. Outhouse,' deceased, had a cause of action against Luther T. Wilcox, at one time sheriff of St. Joseph county, arising from the seizure of stock by said sheriff upon which the partnership composed of plaintiff and said Outhouse had a chattel mortgage. Such cause of action against Wilcox was assigned to defendant to secure the payment of certain indebtedness. After said assignment, the defendant settled said cause of action with the parties responsible therefor for the sum of $1,500 cash. Under the claim that he had a right to the whole of said $1,500 to pay the indebtedness secured by said assignment, defendant refused to pay any of the same to plaintiff. Thereupon the plaintiff brought this suit for the conversion of said cause of action. Defendant pleaded the general issue.

The testimony on the trial conclusively proved that the assignment secured the defendant for moneys advanced by him to the plaintiff to enable him to carry on said suit. These advances, with interest thereon, amounted to about $1,000. The testimony of the plaintiff tended to prove that said assignment secured nothing else. The testimony of the defendant tended to prove that said assignment secured everything that plaintiff owed him, and it is claimed that there was testimony introduced tending to show that plaintiff owed defendant the amount evidenced by a note of $554, which will be hereafter referred to. Defendant testified that the plaintiff consented to and acquiesced in the settlement complained of. Plaintiff denied such consent or acquiescence. From the testimony introduced, the jury might have found that the value of the cause of action was much greater than the amount for which it was settled, or they might have found that it did not exceed that amount. In submitting the case to the jury, the court charged that, if the plaintiff consented to or acquiesced in the settlement made by defendant, their verdict must be no cause of action; that, if plaintiff did not agree to or acquiesce in that settlement, defendant was liable in damages for the amount that the cause of action exceeded in value the amount secured by the assignment; that, to ascertain the amount secured by the assignment, they should determine whether the assignment secured the $554 note heretofore referred to or not. The jury, under this charge, rendered a general verdict for the defendant.

Plaintiff seeks a reversal of the judgment below on several grounds, the most important of which is that the court erred in admitting in evidence said $554 note, and that said testimony, when admitted, did not warrant the jury in finding that said note was so secured by the assignment as to give defendant the right to pay the same from the proceeds of the settlement. This $554 note was signed by the plaintiff, and was payable to the defendant. It was given in 1880 in satisfaction of a judgment obtained by defendant against plaintiff. It'was not delivered to the defendant, but was delivered to a partnership composed of John L. Curtis, since deceased, brother to the parties, and L. G. Dunton, their brother-in-law. By the agreement of the parties as testified to by the defendant, the note was to be paid when plaintiff recovered against the sheriff of St. Joseph county on the cause of action involved in this suit; and according to the brother-in-law, Dunton, plaintiff was to pay it if he gained that suit.

We do not think the court erred in admitting this testimony. On the theory that the settlement complained of was authorized or acquiesced in by plaintiff, defendant had a right, under his testimony that the note was to be paid when the judgment was recovered, to have said note paid out of the proceeds of the settlement; for plaintiff’s consent to put an end to the cause of action before the judgment was obtained obligated him to pay the note, or at least furnished evidence from which the jury might find that he so obligated himself. It is hardly conceivable that he could, by consenting to the destruction of a cause of action, entirely terminate his obligation on a claim payable when that cause of action ripened into a judgment.

In reaching the conclusion that this testimony was admissible, we do not overlook the fact that according to the law of this case, as laid down by the trial judge and acquiesced in by both counsel, defendant was entitled to a verdict if plaintiff consented to or acquiesced in the settlement in question. It was therefore not necessary to his defense that defendant should prove that he had a right to keep the entire proceeds of the settlement if that settlement were authorized. Nevertheless, we think he had a right to introduce this evidence. Any other rule would be very unjust. It would place defendant in the position, not of having committed the wrong complained against him, but of having committed another, when the fact was, according to his testimony, he had committed none.

Did the testimony warrant the charge of the court respecting this $554 note? Defendant’s counsel contend that the verdict of the jury in favor of the defendant proves that they found that the plaintiff consented to the settlement, and therefore they were in no way affected by the charge of the court respecting said note. We cannot agree with this claim. The verdict might have been rendered upon the ground that plaintiff consented to the settlement, or it might have been rendered upon the ground that the value of the cause of action did not exceed the amount secured by the assignment. If the verdict was rendered upon the latter ground, and if there was, as plaintiff claims, error in the charge respecting the note, such error was prejudicial.

Did the testimony of the defendant warrant the inference that said note was so secured by the assignment as to give defendant the right to pay the same out of the proceeds of the settlement ? As already indicated, according to that testimony, the note was to he paid when plaintiff recovered against the sheriff of St. Joseph county on the cause of action involved in this case. Surely, defendant’s wrongful settlement of the cause of action did not entitle him to demand payment of an obligation which was payable out of the judgment to be recovered on said cause of action. To hold that it did, enables defendant to take advantage of his own wrong. We think, therefore, the court erred in giving the charge complained of respecting the note.

It is contended that the court erred in charging the jury as follows:

“In determining this question [the value of the cause of action], you will take into consideration the nature of the cause of action in that case, the claims made, the amount of indebtedness secured by the mortgage given by Dickerson & Co. to Curtis & Co., the kind and character of the property covered by such mortgage, its value, the various results of the several trials, the general history of the case as shown by the evidence, the length of time the case was pending before settlement, and from all these, and any other facts and circumstances you may find to be true in the case, determine the actual value of that claim or cause of action.”

The testimony showed that there had been several trials of the suit brought to enforce said cause of action. Two verdicts had been set aside by this court, and one by the lower court. It is insisted that it was erroneous for the trial judge to permit the jury to consider the various results of these trials, and the general history of the case, as bearing upon the value of the cause of action. We do not think that this was error. The circumstances alluded to had a material and obvious bearing upon the value of that cause of action.

It is also contended that the court erred in instructing the jury at the request of defendant:

“Neither courts nor juries can deprive a defendant of his property upon evidence which is speculative merely as to the amount of damages the plaintiff may have suffered. * * * The damages cannot rest in speculation merely.”

It is insisted by plaintiff’s counsel in their brief that there was no competent evidence that the damages claimed were speculative. There was évidence, however, that one jury had rendered a verdict for $3,844.66, which the trial judge had reduced to $2,474.31, and that another jury had rendered a verdict for $2,500, and the trial judge had reduced it to $1,181.03. Possibly the language of the court referred to these verdicts. It is obvious that the effect of the charge complained of was to suggest to the jury that there was certain testimony — not definitely pointed out — which might have a tendency to mislead them in measuring damages in favor of the plaintiff, and that this testimony should be disregarded because it was speculative. It would certainly have been better practice for the court to point out clearly what the testimony was which the jury should disregard as speculative. If that practice had been adopted, plaintiff could have had no apprehension that the effect of the court’s charge was to induce the jury to disregard all his testimony bn the subject of damages. As this is a question not likely to arise on another trial, it is unnecessary to determine whether or not it constituted reversible error.

In our judgment, the case was a proper one for the consideration of the jury. The other assignments of error relied upon are not well taken, and their discussion would be of no interest to the profession.

The judgment of the court below must be reversed, and a new trial ordered.

The other Justices concurred.


text:
    DALLAVO v. RICHARDSON.
    1. Sale op Goods — Statute op Frauds — Part Payment.
    The part payment required by 3 Comp. Laws, § 9516, to make a verbal contract for the sale of goods for more than $50 valid, may be made at a subsequent time, if it is intended to be received as part payment upon the contract price.
    2. Same — Rendering Bill — Estoppel.
    Where plaintiff purchased • railroad ties of defendant, and afterwards sold him a shingle mill to apply as part payment for the ties, the fact that plaintiff’s wife subsequently sent a bill for the mill to defendant did not estop plaintiff from claiming that the mill was a part payment on the price of the ties, so as to take the contract out of the operation of the statute of frauds.
    Error to Mecosta; Palmer, J.
    Submitted June 4,1903.
    (Docket No. 30.)
    Decided July 14, 1903.
    Replevin by John Dallavo against John Richardson and Archie Foster, copartners as Richardson & Foster. From a judgment for plaintiff, defendants bring error.
    Affirmed.

      M. Brown (George E. Nichols, of counsel), for appellants.

      A. B. Cogger (A. Broomfield, of counsel), for appellee.
   Montgomery, J.

This is an action of replevin for a quantity of ties numbering some 3,400. The plaintiff recovered, and the defendants bring error.

The question presented to the court below was whether the plaintiff had purchased of the defendants the ties in question. It was the plaintiff’s theory that the ties had been purchased, sufficiently identified, an inspector agreed upon, a portion of the purchase price paid, and the balance tendered. The plaintiff’s testimony tended to show that the bargain for the ties was made on the 26th of August, 1900, and was oral; that in September or October, 1900, he sold the defendants a shingle mill, plaintiff’s version of that transaction being as follows:

“ I let defendants have part of a shingle mill in September or October, 1900. My wife has got it down. That was at Wyman. Mr. Richardson came after it. He had Mr. Farrell and Mr. Washman with him. There were two or three men with him. My oldest son helped load up the machinery, and the last piece was a shingle belt I had in the store. We went in the store, me and Mr. Richardson, and Mr. Washman stood on the platform. Farrell was out in the road in front of the store with the team and with a load; and I gave the shingle belt to Mr. Richardson, and he turned around and said, ‘ How are you going to get your pay for this bill ? ’ And I said: ‘ I don’t need the money just now. You had bad luck with that mill down there. Apply it on the ties.’ And he said, ‘All right. ’ The price agreed upon for the shingle-mill machinery was $150. I let Mr. Richardson have some Babbitt, and also did some team work for him. The Babbitt and team work amounted to $5. He took the machinery and went away.”

On the 26th of November a letter was sent to the defendants in the name of plaintiff, demanding payment for this shingle mill, and $5 for team work and Babbitt. This letter was sent by plaintiff’s wife, who testified that, at the time she sent it, the fact that the price of-the shingle mill was to be applied on the ties had escaped her recollection.

The circuit judge submitted the question to the jury as to whether there had been a completed sale of this property. It is contended in this court that the evidence did not warrant the submission of this question to the jury; the principal contention being that the contract was void under the statute of frauds. Undoubtedly, it was so in its inception, but under our statute (section 9516, 3 Comp. Laws), if a part payment be made at any time when it is intended by the parties to be received as a payment upon the contract price, it is sufficient to take the case out of the statute. In this respect our statute differs from the statute of New York, in that the earnest or part payment is required by the New York statute to be made at the time the contract is entered into. Our statute contains no such provision. In such case, if a payment be made and accepted as a payment upon the oral contract, it is sufficient to constitute a part payment under the statute, if it be shown to be accepted with reference, to such previous contract. Wood, Stat. Fr. § 294; Gault v. Brown, 48 N. H. 183 (2 Am. Rep. 210); Whitwell v. Wyer, 11 Mass. 6; Thompson v. Alger, 12 Metc. (Mass.) 428. In the present case the circuit judge distinctly charged the jury that, unless the shingle mill and teaming were accepted by the defendants as part payment on the purchase price of the ties, there was no sale of the ties which the law would recognize.

Counsel for the defendants refer to the case of Gorman v. Brossard, 120 Mich. 611 (79 N. W. 903), and claim that that case is decisive of the present. But that case presented a very different question. There there was no delivery, and no payment, except as it was claimed that an agreement to discharge a pre-existing debt would constitute such payment. The effort is made to liken that case to this in this: That, in as much as the shingle mill was loaded on the wagon of the defendants before the agreement to apply the purchase price on the ties was made, the effect of the agreement was simply to discharge a debt; but it cannot be held that the title to this machinery had passed to the defendants until the arrangement for the payment of the purchase price had been made between the parties. It was still within the control of the plaintiff, and the first contract for payment was made at the time the agreement was made to apply it upon the purchase price of the ties.

It is further contended that the plaintiff is estopped from now asserting his purchase, because of the fact that a bill was rendered to defendants for the shingle mill, etc. We do not, however, find that the defendants were misled by this fact, or that their position was materially changed by reason of this error on the part of the plaintiff’s wife.

There was a fair case for the jury, well submitted, and ■ the judgment should be affirmed.

The other Justices concurred.


text:
    HAYNES v. QUAY.
    Sale — Goods to be Manufactured — Title—Delivery.
    On a sale of goods to be manufactured, title will not pass where the seller, instead of setting them aside for the purchaser, as soon as they are made uses them for another purpose.
    Error to Cheboygan; Shepherd, J.
    Submitted June 5, 1903.
    (Docket No. 39.)
    Decided July 14, 1903.
    Replevin by Frank J. Haynes, Fred R. Haynes, and William J. Haynes, copartners as F. J. Haynes & Company, against Lafayette Quay, Edward Quay, and George Quay, copartners as D. Quay & Sons, John A. Jamieson and Thomas Woodffeld, copartners doing business as the Neebish Lumber Company, Briggs & Cooper Company, Limited, and the Michigan Central Railroad Company. From a judgment for defendants on verdict directed by the court, plaintiffs bring error.
    Affirmed.

      Stevens, Graham & Stevens (Frost & Sprague, of counsel), for appellants.

      C. S. Reilley (Henry Hoffman, of counsel), for appellees.
   Carpenter, J.

This is a replevin suit for two car loads of shingles, which it was claimed plaintiffs bought from the Neebish Lumber Company, a copartnership composed of defendants Jamieson and Wood field. At the conclusion of the plaintiffs’ case the trial court directed a verdict for the defendants on the ground that the title to said shingles had not passed to the plaintiffs. The only question presented on this appeal is whether or not that ruling was correct.

According to the testimony of the plaintiffs, the terms of their contract, by which they acquired their rights to said shingles, are contained in a letter written by plaintiffs to said Neebish Lumber Company, June 21, 1901, and are as follows:

“We agree to take your output of shingles, estimated from 21 to 3 million, to be manufactured at Cheboygan this season, and made strictly to the following grades, for which we will pay the following prices: 8-inch clear and better, at $2.10; 5-inch clear, at $1.40; sound butts, at $ .60. Above prices are f. o. b. rail of vessel at Cheboygan ; same to be paid for in 60 days from date of shipment, or lí per cent, discount in 10 days. You agree to have the shingles well manufactured, up to grades, and will have Mr. Tremaine look after the making of same, as talked with Mr. Jamieson. You are to start making the same on or about July 1, 1901, or as soon as possible thereafter. You are to brand the shingles with our brand, the stencil to be furnished by us.”

It is the claim of plaintiffs that the language above-quoted,, construed in connection with the conditions and circumstances known to both parties to the contract,, bound the Neebish Lumber Company to sell, and plaintiffs to buy, all the shingles which might be manufactured from a certain cut of logs at St. Ignace. Only a part of these logs, namely, enough to make 1,043,000 shingles (which were delivered to plaintiffs), were sawed in the season of 1901. Plaintiff Haynes testified that in February, .1902, he had a talk with defendant Jamieson “relative to the balance of the shingles. * * *. And I asked him if he would have the shingles cut out for us early in the spring, as we needed them. He said it would depend upon when Quay [the mill owner at Cheboygan ] would cut them.” March 27, 1902, Quay commenced to manufacture shingles from the remaining logs. Instead of branding them with plaintiffs’ brand, as agreed in the letter heretofore referred to, he put Jamieson’s brand on them. Plaintiffs were at once notified of this, and inferred from it that defendants Jamieson and Woodfield did not intend to fulfill their contract; and thereupon the former wrote the latter, protesting against this conduct, and giving notice that they would insist upon their rights. To this letter no reply was received. The shingles, after they were cut, were graded, and piled upon the dock at Cheboygan. Some of them were branded ‘ ‘ Briggs & Cooper, ” to whom they were subsequently shipped, and some were branded “ J. A. Jamieson.” Under instructions of the Neebish Lumber Company, they were loaded on cars for shipment. While they were on said cars, this suit was commenced.

The contract which gave plaintiffs their rights was not a contract for the sale of goods in the condition in which they were to be delivered. It was a contract for the sale of goods to be manufactured. The law which determines when the title to such goods shall pass is stated by Mr. Mechem as follows:

“Where goods are to be manufactured, title ordinarily does not pass until goods are completed and delivery tendered. * * * Under a contract for the manufacture of an article, — as for the building of a ship, or the construction of any other chattel not existing in specie at the time of making the contract, — it is the general rule that no title vests in the purchaser during the progress of the work, nor until the chattel is finished and delivered, or at least is ready for delivery, and by tender or other equivalent act is appropriated to the buyer.” 1 Mechem, Sales, § 754.

This statement of the rule seems to be entirely consistent with the decisions of this court relating to the sale of goods to be manufactured! See First Nat. Bank of Marquette v. Crowley, 24 Mich. 492; Whitcomb v. Whitney, Id. 486; Brewer v. Salt Ass’n, 47 Mich. 526 (11 N. W. 370); Jenkinson v. Monroe Bros. & Co., 61 Mich. 454 (28 N. W. 663).

This case closely resembles that of Whitcomb v. Whitney, supra, but it is distinguished from that case by this very material circumstance: In that case the articles in a condition for delivery were by the seller set apart for the buyer. In this case nothing of that sort occurred. The sellers, instead of setting these shingles apart for the purchasers, undertook, as soon as they were made, and to the purchasers’ knowledge, too, to use them for another purpose. In other words, every act of the sellers after the shingles were manufactured indicated their intent that the title should not pass to the plaintiffs.

It is no answer to these views to urge that the Neebish Lumber Company had agreed that the title to the shingles in suit should pass to the plaintiffs when the logs were cut into shingles, graded, piled, and counted upon the dock. This agreement to sell was executory. The title to the shingles did not pass thereby until the sellers did something equivalent to a delivery to the purchasers. This, as we have already indicated, they never did. If the contract is to be construed as plaintiffs contend, the Neebish Lumber Company violated its agreement by refusing to deliver the shingles, and is responsible in damages therefor.

We are of the opinion, therefore, that the trial judge correctly decided that the title to the shingles did not pass to the plaintiffs, and the judgment of the court below will therefore be affirmed.

The other Justices concurred.


author: Gbant, J.

text:
    GATISS v. CYR.
    Statute of Frauds — Sale—Delivery to Carrier.
    Delivery of goods- to a common carrier for shipment is not such a delivery to and acceptance by the purchaser of goods of more than $50 in value as -will make a verbal contract valid.
    Error to Alger; Steere, J.
    Submitted June 9, 1903.
    (Docket No. 45.)
    Decided July 14, 1903.

      Assumpsit by John H. Gatiss, Jr., against Isadore Cyr, for goods sold and delivered. From a judgment for defendant on verdict directed by the court, plaintiff brings error.
    Affirmed.
    This suit was commenced in justice’s court. Defendant, being informed that plaintiff, a tradesman, had potatoes to sell, went to his store to buy them. Plaintiff was absent. His clerk showed defendant some potatoes. Defendant immediately after, and on October 16th, wrote plaintiff the following letter:
    “Mr. Gatiss,
    “ Chatham, Mich.:
    ‘ ‘ I have been to your store yesterday to see you in regard to potatoes. As you were not at home couldn’t make any deal. The potatoes that your clerk showed me are satisfactory. I can take about 500 bushels of those potatoes at 60 cents. If you should not have enough to make a car load, you might get some from Mr. Vaughn to finish the car, as I have bought from him already 75 bushels, and I agreed to take balance of his stock. I wish you would see him, so I may get all in same car. You must be sure to ship me the car before the last of this month, so that you get your check November 15th.
    “ P. S. — You can put six or seven hundred bushels in car.”
    To this letter plaintiff did not reply in writing, but immediately took steps to comply with its terms by shipping the potatoes. The car was loaded on the 22d, and duly shipped. It contained 21,535 pounds of potatoes. After some delay in transportation, the car was delivered by the railroad company to the defendant, who promptly refused to receive and accept the potatoes, and so notified the plaintiff. It is claimed by the defendant that the potatoes were not such as he bought, while the plaintiff claims that they were, and in good condition when shipped. The potatoes were in bad condition when shipped, or became so on account of cold weather while in. transportation. No acceptance was shown. The court directed a verdict for the defendant, for the reason that the contract, not being in writing, was void under the statute of frauds.

      H. B. Freeman, for appellant.

      F. D. Mead, for appellee.
   Gbant, J.

(after stating the facts). If delivery by the plaintiff to the common carrier for shipment was both a delivery to and an acceptance by the defendant, the case is not within the statute; otherwise it is. While some authorities hold that a common carrier is the agent of the vendee for delivery and acceptance (Strong v. Dodds, 47 Vt. 348; Leggett & Meyer Tobacco Co. v. Collier, 89 Iowa, 144 [56 N. W. 417]), the contrary rule is established by the decisions of this court (Grimes v. Van Vechten, 20 Mich. 410; Webber v. Howe, 36 Mich. 150; Smith v. Brennan, 62 Mich. 349 [28 N. W. 892, 4 Am. St. Rep. 867]; Kuppenheimer v. Wertheimer, 107 Mich. 78 [64 N. W. 952, 61 Am. St. Rep. 317]). Under these decisions the court below correctly held the contract void, and directed a verdict for the defendant.

The judgment is affirmed.

The other Justices concurred.


text:
    McCLOSKEY v. SCHOOL DISTRICT NO. 5 OF WHEATLAND TOWNSHIP.
    Schools and School Districts — Teacher’s Contract — Certificate.
    A contract between a teacher and a graded school district is invalid, unless the teacher, at the time of making the contract, has the certificate required by 2 Comp. Laws, § 4812, authorizing her to teach during the term covered by the contract; obtaining a certificate after the making of the contract, and before the commencement of the term, is not a compliance with the statute.
    Error to Mecosta; Palmer, J.
    Submitted June 9, 1903.
    (Docket No. 46.)
    Decided July 14, 1903.

      Assumpsit by Edna McCloskey against school district No. 5 of Wheatland township, upon a teacher’s contract. From a judgment for defendant, plaintiff brings error.
    Affirmed.

      M. Brown and A. B. Cogger (A. Broomfield, of counsel), for appellant.

      Joseph Barton (Crane, Norris & Drew, of counsel), for appellee.
   Carpenter, J.

March 4, 1901, the parties to this suit entered into a written contract by which said defendant (a graded school district in Mecosta county) employed plaintiff to teach its school for nine months, commencing September 2, 1901, at a salary of $30 per month. At the time this contract was made, plaintiff had a third-grade teacher’s certificate authorizing her to teach school in the county of Mecosta for the .year ending June 29, 1901. July 31, 1901, the trustees of the defendant school district canceled said contract with the plaintiff, and at once notified her of their action. August 24, 1901, plaintiff procured another certificate authorizing her to teach school in the county of Mecosta for the year ending August 24, 1902. September 2, 1901, plaintiff presented herself at the scboolhouse of the defendant district, and sought to perform her contract. Defendant refused to permit her to do this, and plaintiff brought this suit to recover damages. The cause was tried without a jury. The court made a finding of facts, from which the above statement is taken, and rendered judgment for the defendant, on the ground that, at the time the contract was canceled, plaintiff “held no certificate authorizing her to teach in the schools óf [Mecosta] county, and was therefore not a qualified teacher.”

We think the case of O'Leary v. School District, 118 Mich. 469 (76 N. W. 1038), justified this decision. Plaintiff in that case was employed to teach school three months, commencing September 21, 1896, with an agreement for a further employment of five months if she gave. satisfaction. After teaching the three months, the board hired another teacher, and advised plaintiff that her services were no longer required. Her certificate from the board of school examiners expired March 28, 1897, or about two months before the expiration of the five months. She brought suit for damages, and recovered judgment. This court reversed said judgment, saying:

“She [plaintiff] had no contract for the five months, and was in no position to make one for that length of time. * * * The plaintiff could not make such a contract, as she did not possess the necessary qualification therefor. The board was therefore released from any obligations under this contract, even though it could have been enforced if the plaintiff had been qualified to make it, — a point which it is not'necessary to determine here.”

Plaintiff’s counsel urge that that case is to be distinguished from this, because an examination of the record shows that Miss O’Leary could not have procured another certificate, while the plaintiff in this case could and did. That decision was not based upon the circumstance that Miss O’Leary could not qualify herself by procuring another certificate. It was based upon the principle that she could not, by reason of her not having such a certificate, make the contract which she sought to enforce. That case clearly decides that the statute (section 4813, 3 Comp. Laws) requires the teacher, at the time the contract of employment is made, to possess a certificate qualifying her to perform her contract; and this construction, in our judgment, is correct.

In this view of the case, the other assignments of error are immaterial.

The judgment of the court below will be affirmed.

The other Justices concurred.


text:
    TWEDDLE v. JUDGE OF SUPERIOR COURT OF GRAND RAPIDS.
    T. Contempt — Order—Statement of Offense.
    An order or warrant of commitment for contempt, under 1 Comp. Laws, § 1101, which does not set forth the particular circumstances of the offense, may he vacated on certiorari.

      2. Certiorari — Authority to Allow — Motion to Dismiss.
    The objection that a writ of certiorari was improvidently issued may-be considered on the hearing; but an objection that the officer allowing it had no authority to do so must be raised by a motion to dismiss, and not by the return.

      Certiorari to superior court of Grand Rapids; Newnham, J.
    Submitted June 9, 1903.
    (Docket No. 51.)
    Decided July 14, 1903.
    John J. Tweddle was adjudged, guilty of contempt of court.
    Order vacated.

      o ohn J. Tweddle, in pro. per.

   Carpenter, J.

This is a certiorari to review contempt proceedings. The following order constitutes the entire record in said proceedings:

In re Contempt Proceedings against John J. Tweddle.
“In this cause, it appearing to the court that J. J. Tweddle has committed the offense of contempt of court, therefore it is ordered and adjudged by the court now here that said respondent pay a fine in the penal sum of five dollars ($5.00), and do stand committed to the common jail for the county of Kent until such fine is fully paid, and for a period not exceeding two days. Whereupon, upon request of respondent, judgment was deferred until Monday morning at 10 o’clock.”

The statute — section 1101, 1 Comp. Laws — in express terms requires the “particular circumstances” of the offense to “be set forth in the order or warrant of commitment.” • The order of commitment under consideration does not set forth these circumstances, and is therefore defective.

The writ to review these proceedings was allowed by a circuit court commissioner of Kent county. The point is made in defendant’s return that such an officer has no authority to allow said writ, to review the proceedings of a superior court. If it were contended that the writ was improvidently allowed, that objection would be considered on the hearing. Farrell v. Taylor, 12 Mich. 113. No such contention is made. Indeed, the writ was not improvidently allowed. The objection under consideration goes only to the regularity of the writ which was issued in this case. That objection should have been brought to the attention of the court, not by the return, which puts the merits of the controversy at issue, but by a motion to dismiss. We must decline, therefore, to consider it.

The order adjudging plaintiff in certiorari guilty of contempt must therefore be vacated. No costs will be allowed.

The other Justices concurred.


author: Gkant, J.

text:
    WESTPHAL v. ST. JOSEPH & BENTON HARBOR STREET-RAILWAY CO.
    1. Personal Injuries — Contributory Negligence — Question for Jury.
    Where plaintiff’s testimony showed that he was using due diligence to get out of the way of an approaching car, and one of his witnesses, on cross-examination, stated that he went right on the track in front of the car, the question of contributory negligence should have been submitted to the jury.

      2. Witnesses — Impeachment.
    A party cannot impeach his own witness by showing contradictory statements made by him, on the ground that his testimony on cross-examination was not such as expected.
    3. Same.
    A party is not bound by the statements 'of his witness if the testimony of other witnesses shows a different state of facts.
    4. Street Railways — Negligence—Question for Jury.
    Where plaintiff, while driving along the street, exercising due care, was struck by a street car approaching from behind, the question whether the company was negligent in failing to check and control the car was for the jury.
    Error to Berrien; Coolidge, J.
    Submitted June 10, 1903.
    (Docket No. 67.)
    Decided July 14, 1903.
    Case by Frederick Westpbal against the St. Joseph & Benton Harbor Street-Railway Company for personal injuries. From a judgment for defendant on verdict directed by the court, plaintiff brings error.
    Reversed.
    Plaintiff was driving his horse, hitched to a road wagon, over the Wayne’-street viaduct, over a bayou of the St. Joseph river, between the cities of St. Joseph and Benton Harbor. The viaduct is 300 feet long and 19 feet wide, with guard rails on either side. The defendant has two tracks across this viaduct. The street slopes gradually from the bluff on the southwesterly bank of the bayou to the level of the river bottom on the opposite side. In crossing over this viaduct, vehicles must of necessity travel upon the street-railway tracks. Plaintiff came from a street running at right angles with Wayne street. As he approached the tracks he looked for a car, but saw none, and then turned to the left to cross the viaduct. When about the middle of the viaduct he heard a signal bell, looked around, and saw a car approaching. The car struck the hind end or hind wheel of his wagon, overturned the wagon box, and threw him to the ground. He was sitting on a spring seat near the front of the box. The box sat loose on the wagon. He testified that the box was thrown from the wagon, but the wagon did not tip over. The negligence charged is the propulsion of the car at a high, dangerous, and negligent rate of speed, and failure to reasonably control and check the speed of the car.
    Plaintiff testified:
    “When I heard the bell, I tried to get out of,the track. To get off the track, I turned to my left, so I tried to get out. I do not know where my horse was when the wagon was upset. When the car struck me, the horse was on the left-hand track. I had guided him off the right-hand track. At the time I was struck, the front wheels of my wagon were pretty near over to the left rail. The hind wheels were over to the right rail on- the right track. At the time I was struck, my horse was over on the left-hand track. My wagon is about eight feet long. I couldn’t tell how far apart the inside rails of the street-car track are. At the time the car struck me, my horse was headed to the left. His front feet were in the left-hand track. And he was headed towards the canal, and the front wheels were in the left-hand track, too, and the hind wheels, — one was between the two tracks and one in the track. This at the time the car struck me.”
    One Samuel Hannon, a passenger on the street car, was called as a witness for the plaintiff. He stood on the platform beside the motoi'man. On direct examination, Mr. Hannon testified that, when the car first struck the wagon, the horse was angling across the track; that, when, plaintiff was thrown from the seat, he struck upon his feet; that the horse began to run, that plaintiff’s feet became entangled in the lines, and he was dragged for a short distance. On cross-examination he testified that plaintiff was pulling his horse to the right onto the track, rather than to the left and away from it.
    Defendant introduced no testimony, and the court directed a verdict for the defendant on the ground that “Mr. Hannon’s evidence shows such negligence on the part of the plaintiff that he cannot recover legally.”

      Gore & Harvey, for appellant.

      Humphrey 8. Gray and M. L. Hoioell, for appellee.
   Gkant, J.

(after stating the facts). If recovery depended upon the testimony of Mr. Hannon, the court may have been right in directing a verdict. But plaintiff was not bound by his testimony. Plaintiff’s counsel claim that they were taken by surprise by the testimony given upon cross-examination. According to plaintiff’s testimony, he was using due diligence to get off the track of the approaching car, and to give the car the right of way. It is undoubtedly true that Mr. Hannon was in better position to observe the manner of the accident and the speed of the car than the plaintiff, who testified that, as soon as he heard the bell, he attempted to put himself in a place of safety; but this did not make his testimony conclusive. We think the question of plaintiff’s negligence should have been submitted to the jury.

Plaintiff’s counsel subjected Mr. Hannon to a rigid redirect examination, and asked him if he had not made certain contradictory statements to certain persons, which he denied. They then sought to show these contradictory statements, which were excluded by the court. If, under any circumstances, a party litigant may, in a civil action, impeach his own witness, whom he is not obliged to call, by proving contradictory statements, this case is not one to justify the practice. The witness was not asked upon direct examination in which direction plaintiff was guiding his horse. On cross-examination he testified that he was pulling the horse’s head to the right instead of to the left, as he should have done. A party will not be permitted to impeach his own witness by showing contradictory statements made by him because his testimony on cross-examination is not such as he expected the witness to give. We settled this question in criminal cases in People v. Elco, 131 Mich. 519 (91 N. W. 755), where the people are obliged to call the witnesses. The rule has not been extended by this court in civil cases, when a party is under no obligation to call the witness. Counsel cite Darling v. Thompson, 108 Mich. 218 (65 N. W. 754), and Smith v. Smith, Sturgeon & Co., 125 Mich. 234 (84 N. W. 144), as supporting their contention. Counsel are in error. These cases and other similar ones hold only that the party calling the witness is not bound by his testimony, if the testimony of other witnesses shows a different state of facts.

Defendant contends that there was no evidence of negligence on the part of the defendant, and that for this reason the verdict should be sustained. If the sole claim of negligence had been that the defendant propelled its car at a high, dangerous, and negligent rate of speed, the court might have been justified in holding that no negligence in this respect was shown. But the other negligence alleged was the failure to reasonably check and control the speed of the car. The care to be used in keeping a car under control depends upon the circumstances of each particular case, dreater care would be required in some cases than in others. The car, heavily loaded, was approaching the plaintiff upon down grade. Plaintiff was entitled'to reasonable time, by the exercise of reasonable effort, to drive his wagon out of reach of the approaching car. If plaintiff was exercising due care, which must be the first question to be determined by the jury, we think that the question of defendant’s negligence belonged to the jury. Rouse v. Detroit Electric Ry., 128 Mich. 153 (87 N. W. 68); Hicks v. Citizens’ Ry. Co., 25 L. R. A. 508 (s. c., 124 Mo. 115, 27 S. W. 542).

Judgment reversed, and new trial ordered.

The other Justices concurred.