author: Ostrander, C. J. Hooker, J. Bird, J.

text:
    BROGETSKI v. DETROIT UNITED RAILWAY.
    1. Street Railroads — Negligence—Contributory Negligence —Directing Verdict.
    Whether it was negligent for the driver of a load of lumber and a slowly moving team to attempt to cross in front of a street oar which he claimed was 200 feet and upwards behind him, was a question for the jury, where he crossed at a point at which the track turned from the middle of the street to the side and it might have appeared to the motorman that he would be obliged to cross at that place, and where testimony showed that the car struck the lumber projecting from the rear of the wagon, which had entirely crossed the tracks in safety.
    2. Same.
    But the judgment is reversed and a new trial ordered on the theory of three of the justices that it was error to instruct the jury that the motorman was negligent if he failed to anticipate that plaintiff might cross the track at the crossing, and on the theory of two of the justices that there was error in an implication, contained in the instructions, that the plaintiff was not required, equally with the motorman, to act with reference to known conditions, including the one that defendant’s car had the right of way. Bird, Moore, and Blair, JJ., dissenting.
    Error to Wayne; Donovan, J.
    Submitted October 27, 1910.
    (Docket No. 129.)
    Decided June 2, 1911.

      Case by William Brogetski against the Detroit United Railway. Judgment for plaintiff. Defendant brings error.
    Reversed.

      Brennan, Donnelly & Van De Mark, for appellant.

      Washington I. Robinson and Henry C. L. Forler, for appellee.
   Ostrander, C. J.

The plaintiff, with a team and load of lumber, was driving west on the right-hand side of a paved street, in the center of which were defendant’s tracks. Behind him, going in the same direction, was one of defendant’s cars. In front of him was a point where the pavement ended and where the road curved to the south, so that if plaintiff continued on his way he would be obliged to cross the defendant’s tracks. Plaintiff knew that the car was behind him; at least, he so testified. The motorman operating the car saw the plaintiff ahead of him. Both of them knew about the crossing which has been mentioned. The motorman testified:

“Q. Now, back to the original question, you knew if that wagon continued in the direction in which it was going it would eventually go over that crosswalk ?
“A. Yes, sir.
“Q. So that you knew if the wagon kept on going, and your car going the same way you were going, they would meet ? •
“A. We would have to cross.
”Q. It was either up to you or the man to stop; is that right?
“A. I understand you; of course it was up to either one or the other of us to stop.
“Q. As a matter of fact, neither one of you did stop in time?
“A. No, sir. * * *
“Q. I believe it has been testified in this case by two or three witnesses that the brick pavement ends at the planks; now, if a person came along here driving a horse on the right-hand side of the street, is there anything when he gets here to prevent him from turning north at Lumley, just as well as south across these planks ?
“A. No, sir.
Q. You cannot state positively when you see a man going along there that he is not going on Lumley avenue ?
“A. No, sir. I was not taking any chances on him doing anything. The fact that Lumley avenue was there made no difference to me in the way I was conducting the car. I knew Lumley avenue was there. I was not taking any chance on him turning up there.”

As a matter of fact, the plaintiff reached the crossing a little ahead of the car. The witnesses are not entirely agreed, some saying, as it is averred in the declaration, that the car struck the lumber sticking out from the rear of the wagon. Others say that the car struck the wagon. All agree that the car was going very slowly, under brakes, and that it moved not more than from one to three feet beyond the point where the collision occurred. It is clear, therefore, that if the car had been going a very little slower or the plaintiff a very little faster the plaintiff would not have been injured. The jury was called upon to determine where the fault lay.

I am not prepared to hold that the trial court was in error in advising the jury that the defendant’s agents were bound to take some notice of the known conditions, and to operate the car with some regard for the possibility that the plaintiff would attempt to cross the track ahead of the car. It was precisely what a prudent motorman would do, and, if his testimony is believed, it is what defendant’s motorman did do. The plaintiff testified that he knew a car was coming behind him. He knew that his way lay across the railway tracks. 'All of this is recognized in the instruction which the court gave to the jury. The fault in the instruction is in the intimation, which, with other portions of the charge, I think it conveys, that plaintiff was not required, equally with the motorman, to act with reference to known conditions, including the one that the defendant’s car had the right of way.

Beyond this I am impressed that plaintiff sustained none of the allegations of negligence alleged in the declaration. The declaration contains various allegations of the duty of the defendant and of breaches of duty. The testimony does not tend to prove as a cause of the plaintiff’s injury that the car was operated in disobedience of an ordinance of the city of Detroit, nor to support the allegation that the defendant employed and put in charge of the car incompetent, incautious, reckless, imprudent, and negligent motormen, nor that the car was not run at a lawful and reasonable rate of speed, in compliance with said ordinance.

The alleged breach of duty upon which the plaintiff must rely is the following:

“And the plaintiff further avers that the said defendant on the said day and date aforesaid, by its servants, agents, employés and representatives in a careless, negligent, and grossly careless and improper manner, did then and there operate, propel, run, and move one of its said cars, in, along and upon, and over the said public street, to wit, Michigan avenue at and near the corner of Central avenue, upon its tracks located as aforesaid, and at such a high rate of speed, to wit, thirty miles an hour or thereabouts so as to lose the safe and proper control of the same, thereby and then and there colliding with and running into a certain wagon then and there loaded with lumber, upon which the said plaintiff was then and there lawfully riding, and which wagon was then and there pulled along and upon the said public street and highway at or near the point and location aforesaid, by a team of horses attached to said wagon, and which team was then and there being driven by the said plaintiff in, along and upon the said street at the point and location aforesaid in a westerly direction and in front of said car and in close proximity to the tracks of the said defendant and in plain view and vision of the said defendant, and its motorneer and representatives in charge of the said car when without notice or warning to the said plaintiff, the said defendant and its servants in charge of one of its said cars, then and there carelessly, negligently and in a grossly careless manner propelled and moved the said car with great force and violence against and collided with the lumber then and there sticking out from the rear of the said wagon of the said plaintiff, then and there and thereby striking the said lumber with such force and momentum that it upset and turned the said wagon and lumber over.”

Whether the plaintiff gave no indication that he would cross the track until the car was within about 50 feet of him, as the defendant claims, within which distance it was impossible to stop the car, or whether the motorman made a miscalculation as to his own speed or the speed of plaintiff, or both, there is no testimony tending to prove any gross or wanton negligence on the part of defendant’s agent, and none that he lost safe and proper control of the car. The declaration was amended at the trial by adding the descriptive words:

“While partly across the car tracks which curved northerly at the end of the paved part of Michigan avenue, plaintiff’s loaded wagon was struck by defendant’s car.”

This amendment did not change the theory indicated in the original declaration. We think it unnecessary to notice other assignments of error.

The judgment is reversed, and a new trial granted.

Stone, J., concurred with Ostrander, C. J.

Hooker, J.

The defendant has appealed from a verdict and judgment for $1,000 for injuries alleged to have been suffered through the negligence of defendant’s street car driver or motorman. Michigan avenue, in Detroit, runs west until it reaches the intersection of a street, which is called Lumley street, south of Michigan avenue, and Everett street, north of said avenue. At that point Michigan avenue angles sharply to the southwest, and the car track leaves the center of the street and takes the north side. There is a plank crossing at the intersection. Persons traveling west must cross this if they would turn to the south on Lumley street or continue westerly on Michigan. To turn up Everett street it is unnecessary to cross the track. This will be easily understood from a glance at the plat attached hereto. The plaintiff driving at a walk, what he called a slow team, turned upon the crossing, and his wagon or lumber projecting therefrom was struck by defendant’s car and overturned, and he was injured. The car had been brought so near to a stop that, as all agree, it ran only two or three feet after striking the wagon. Defendant claims that negligence was not proved against it, also that contributory negligence was conclusively proved, or, if not, that the instructions upon that subject were erroneous. We will refer to the question relating to contributory negligence first. Defendant’s counsel offered the following requests:

“(4) I charge you that it was the duty of the plaintiff to look to see if a car was coming before driving upon the track, and if you believe that the plaintiff did not look before driving his team upon the track, and that he did not look until his team was on the track, in such case, I charge you that he would be guilty of contributory negligence, and your verdict must be for the defendant.
“(5) I charge you that if you believe that the plaintiff turned his team upon the track in front of the car when the car was at a point at such a distance from the team that it could not be stopped in time to avoid a collision, that in such case the defendant is not guilty of any negligence in the premises, but the plaintiff is guilty of contributory negligence, and your verdict must be for the defendant, no cause of action.
“(6) The evidence in this case shows that defendant’s car was proceeding along Michigan avenue in a westerly direction, and that the plaintiff was driving on the right-hand side of the street in the same direction. At a certain point the plaintiff attempted to cross the track of the defendant. I charge you that the defendant’s motorman when he saw the plaintiff driving his team westward along the right-hand side of the road and parallel with the track was under no obligation to check the speed of his car, if said speed was a lawful one, nor to stop said car, but was entitled to proceed until something occurred which indicated to him that the plaintiff was going upon the track. There is nothing in this case'to show that the defendant’s motorman knew that plaintiff was going to drive upon the track previous to the time he actually did so. I, therefore, charge you that if you believe that when the plaintiff turned upon the track that it was impossible then to stop the car in time to prevent a collision, that in such case your verdict must be for the defendant.”

The court said:

“I told the jury during the course of Mr. Donnelly’s argument. He said he would ask the court to charge the jury that, unless the driver looked before turning upon the track, he could not recover, he would be guilty of negligence; he has asked me to charge that in a request. Now, I told the jury, I said I could not charge that way; I said that would take the case practically from the jury because at an exact time he did not look, as I remember it, but I would charge the jury that the case would be somewhat different if he was coming down and continued, or started, to cross the track, and if they had no knowledge of it, but they having seen him going on ahead of them, was some knowledge to them that the man was ahead — that is what I was going to charge. I take it out of the ordinary.
“Mr. Donnelly: I think your honor said, if he went upon the track without looking to see if the car was coming, you would not charge them that was negligence.
The Court: Not under this particular case, because they had seen him ahead; I will cover that.
“ I ask you to listen to the requests also stating the defendant’s position: I charge you that, before the plaintiff can recover at all in this case, he must, by a preponderance of evidence, convince you that the collision between his wagon and the car was caused by the negligence of the defendant’s agents, or employes — that would be the motorman in this case — but he must also convince you that he himself on that occasion was not guilty of negligence which in any way contributed to the injury. He must be free from negligence, and the negligence entirely upon the part of the motorman. I transpose that a little, it is my own way of stating it. I charge you again that it was the duty of the plaintiff to look to see if a car was coming before driving upon the track — that is, I do not make the double looking just the moment of driving upon the track, because I leave that to the jury, whether after looking up to see them once he had a reasonable right to believe that the way was clear or that he had time to get over — and if you believe that the plaintiff did not look before driving on the track, then he would be guilty of contributory negligence and he could not recover. I charge you that if you believe the plaintiff turned his team upon the track when the car was such a distance from the team that it could not be stopped in time to avoid collision, and that in such case, the defendant is not guilty of negligence in the premises, but in that case the plaintiff would be guilty of contributory negligence.”

The judge continued:

“I told you yesterday that that is in a case where a motorman came along in the regular way by the side, on a straight track with his car, having had it in control, and a man suddenly starts across the track, without any notice to the motorman, why that is negligence of the plaintiff in that case. He has no right to cross the track suddenly, without any notice; like a man coming in from a side street suddenly driving upon the track, without any chance for the motorman to control the car, then he takes his chances. But here is a case where two men were driving along, and the driver knew the car was back of him, and coming, and the motorman knew the team was ahead of him, and somewhere it must turn upon this; they had some knowledge that there was a curve in that track. Both of them had that knowledge equally, I think, and they had some knowledge that if the man kept on in his regular way that he must cross somewhere, so I will leave that question, going on that curve in a little different way than a man turning square onto a straight track, or onto any track without any notice of the motorman, and I thereby cover the last requests of the defendant. I decline to charge you that the two men in this case were the same as though they had a continuous straight track, each of them a continuous straight road to go on, but I leave it to you whether under the conditions of this peculiar track, coming at the end of the pavement, on the one hand, and coming at the natural course, on the one hand, and going to a change in the course, and the course of the car, on the other hand,' whether the motorman or the teamster was to blame. If the teamster was partly to blame, he cannot recover. If the motorman was all to blame, then the plaintiff can recover.”

At the close of the charge the following occurred:

Mr. Donnelly: May I say something ? Your honor stopped me in arguing to the jury yesterday that if this man turned upon the track without looking to see if the car was coming then in sight — then he would not see it, and I asked your honor, when you charged this morning, to make it very clear, and I ask your honor whether you have changed your mind on that ?
The Court: I have not in any way changed my mind.
“Mr. Donnelly: I understand if a man turns upon the track without looking to see if the car is coming.
The Court: I have not put it that way. I say if a man goes or is going on a straight line, and suddenly turned upon the track; but in this case he claims he was coming in his regular road, and the track itself turned, and he went right straight across the regular way, and both of them knew there was a turn there. It is not an ordinary going across the pavement. I absolutely refuse. I say if he came in on a street suddenly, or on a straight track like Woodward avenue, suddenly turned onto the track, they cannot recover. Here is a different condition, and I leave it to the jury whether, where in this condition, to illustrate both going on the car track, whether they have not both notice.
“Mr. Donnelly: The man was not in duty bound to look before going on the track ?
The Court: I remember he said he has looked once.
“Mr. Donnelly: I do not understand your honor has charged him as looking once.
The Court: I understand the counsel now to narrow it down to the very moment when turning on; the conductor did not look out the very minute before turning on.
“Mr. Donnelly: I mean within view of it.
The Court: We will say within 10 feet. I have no evidence that he did look. The motorman says he did not turn around. The motorman says he did not see him look. He looked towards him and he made no indication, that is all I know. He was not obliged to do any more than he did do.
“Mr. Donnelly: He did not look, and he did not have to.
“The Court: At that immediate moment when they touched the curb.
“Mr. Donnelly: Does your honor hold if he looked a half block that was enough ?
The Court: Yes, if he looked back 400 feet, as he claimed, that was sufficient; if he looked back at Central avenue, that was ample looking.
Mr. Donnelly: I am not quarreling with your honor’s view of the law, but I want to .understand your honor.
The Court: That is what I mean.
“Mr. Forler: If he looked back there at Central avenue?
“Mr. Donnelly: If he looked back a half block before going on the track.”

It was somewhat difficult to determine, from plaintiff’s testimony, just where he was when he first looked for the car or whether he looked twice. He said:

“ Did you see the car ?
“A. Yes; I saw the car. It was a block and a half away from me, and I started to drive over — to come right over.
“Q. How far had you gone when the car struck your wagon ?
“A. About two blocks and a half.”

This is all that he said on direct examination. It is undisputed that he had driven west on this street for a considerable distance. On cross examination he said:

“Q. Did you know this car was coming ?
- “A. Well, I looked around and the car was a block and a half away from me.
“Q. Where were you then ?
“A. I was just going to drive over on the other side of my road.
“Q. You were driving over the track at that time ?
“A. Yes, sir.
“Q. Did you look before you drove over ?
“A. Yes, sir, the car was far enough away so that I could make it, but the car after that was coming pretty fast. * ' * . *
“Q Before the horses went on the track where was the car first ?
“A. A block and a half away from me.
“Q. How do you know that ?
"A. I was looking around and I thought I could make it, to come over yet, but the car came on and struck the hind part of the wagon.
'‘Q. You were driving on the right of way without stopping ?
“A. Yes, sir; I went right ahead.
“Q. So that the car came a block and a half while you were crossing over the track ? (No answer).”

This is substantially all on the subject from plaintiff’s witnesses. Apparently the trial judge understood that he had looked around first some little time before he crossed. The jury may or may not have taken that view of it. On the part of defendant, considerable testimony was given indicating care on the part of the motorman, and that the car was nearly upon him when plaintiff turned his team and drove upon the track.

If the jury believed that just as the plaintiff turned on the track the car was from 200 to 500 feet away, it was for them to determine whether it was reasonable for plaintiff to attempt to cross in front of the car. There was evidence in the case which warranted the leaving that question to the jury under proper instruction.

The plaintiff’s requests are not in the record except as the court gave some of them. One of them should not have been given. We quote it again:

‘'On the part of the plaintiff, I charge you, that if you believe from the testimony that the plaintiff before crossing the tracks of the defendant company looked back and saw the car approaching at or about Central avenue, and thought he would have sufficient time to safely cross, that he cannot be charged with contributory negligence in so attempting to continue upon the course, and it was the duty of the motorman to have his car under control and to stop the car before colliding with the plaintiff.”

It omits any allusion to the reasonableness of the act, and if the subject had been left there it would have been a fatal error. But as can be seen from the whole quotation heretofore given, it was followed by instructions qualifying it.

We think, however, that there is a fatal vice in this charge, in the attempt to distinguish this from cases where the railroad continues in the center of the street. Apparently the judge was of the opinion that because plantiff had to cross the track to continue west the motorman was required to anticipate that he might do so, and have his car under control, and he said:

I told you yesterday that that is in a case where a motorman came along in the regular way by the side, on a straight track with his car, having had it in control, and a man suddenly starts across the track, without any notice to the motorman, why that is negligence of the plaintiff in that case. He has no right to cross the track suddenly without any notice; like a man coming in from a side street suddenly driving upon the track, without any chance for the motorman to control the car, then he takes his chances. But here is a case where two men were driving along, and the driver knew the car was back of him, and coming, and the motorman knew the team was ahead of him, and somewhere it must turn upon this; they had some knowledge that there was a curve in that track. Both of them had that knowledge equally, I think, and they had some knowledge that if the man kept on in his regular way that he must cross somewhere, so I will leave that question, going on that curve in a little different way than a man turning square onto a straight track, or onto any track without any notice of the motorman, and I thereby cover the last requests of the defendant.”

We think that there was no more necessity to slow down the car under such circumstances than in a case where the motorman knows that a man is likely to appear suddenly from a side street from which the car is hidden, or to attempt to cross at any other point. According to defendant’s testimony, the motorman saw this man driving leisurely along. According to custom he rang his gong, yet plaintiff suddenly turned upon or toward the track. Apparently he was in a state of abstraction and did not notice the gong, if this testimony was true. If the motorman then acted without delay, and made every reasonable effort to avert a catastrophe it was all he could do. But this charge would naturally lead the jury to think that he should have acted earlier, upon the assumption that the plaintiff would drive on the track, instead of turning up Lumley street, or, if he desired to cross, taken some pains to ascertain whether it was safe and stopped his team if the car was near. It is not necessary to slow down cars every time a pedestrian or driver of a team is seen upon the road, lest they turn suddenly upon the track in front of the car, and there is no more presumption that a man will cross the track without care where his reason for crossing is due to the track changing from the middle to the side of the road than there is where he does so from a desire to turn off at any street intersection, or to enter an alley or residence drive. Daly v. Railway Co., 105 Mich. 193 (63 N. W. 73); Lyons v. Railway Co., 115 Mich. 114 (73 N. W. 139); Henderson v. Railway Co., 116 Mich. 368 (74 N. W. 525); Merritt v. Foote, 128 Mich. 367 (87 N. W. 262).

We have held in earlier cases that one who would cross a track should look before doing so to ascertain whether it will be dangerous. If he does nothing of the kind, he is guilty of contributory negligence. Many of these cases are cited in the brief of counsel, and are so readily accessible and generally known to the profession as to make it unnecessary to cite them.

We think it unnecessary to discuss other assignments of error. The judgment is reversed and a new trial ordered.

McAlvay and Brooke, JJ., concurred with Hooker, J.

Bird, J.

I concur in the opinion of Mr. Justice Hooker save in that part of it wherein he holds as error the following instruction of the trial court :

“ But here is a case where two men were driving along, and the driver knew the car was back of him, and coming, and the motorman knew the team was ahead of him, and somewhere it must turn upon this; they had some knowledge that there was a curve in that track. Both of them had that knowledge equally, I think, and they had some knowledge that if the man kept on in his regular way that he must cross somewhere, so I will leave that question, going on that curve in a little different way than a man turning square onto a straight track, or onto any track without any notice to the motorman.”

The distinction which the trial court drew between the situation as it appeared there, and the situation where a traveler turns suddenly to cross a track without warning to the motorman, was, in my opinion, well taken. The motorman knew the plaintiff was nearly at the end of the traveled way where he would have to cross the tracks if he kept going in the same direction. The motorman says he expected plaintiff would cross the track at that point or that he was not taking any chances on his not doing so. This situation is decidedly different from one where a traveler turns suddenly and without warning to cross a track ahead of an oncoming car. In one case the motorman is warned by the knowledge that plaintiff must cross, in the other the motorman has no warning of an intention to cross. In my opinion the trial court did well to point out this distinction.

In taking the view that no error was committed by the trial court in giving this instruction, it follows that the case should be affirmed.

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


source: Caselaw Access Project

author: Hooker, J. Moore, J.

license: Public Domain

text:
    OTTINGER v. DETROIT UNITED RAILWAY.
    1. Carriers — Street Railroads — Starting and Stopping Cars.
    Street cars may be started without waiting for passengers to reach a seat, unless there is some special and apparent reason for adopting a different course.

    2. Same.
    To stop a rapidly moving street car that contains standing passengers, for whom there were no unoccupied seats, so suddenly as to break the hold of a passenger upon the back of one of the seats, is not in itself negligent, in the absence of evidence that it was an unusually sudden stop or that plaintiff’s fall was caused by something other than her momentum, resulting from the rapid motion of the car. Moore and Bird, JJ., dissenting.
    Error to Wayne; Donovan, J.
    Submitted October 28, 1910.
    (Docket No. 137.)
    Decided June 2, 1911.
    Case by Mabel Ottinger against the Detroit United Railway. A judgment for defendant on a verdict directed by the court is reviewed by plaintiff on writ of error.
    Affirmed.
    Lehman, Biggs & Lehman and Proctor K. Owens, for appellant.
    Corliss, Leete & Joslyn (Frederic T. Harward, of counsel), for appellee.

       As to starting street car before passenger is seated, see notes in 42 L. R. A. 294, and 4 L. R. A. (N. S.) 558.

   Hooker, J.

The plaintiff, a married woman, in company with another woman, and plaintiff’s husband, boarded one of defendant’s street cars. The car started before she secured a seat; the car being well filled and unoccupied seats few. She caused her lady friend, a guest, to take the first vacant seat she came to, and con-tinned forward in the oar. As she stood holding onto a seat, a passenger moved to make room for her, and she turned to sit down. At that moment the brake was put on to stop the car at a switch, and she fell forward and was injured. She said that the car stopped so suddenly that her hold on the seat was broken, and she was thrown forward against the corner of a seat that she was holding, because the car was shaking so that she could not balance herself. The car was running very fast, though, as she knew, it had but half a block to run before making the required stop. She testified that the stop was sudden, without slowing down. The witnesses agree that the car was stopped abruptly, and that this caused her to fall. The circuit judge directed a verdict for the defendant upon the ground that negligence was not. shown, and plaintiff has appealed.

Counsel for the plaintiff rely upon the cases of Beattie v. Railway, 158 Mich. 243 (122 N. W. 557), and Howell v. Railway Co., 136 Mich. 432 (99 N. W. 406); but we think they are not conclusive of this question. The former related to the starting of a car before the passenger was upon the car, the latter to the failure of brakes to work.

It is a well-known fact that steam and street cars are not so stopped that the standing passengers can avoid the tendency to fall without effort, and the same is true when the car starts. Not only is the making of time prohibitive of such deliberate starting of heavy vehicles as to avoid this, but the variation in the working of brakes prevents absolute uniformity in stopping.

The general rule adopted by the courts is that street railway companies are not required to defer starting cars until all passengers are seated, and that a train or street car “may be started without waiting for a passenger to reach a seat after entering a vehicle, unless there is some special and apparent reason to the contrary.” In the case of Louisville, etc., R. Co. v. Hale, 102 Ky. 600 (44 S. W. 213, 42 L. R. A. 293), this rule was adhered to in the case of a fleshy woman, incumbered with a number of children, when she had an escort with her. For the rule as to steam cars, see Yarnell v. Railroad Co., 113 Mo. 570 (21 S. W. 1, 18 L. R. A. 599); Louisville, etc., R. Co. v. Hale, supra.

There is quite as much justice in the application of the rule to street cars which are usually started as soon as the passengers enter, and in which, for the want of seats, choice, or other reasons, passengers frequently ride standing in the car or on the platform. So common and unavoidable is the overcrowding of street cars that straps are usually provided, and, if these cars could not lawfully be started until all passengers were seated, or if acceleration of and checking speed could not be prompt, the efficiency of such cars would be seriously impaired.

In Massachusetts it was held that a street car company owes no duty to a woman passenger, who is apparently strong and healthy, to wait after she has entered the body of the car, until she is seated, before giving the signal to start, or to notify her that it is about to give such signal. Weeks v. Railway Co., 190 Mass. 563 (77 N. E. 654).

In Herbich v. Railway Co., 65 N. J. Law, 381 (47 Atl. 427), it was held error to refuse to charge that the starting of a car before a passenger is seated is not negligence. This was in the case of injury to a young child thrown from a car after she and her mother had entered it. The rule was applied to a man 70 years old and weighing 220 pounds who was injured while passing from the platform to a seat. Sharp v. Railroad Co., 111 La. 395 (35 South. 614, 100 Am. St. Rep. 488).

The evidence indicates that the plaintiff’s equilibrium was lost by reason of the sudden slowing of the car for its stop. There is no evidence that justifies the belief that it was an unusually sudden stop, or that there was any reason for plaintiff’s falling, but her momentum, which naturally impelled her forward as the car slowed down, and that happens to a greater or less degree every time a car is stopped. No one else in the car seems to have suffered from it. In case of necessity, a motorman must stop his car as speedily as possible, for the unforeseen is ever confronting him. Sudden stops are one of the ordinary conditions of trolley travel and are to be expected and guarded against by the passengers. The motorman cannot know what his passengers are doing and whether they are standing or walking in the car or not, and he must devote his attention to the management of his car in the ordinary way.

In Quick v. Railway, 143 Mich. 443 (107 N. W. 104), we held that a jerk of a car sufficient to throw one standing on the platform to the street was only an incident to the ordinary running of electric cars, and sustained a directed verdict. The same should be said of this stopping of the car. See, also, Bradley v. Railway Co., 94 Mich. 35 (53 N. W. 915); Etson v. Railway Co., 110 Mich. 494 (68 N. W. 298); Schultz v. Railways Co., 158 Mich. 665 (123 N. W. 594, 27 L. R. A. [N. S.] 503); McCauley v. Railway Co., 169 Mass. 301 (47 N. E. 1006).

In Holland v. Railway Co., 155 Mass. 387 (29 N. E. 622), a passenger was thrown from a car by its up and down motion. The court held that there was nothing extraordinary in the motion, although it was so marked as to throw another passenger against the driver. See, also, Stewart v. Railroad Co., 146 Mass. 605 (16 N. E. 466).

It is the normal condition, in rapidly moving cars, that it is difficult for passengers to keep their feet, especially when the cars are stopped or started. In the language of McSherry, J„, in Baltimore, etc., Turnpike Road v. Cason, 72 Md. 381 (20 Atl. 113):

“It is notorious that just such motions as the appellee described, are of frequent and common occurrence in the running of street cars. ‘ Judges cannot denude themselves of the knowledge of the incidents of railway traveling, which is common to us all.’”

In Faul v. Railway Co., 70 N. J. Law, 795 (59 Atl. 148), it was said:

“ The controversy was therefore narrowed to the alleged negligent conduct of the motorman in releasing his brake or in turning on the power, or both, after leaving the switch where the car had stopped. * * * Admitting, for the sake of the discussion, that the slowing up of the car to avoid the wagon and the increase of speed after clearing the obstruction may not have been done skillfully, it by no means follows that it was done negligently. There is a wide difference between want of skill and negligence. * * * In order to resume his progress after ‘ slowing up ’ and avoiding the wagon, he was, of course, compelled to turn on his power and release his brake, the effect of which was to cause the plaintiff’s witness, who was standing, to swing to the side ‘a little bit’ or ‘fall a little to the side.’ No court certainly of this State has yet declared that such an effect justified an inference of negligence in car operation against the carrier.”

There is nothing in this case to show any negligence on the part of the company, or, as the learned circuit judge said, to treat this other than as a casualty for which defendant was hot to blame.

The judgment is affirmed.

Ostrander, C. J., and MoAlvay, Brooke, Blair, and Stone, JJ., concurred with Hooker, J.

Moore, J.

( dissenting). This action is brought to recover damages for injuries received by plaintiff, a married woman, who claims she was violently thrown forward and down while a passenger, because of the negligent stopping of the car by the motorman. At the conclusion of the testimony the trial judge directed a verdict in favor of defendant.

The only question necessary to discuss is whether the case should be decided as a matter of law, or whether, as plaintiff claims, it should have been submitted to the jury.

The plaintiff, with her husband and a friend, took a car going south on Oakland avenue at Chandler avenue. There are two tracks on Oakland avenue. Cars going toward the city use the west track, and cars going out to the city limits use the east track. The car they took was a closed car with seats running across it, and an aisle along the right-hand side of the car to one facing the front. There were no straps or anything to hang to above that aisle in that car.

Plaintiff’s account of the accident is as follows:

“ There are two tracks on Oakland avenue. Cars going toward the city use the west track, and cars going out to the limits use the east track. The car we took was a closed car with seats running across it, and the aisle on one side. The aisle was on the right-hand side of the car to one facing the front, going toward the city. There were no straps or anything to hang to above that aisle in that car. When my husband pushed me through the door, I saw but one vacant seat, and I told my friend to take that; I was more used to the cars than she was. * * * After inviting her to take that seat, I tried to work forward from the side door. * * * I worked toward the front and took hold of the back of the front seat facing the motorman, and somebody made room for me on the end of the seat, and I was trying to turn around so that I could sit down. I intended to sit on the seat that faces the motorman, the one looking south. I had my hand on the back of that seat. Just as I was turning around, before I had a chance to turn around and sit down, the car stopped so suddenly it broke my hold and threw me forward and struck me right there in that breast (indicating) against the corner of the front seat where you sit with your back toward the motorman, I struck against the corner nearest the door, and that hit me right under the left breast, and then I bounced back, and it struck me down at the lower part of the spine. The seat back of me, the one I was intending to sif in, struck my spine. Then I went down on the floor, and I tried to save myself and sprained my right thumb. I could not have had my hand on the seat long before I fell. It was just as soon as I could get hold of it after I got into the car, but the car was shaking so I could not balance myself, and I took hold of that to hold myself from falling.
“Q. Was the car in that rocking position from the time you got into it ?
“A. The car seemed to be going so fast I could hardly keep myself on my feet, and I reached and got hold of the back of that seat. When I fell I fell right between those seats where I was going to sit.”

Part of the cross-examination is as follows:

“Q. You got on the car all right F
“A. Yes, sir; with the assistance of my husband.
'‘Q. And the accident happened when you got on the car all right ?
“A. It happened when it stopped at Clay. I got up the steps all right. I say it stopped at Clay.
“Q. Do you know what made it jerk ?
“A. Going so fast and stopping so suddenly.
“Q. Did you see the motorman stopping it suddenly ?
“A. I did not look at the motorman; I knew the car stopped suddenly.
“Q. You do not know what made it; you did not run into anything ?
“A. No, sir; he had run up there where it was going to stop, and he did not slow up, and in fact going so fast he could not stop anyway. I did not fall before I got hold of the seat. I had hold of it a few seconds, and when it stopped it broke my hold and threw me forward. * # *
“Q. And did any one else lose their balance ?
“A. I have been told.
“Q. Never mind, did you see any one ?
“A. Yes, sir; I saw them staggering. I did not see them fall. My husband did not fall. He was against the back of the seat my friend was in.”

Another witness testified, in part, as follows:

tc We walked up to Chandler to get a seat. I got on the car first and walked towards the front, and there was only one seat, and I wanted Mrs. Ottinger to sit down, and she said, ‘No, you sit down,’ and I sat down, and she was holding on to the front of that seat, and someone made room, but she was holding on, and as she went to swing herself around, as near as I can remember it, the sudden stopping of the car broke her hold loose from the back of this seat, and she hit the seat against the front end of the car, and she arose, and it threw her against the seat she intended to sit on and down onto the floor, and onto her hand, which doubled up something like that (illustrating). * * * At the time she fell I had a very good brace, for I was seated and had my hand on that seat in front of me. I moved in my seat and struck my knees. It gave me quite a shaking; but, owing to my brace with my left hand, I could not have fallen out.”

There was other testimony to the same effect, and that it was a short block to Olay street from Chandler, and that there were a number of people at Olay street to get on, who could easily be seen from Chandler avenue.

There was testimony that there was no emergency calling for the sudden stoppage of the car, and that its stoppage was caused by the application of the brake by the motorman.

It will be observed that the accident was not caused by starting the car after plaintiff had boarded it, and before she could get a seat; but it was caused by its abrupt and sudden stoppage.

In Howell v. Railway Co., 136 Mich. 432 (99 N. W. 406), Justice Hooker, speaking for the court, said:

“ The defendant owed to its passengers a high degree of diligence and care in transporting them, and that involved the character of the rolling stock. It is not to be expected that a passenger can easily prove the exact particular in which the locomotive which draws his train is defective, or where the bridge which gives way with the train was weak, or the exact particular in which the company is wanting in diligence to prevent or avert a catastrophe. Therefore, in such cases, the circumstances of the accident may sometimes justify an inference of negligence. This was a question which it was proper for the court to leave to the jury, under the circumstances shown.
“ The same may be said of the competency and conduct of the motorman. There was testimony tending to show that the motorman did not know that he could stop the car by reversing the motor; that his tutelage had been brief; and, although there was proof showing the opposite, the question was one for the jury. Again, there was testimony tending to show that he did not turn off the current, and that he lost his judgment and did not know what to do in the emergency. The passenger is entitled to reasonable protection against all of these dangers, and it is not necessarily a defense that the motorman was confronted by an imminent and unexpected danger, whereby he lost his usual ability to control the car. While proper allowance should be made for such conditions, it is the duty of those who run cars and trains to put them in charge of competent men, and a reasonable degree of presence of mind may be an essential to competency.”

In Beattie v. Railway, 158 Mich. 243 (122 N. W. 557), Justice McAlvay, speaking for the court, said:

“The degree of care required to be exercised by carriers of passengers upon steam railways in securing the safety of passengers entering or alighting is ‘ the highest care, or the care which a very prudent person would have used under the circumstances.’ This rule is also applicable to street cars.
“ It is the duty of the street car to stop for the purpose of taking on or letting off passengers.
“ ‘ The time of stoppage must be such as to enable the passenger attempting to get on or off to reach a place of safety, either on the street, or in the car, before it is started.’ 6 Gyc. pp. 611, 615, 616, and cases cited.
“ See, also, Selby v. Railway, 141 Mich. 112 (104 N. W. 376); Burke v. Electric Co., 147 Mich. 172 (110 N. W. 524). The carrier is liable for injuries to a passenger caused by a disregard of this duty. We find no authority to the contrary.”

It is a matter of common knowledge that a modern street car driven with its electric motor, and equipped with its air brake, is much more easily controlled than the cars which were drawn by horses and mules and equipped with a hand brake. The cars are made to carry the middle aged and the clumsy as well as the young and agile, and they have a right to board them, and, if in the exercise of due care, to be carried safely. We do not think it can be said as a matter of law that a passenger who is compelled to stand because there are not sufficient seats, and has hold of the back of a seat and is thrown violently forward against another seat by the sudden application of the brakes, which has the effect of stopping the car abruptly, there being no sudden emergency, is without remedy. I think the case ought to have been submitted to the jury under proper instructions.

Judgment should be reversed, and a new trial ordered.

Bird, J., concurred with Moore, J.


author: Brooke, J. Blair, J.

text:
    VAN LEUVEN v. INGHAM CIRCUIT JUDGE.
    Infants — Juvenile Delinquents — Criminal Law — Appeal from Probate Court.
    From special proceedings in probate court relating to juvenile delinquents, under Act No. 6, Extra Session 1907, and Act No. 310, Pub. Acts 1909, no appeal lies; the statute providing for appeals generally from orders of the probate court, 1 Comp. Laws, § 669, not applying to such proceedings. Blair and MoAlvay, JJ., dissenting.
    Mandamus by Eva Yan Leuven to compel Charles B. Collingwood, one of the circuit judges for the county of Ingham, to vacate an order dismissing an appeal from an order of the probate court committing the relator to the Industrial School for Girls at Adrian.
    Submitted December 1, 1910.
    ( Calendar No. 24,313.)
    Writ denied June 2, 1911.

      S. B. Roe and George R. Heck, for relator.

      Franz O. Kuhn, Attorney General, and Walter 8. Foster, Prosecuting Attorney (Arthur P. Hicks, of counsel), for respondent.
   Brooke, J.

This is an application for a mandamus to compel the circuit court of Ingham county to entertain jurisdiction of an appeal from the probate court of said county, in a matter arising under Act No. 6 of the Extra Session of 1907, as amended. Relator, a child of 15 years of age, was proceeded against under the provisions of said act. She was tried by a jury and found to be a “delinquent child,” whereupon the probate court committed her to the Industrial School for Girls at Adrian, until she shall arrive at the age of 21 years. Relator thereupon perfected an appeal to the circuit court, which appeal was, on motion, dismissed. Relator contends that an appeal lies by virtue of section 669, 1 Comp. Laws:

“In all cases not otherwise provided for, any person aggrieved by any order, sentence, decree or denial of a judge of probate, may appeal therefrom to the circuit court for the same county,” etc.

Jurisdiction in juvenile matters was conferred upon probate courts throughout the State by Act No. 6 of the Extra Session of 1907, except in three counties. By the Constitution of 1909, Art. 7, § 13, original jurisdiction in all cases of juvenile delinquents and dependents was conferred upon probate courts and the judges thereof. Following the adoption of the Constitution, the “juvenile act,” so called, was amended by Act No. 310 of the Public Acts of 1909, so as to conform with the Constitution as to jurisdiction. Neither in Act No. 6, supra, nor in the amending Act No. 310, supra, is there any provision for an appeal from the finding or determination of the probate court to the circuit court.

It is urged by relator that, in passing the two acts in question, the legislature must be presumed to have acted with knowledge of the existence upon the statute books of section 669, 1 Comp. Laws, which was evidently considered sufficient for the protection of those desiring to appeal. We have no doubt that it may be presumed that the legislature had such knowledge; but we do not think it necessarily follows that it was believed that that section provided for an appeal in juvenile matters. A careful review of the act as amended leads to the conclusion that the legislature sought, by its enactment, to provide in a humane manner for the care of unfortunate children who, by reason of immoral environment and lack of healthy restraining home influences, were found to be committing offenses against law and decency. The proceeding provided by the statute is not criminal in character and is intended to be solely in the interest of the child and of the community, which profits if its youth are reared amid moral and industrious surroundings, and suffers if they are permitted to grow up among the idle and vicious.' Taking this view of the purpose of the legislation and examining the act itself, we are constrained to hold that it was not intended by the legislature that an appeal should lie. Several considerations impel us to this view. In the first place, the only judicial officer clothed by the act with the power of exercising discretion in the care and disposition of a juvenile delinquent is the probate judge. He, and he alone, may determine whether the child shall be returned to its parents or guardians, placed upon probation, or committed to one of the several institutions named in the statute. No machinery is provided for guarding the interests of the child upon appeal. If an appeal be allowed, it must be to the circuit court, a court of general criminal jurisdiction, where the delinquent must be tried in accordance with the general rules of criminal procedure. This is wholly at variance with the spirit and tenor of the act. Weight is added to this view when we consider that the act itself provides that, in certain specified cases, the delinquent may, at the discretion of the probate judge, be proceeded against in the ordinary criminal courts.

The right to an appeal is entirely statutory. In Sullivan v. Haug, 82 Mich. 548 (46 N. W. 795, 10 L. R. A. 263), it is said:

“No person has a constitutional right to a second trial, after having been duly convicted before a court of competent jurisdiction, by an appeal to another tribunal; neither is there an inherent right to appeal from a judgment of an inferior to a court of superior jurisdiction for the purpose of securing a second trial upon the merits. The right to an appeal is and always has been statutory, and does not exist at common law. If is a remedy which the legislature may in its discretion grant or take away, and it may prescribe in what cases, and under what circumstances, and from what courts, appeals may be taken; and, unless the statute expressly or by plain implication provides for an appeal from a judgment of a court of inferior jurisdiction, none can be taken” — citing many cases.

In considering the effect of section 669, 1 Comp. Laws, with reference to condemnation proceedings (U. S. Gypsum Co. v. Kent Circuit Judge, 150 Mich. 668 [114 N. W. 666]), this court said:

' ‘ It is the general rule that, unless the statute expressly gives an appeal, there is no appeal; nor can a review be had by writ of error in special or extraordinary proceedings, not according to the course of the common law ”— citing cases.

In Sparrow v. Ingham Circuit Judge, 109 Mich. 272 (67 N. W. 112), it was held that an appeal did not lie, under the section in question, from an order committing a person to the insane asylum.

We have reached the conclusions herein expressed with some difficulty, for, though humane in its purpose and reformatory rather than punitive, the act confers a very broad authority upon the probate judge, and it cannot be doubted that a commitment to one or other of the institutions named in the act involves restraint of the liberty of the delinquent, accompanied by a certain odium which will always attach to the individual so committed. This, however, is the lesser of two evils in cases where commitment is proper. If an error is committed, as to the fact of delinquency, the result would be truly unfortunate. It is to be presumed, however, that the legislature gave due consideration to this contingency, and, after such consideration, enacted the law in its present form. Our opinion as to the wisdom of this feature of the law is a matter of no consequence. It is the duty of courts to construe, not make, the law.

The writ must be denied.

Ostrander, C. J., and Bird, Hooker, Moore, and Stone, JJ., concurred with Brooke, J.

Blair, J.

(dissenting). This is an application for mandamus to compel the circuit court of Ingham county to entertain jurisdiction upon an appeal from the probate court of said county in a proceeding under Act No. 6, Extra Session 1907, as amended by Act No. 310, Pub. Acts 1909. Relator, a child of 15 years of age, was proceeded against under the provisions of said act. She was tried by a jury and found to be a delinquent child, whereupon the probate court committed her to the Industrial School for Girls at Adrian until she should arrive at the age of 21 years. Relator thereupon perfected an appeal to the circuit court, which appeal was, on motion, dismissed. Relator contends that an appeal lies by virtue of section 669, 1 Comp. Laws, which provides that:

“In all cases not otherwise provided for, any person aggrieved by any order, sentence, decree or denial of a judge of probate, may appeal therefrom to the circuit court for the same county,” etc.

The sole question presented to us for our determination is whether said section 669 applies to determinations of the probate court under said Act No. 6, Ex, Sess. 1907, as amended. A similar act, being Act No. 312, Pub. Acts 1905, entitled “An act to regulate the treatment and control of dependent, neglected and delinquent children and to establish juvenile courts,” was before this court for consideration and was held to be unconstitutional for reasons not affecting the present act. Hunt v. Wayne Circuit Judges, 142 Mich. 93 (105 N. W. 531, 3 L. R. A. [N. S.] 564). At a special session of the legislature of 1907, the said Act No. 6, under which these proceedings are had, was enacted, entitled—

“An act to define and to regulate the treatment and control of dependent, neglected and delinquent children; to prescribe the jurisdiction of the probate courts and the powers, duties and compensation of the probate judges with regard thereto; to provide for the appointment of county agents and probation officers and to prescribe their powers, duties and compensation.”

The counties of Houghton and Marquette and the city of Detroit were excepted from the provisions of the act.

In March, 1908, this court held the Wayne county juvenile court act of 190?, Local Act No. 684, unconstitutional in so far as it attempted to provide for the trial of offenses against children punishable as crimes by a jury of six. Robison v. Wayne Circuit Judges, 151 Mich. 315 (115 N. W. 682).

In 1909, sections 1, 5, 9, 11, and 13 of Act No. 6, Extra Session 1907, were amended, and by section 13 “all acts or parts of acts inconsistent herewith, whether local or general, are hereby repealed.”

The applicability and interpretation of said section No. 669, 1 Comp. Laws, has so frequently been passed upon by this court that it only becomes necessary to examine our own decisions to ascertain whether the instant case falls within its provisions.

In Goss v. Stone, 63 Mich. 319 (29 N. W. 735), it was held that an appeal lies, under this section, to the circuit court from the order of the probate court appointing a general guardian for a minor. Chief Justice Campbell, who wrote the opinion of the court in that case, speaking of this section, used the following language:

“ This language is broad enough to cover any order whatever, and must unquestionably cover any order which affects the merits of a proceeding. The only exceptions practically recognized have been such interlocutory and subsidiary orders as are made during the pendency of suits or proceedings, and which end with or before them. Such instances occur in the appointment of guardians ad litem ( Walker v. Hull, 35 Mich. 488), temporary allowances of some kinds ( Moore v. Moore, 48 Mich. 271 [12 N. W. 180]), and the usual orders and directions regulating the current procedure. * * *
But it is impossible to create an exception to the right of appeal in any case where the order complained of is a principal matter of jurisdiction, and not a mere step in something else. The appointment of a permanent guardian is one of the most important things that can happen to an infant, involving the custody of all property, and, where there are no parents, generally involving also the control of the. person. In all countries this jurisdiction has been regarded as of the highest importance. In England it was vested in the highest court in the realm, and, while in this country it has frequently been placed in courts exercising probate powers, it has never been considered as not within judicial supervision in some way, and has generally been put in courts from which an appeal lies involving a rehearing on the merits.”

In Cole v. Cole’s Estate, 125 Mich. 655 (85 N. W. 113), it was held that an order fixing the amount to be paid by executors under the will was an appealable order, quoting in support of the opinion from Goss v. Stone, supra.

In Hopper v. Livingston Probate Judge, 137 Mich. 124 (100 N. W. 266), an order of the probate court denying a petition to compel a guardian to account was held to be an appealable order, under this same section; the court citing Goss v. Stone.

The case was again cited with approval in Erwin v. Ottawa Circuit Judge, 138 Mich. 271 (101 N. W. 537); Mr. Justice Hooker, writing for the court, saying in that case, after quoting from Holbrook v. Cook, 5 Mich. 230:

“We have frequently since held it inapplicable to orders made by the probate court. Thus, in Walker v. Hull, 35 Mich. 488, it was held that an order appointing a special administrator was not reviewable, though one appointing a general guardian is for obvious reasons. See Goss v. Stone, 63 Mich. 319 (29 N. W. 735). While in that case the court carefully preserved the right of appeal from orders affecting the merits of a proceeding, it is said that the exceptions include ‘ such interlocutory and subsidiary orders as are made during the pendency of suits or proceedings, and which end with or before them,’” etc.

It may be considered as settled, therefore, that any order which affects the merits of a proceeding and is a principal matter of jurisdiction within the scope of the general jurisdiction of the probate court is appealable, under the section in question.

That the determination in the present case is a determination upon the merits and fraught with the most important consequences to the State and to the minor is too plain to require discussion. In comparison with the effect upon a child of a determination of delinquency, the appointment of a general guardian sinks into insignificance. It only remains to consider whether it is within the scope of the general jurisdiction of the probate court.

Section 13 of article 7 of the Constitution of 1909 reads as follows:

“Sec. 13. In each county organized for judicial purposes, there shall be a probate court. The jurisdiction, powers and duties of such courts and of the judges thereof shall be prescribed by law, and they shall also have original jurisdiction in all cases of juvenile delinquents and dependents.”

A mere reading of this provision answers the question proposed. The probate court, as a court, is given original jurisdiction over cases like the present, of which it cannot be deprived by any power save that of the people by way of an amendment to the fundamental law. The proceedings under the act in question as amended are judicial in their character, and have all the essential characteristics of a trial in a court of common law.

Section 1 of the act (No. 6, Ex. Sess.), after defining a “delinquent child” to include “any boy or girl under 17 years of age who violates any law of this State or any city or village ordinance, or who is incorrigible,” etc., provides:

“Any child committing any of the acts herein mentioned shall be deemed a juvenile delinquent person and shall be proceeded against as such in the manner hereinafter provided.”

Section 2 provides:

“The probate court shall have original jurisdiction in all cases coming within the terms of this act, and while proceeding under this act shall be termed juvenile division of the probate court. In all trials under this act, any person interested therein may demand a jury of six, or the judge of his own motion may order a jury of the same number to try the case, and the jury so ordered shall be summoned and impaneled in accordance with the law relating to juries in courts held by justices of the peace."

Section 3 provides for the place of holding the trials:

“ The proceedings and finding of the court in all examinations and trials of such cases shall be entered in a book or books to be kept for that purpose and shall be known as the Juvenile Eecord.”

The section further provides for a place of detention pending the trial, and further:

“Any child held in said place of detention shall have the right to give bond or other security for its appearance at the trial of such case, and the court may, in any such case, appoint counsel to appear and defend, on behalf of any such child, who shall be paid out of the general fund of the county or city for such services, such sums as the court shall direct: Provided, that the prosecuting attorney shall appear for the people when ordered by the court.”

Section 5 provides for the filing of a sworn petition upon knowledge or information and belief, showing the facts constituting the child a delinquent child within the meaning of the act, and if, after investigation by the county agent or probation officer, it shall appear that the public interest and the interest of the child will be thereby Sub-served—

“A summons shall issue reciting the substance of the petition and requiring the person or persons having custody or control of the child, or with whom the child may be, to appear with the child at a place and time which shall be stated in the summons.”

And the appearance of the person so summoned may be enforced by contempt proceedings.

“On the return of the summons or writ, or as soon thereafter as may be, the court shall proceed to hear and dispose of the case upon such testimony as may be produced. * * * If the child be found to be wilfully wayward and unmanageable, and in any case upon the adjudication of delinquency, if, in the judgment of the court, the welfare of the child and the interests of the public require, the court may cause him or her to be sent to the Industrial School for Boys at Lansing or the Industrial Home for Girls at Adrian or to any State institution authorized by law to receive such boy or girl,” etc.

By section 6:

“Whenever any child under the age of seventeen years is arrested, with or without a warrant, such child shall be taken immediately before the juvenile division of the probate court, and the officer making the arrest shall immediately make and file*a petition against such child as hereinbefore provided; and the said court shall proceed to hear and determine the matter in like manner as herein-before provided.”

It is contended, however, that this case is ruled by Sparrow v. Ingham Circuit Judge, 109 Mich. 272 (67 N. W. 112). I do not agree with this contention. In that case the proceedings were had under Act No. 204 of the Public Acts of 1895, entitled — ■

“An act to amend section 21 of Act No. 220 of the Session Laws of 1889 entitled, An act to amend sections 21 and 22 of Act No. 135 of the Public Acts of 1885, entitled, ‘An act to amend, revise and consolidate the laws organizing asylums for the insane and regulating the care and management thereof, ’ ” etc.

As remarked in the opinion in that case:

“ The authority conferred upon the probate judge is not found in a statute providing for the organization and prescribing the jurisdiction and duties of judges of probate and probate courts. The title of the act in which it is incorporated relates to the organization of asylums for the insane, and the regulation of their care and management. The legislature might, with equal propriety, have provided for a board of physicians, or authorized any other officer or tribunal to hold the inquest. This has been frequently done. Where a person has escaped indictment, or been acquitted of a criminal charge on the ground of insanity, the court is required to make a further examination, and, upon ascertaining that his insanity continues, may order him sent to an asylum. So, if a person is in confinement under indictment or sentence of imprisonment on a criminal charge, or on civil process, the circuit court commissioner of the county, or, in his absence, the judge of the circuit court, is charged with the duty of holding the inquest. 1 How. Stat. §§ 1908-1910. The statute makes no provision for appeals in these cases, and none has ever been supposed to exist.”

As hereinbefore shown, the authority conferred in the instant case comes from the Constitution itself and the statute in execution of its terms “providing for the organization and prescribing the jurisdiction and duties of judges of probate and probate courts.” The legislature might not with equal propriety or with any propriety at all have provided for a board of physicians or for any other board or tribunal than the one specified in the Constitution, and the proceedings under the act are named and actually constitute a trial and not an inquest. So far as concerns the reasons so strongly set forth in the Sparrow Case indicating that the legislature would not be likely to provide for an appeal, those reasons have been weighed and found wanting by a subsequent legislature, which established the rule of public policy for this State that it is better that many insane persons should suffer inconvenience than that one sane person should be deprived of the right to appeal.

Again, it is contended that this is a special proceeding, and since the right of appeal is entirely statutory, and no such right is conferred by the statute, the general probate statute of appeals does not apply. I cannot agree with this conclusion. This statute is no more a special proceeding than proceedings for the probate of wills or for the settlement of the estates of deceased persons and of guardians; in fact, the proceedings are somewhat analogous to proceedings for guardianship, since the statute provides for decreeing the child to be a ward of the court. But, however that may be, these proceedings are not special in the sense that they are outside of the regular exercise of the jurisdictional powers of the probate courts since the new Constitution, but are directly within it and a part of its usual and regular functions as a court. There was no need of any provision in the statute, since it plainly comes within the general statute, unless we are to overrule the cases hereinbefore referred to.

In my opinion, therefore, the writ of mandamus should issue.

McAlvay, J., concurred with Blair, J.


author: Bird, J.

text:
    TRAVIS v. MCBRIDE.
    Receivers — Corporations—Dissolution—Debtor and Creditor —Execution Levy — Priority or Receiver’s Title.
    A receiver of a corporation in process of voluntary dissolution under 3 Comp. Laws, chap. 300, takes the corporate assets subject to the liens of creditors who have levied execution thereon subsequent to the filing of the petition for dissolution and before the date of the receiver’s appointment.
    Appeal from Clinton; Searl, J.
    Submitted'January 19, 1911.
    ( Docket No. 117.)
    Decided June 2, 1911.
    Petition by the officers of the Michigan Milk & Food Products Company for its voluntary dissolution. Frederick A. Travis, having been appointed receiver, filed a petition to set aside certain execution levies of James N. McBride and other judgment creditors on corporate assets. From a decree for petitioner, defendants appeal.
    Reversed.

      Walbridge & Kelley, for petitioner.

      Kilpatrick & Pierpont, for defendants.
   Bird, J.

The defendants, being creditors of the Michigan Milk & Food Products Company, commenced suits, obtained judgments, and made levies upon the real and personal property of that corporation in the interim between the date of filing a petition for its dissolution and the date of the order dissolving it and appointing a receiver of its assets. The application for a receiver was made under the statute for the voluntary dissolution of corporations, for the reason, as alleged in the petition, that said corporation had been and was unable to carry out the object and purpose of its incorporation. Chapter 300, 3 Comp. Laws. Upon the appointment of complainant as receiver, the question at once arose between him and the defendants as to whether the levy gave the defendants rights superior to his in the property levied upon. Not being able to agree, the receiver filed this petition to have the matter determined. After a hearing on the petition, the trial court made an order setting aside the liens. From that order the defendants have appealed.

The proceeding to dissolve this corporation and wind up its affairs is a statutory one, and the respective rights of the parties must be determined from the statute. The petition was filed on October 9, 1909. The order dissolving the corporation and appointing the complainant receiver was made on January 19, 1910. The receiver qualified and filed his bond on the same day. The suits were begun after the petition was filed, and proceeded to judgment and levy before the appointment of the receiver. The statute provides that—

“ Such receivers shall be vested with all the estate, real and personal, of such corporation, from the time of their having filed the security hereinbefore required, and shall be trustees of such estate for the benefit of the creditors of such corporation, and of its stockholders.” 3 Comp. Laws, § 10861.

It is the claim of the defendants that this statute fixes the time when the receivers shall become vested with the title to the property, and that up to the time of the appointment and filing of the security the creditors have a right to make levies upon the property, and that, when the receiver becomes vested with the title, it is subject to the liens which may have been placed upon it before that date. It is contended on behalf of the receiver that all levies and liens placed upon the property after the petition is filed become void upon the appointment of the receiver; that the appointment has relation back to the date of the filing of the petition. The statute fixes the time with certainty when the property shall vest in the receiver, namely, when he furnishes security for the faithful discharge of his trust. When the statute so fixes the time, we cannot with propriety say that it shall vest at some other time.

It is argued that, if the law is to be so construed, the act will be of little force in case of the dissolution of insolvent corporations, as the creditors will seize all the assets after the petition is filed and before the appointment is made. It is not unlikely that counsel are right in this conclusion, and we agree with them that the interest of all creditors would be better conserved if the appointment could relate back to the date of the filing of the petition; but the question is not one for construction, as it might have been had the law been silent as to the time when the property should vest. The legislature did not see fit to leave it an open question, but foreclosed it by fixing the exact time when it should take place, and with that we must be content until the legislature decrees otherwise.

It is our conclusion that the complainant, upon his appointment as receiver, took the title to the assets subject to the liens of the defendants.

The order of the trial court will be reversed, and one entered in accordance herewith.

Ostrander, 0. J., and Hooker, Moore, and MoAlvay, JJ., concurred.


author: McAlvay, J.

text:
    RODGERS v. HUNTLEY.
    1. Probate Courts — Drains—Eminent Domain — Rehearings.
    Probate courts being of limited statutory jurisdiction, and the statute authorizing rehearings (Act No. 271, Pub. Acts 1905) being an amendment to the statute conferring jurisdiction only as to the settlement of the estates of deceased persons, of minors and of others under guardianship (1 Comp. Laws, § 651), no authority was conferred by such amendment to grant rehearings in special proceedings for the laying out of drains or in similar special proceedings.
    2. Drains — Eminent Domain — Jury—Irregularities.
    Proceedings to take private property for a drain were void, where no opportunity was given to persons interested to appear and demand a jury as required by 2 Comp. Laws, §§ 4325, 4326, and where no proper approval of the final order of determination was secured in accordance with a resolution of the board of supervisors of the county in which the proposed drain was situated requiring the approval of a majority of the persons liable to be assessed for the construction thereof.
    Appeal from Cass; Coolidge, J.
    Submitted February-14, 1911.
    (Docket No. 1.)
    Decided June 2, 1911.
    Bill by Lyman Rodgers and others against G. Gordon Huntley and others, to set aside certain proceedings in probate court to lay out and construct a drain, and for an injunction and other relief. From a decree for complainants, defendants appeal.
    Affirmed.

      Charles E. Sweet, for complainants.

      Coy W. Hendryx (Hendryx & Hosier, of counsel), for defendants.
   McAlvay, J.

The bill of complaint in this cause was filed by 75 complainants against defendants who ai’e drain commissioners for Cass and Berrien counties, and a drain contractor, to declare null and void certain proceedings purporting to locate and establish a certain drain to lower the water three feet in Smith’s Lake located in said counties, and to enjoin said defendants from constructing such drain, and from interfering with the property rights of complainants or any of them, and from interfering in any manner with the waters in said lake. The proposed drain was to be 10,022 feet long, and passed over the lands of two of the complainants for more than half its length. All of the complainants are interested as residents and freeholders, at and in the vicinity of Smith’s Lake.

It will not be necessary to set forth in detail the facts upon which complainants relied for relief. Their claim was that the proceedings to locate and establish this drain were void; that the drain proposed was unnecessary; that the old outlet which had been blockaded, without right by some of those active in securing the proposed drain, if properly cleared out, was ample to care for the drainage from the lake; that there was no authority to lower the lake; that the proposed lowering of Smith’s Lake three feet was an unlawful interference with the rights of riparian owners, and would ruin the lake and irreparably damage their property, and by exposing a large area of mud bottom would create a menace and danger to the public health. It was further claimed that the probate court by quashing the proceedings lost all jurisdiction of the case; that the order made on motion to vacate the order quashing the proceedings was void; that no opportunity was given land owners over whose premises the drain was to be built to demand a jury of freeholders; that the drain commissioners had no authority to let the contract unless the same was approved by a majority of those liable to assessment for benefits. Defendants answered traversing the allegations of the bill. The case was heard and a decree granted in favor of the complainants and defendants have appealed.

From an examination of the record we are satisfied that complainants established every material allegation of their bill. We need not discuss all of the irregularities pointed out by them.

The order made by the probate court August 14, 1905, quashing and dismissing the proceedings finally disposed of this case unless it was revived by later proceedings. Defendants rely upon Act No. 271, Pub. Acts 1905, as authority for granting a motion made to set aside said order. This act amends section 651, 1 Comp. Laws, to read as follows:

“ Sec. 6. The judge of probate shall have jurisdiction of all matters relating to the settlement of the estates of such deceased persons, and of such minors and others under guardianship, and to that end may, upon the filing in said court of a petition therefor within ninety days of the original hearing or of the rendering or making of such order, sentence or decree, as the case may he, and after due notice to all parties interested, grant rehearings and may modify and set aside orders, sentences and decrees rendered in such courts Provided,” etc.

This amended section follows section 650, 1 Comp. Laws, which creates and describes the general powers of probate courts, as follows: To probate wills; grant administration of estates of deceased persons; to appoint guardians to minors and other persons; and a general provision “to have and exercise all such other powers and jurisdiction as are or may be conferred by law.”

These are not courts of law strictly speaking. They are courts of limited statutory jurisdiction established primarily to administer “the estates of deceased persons and care for the persons and property of those under disability and liable to wardship.” Holbrook v. Cook, 5 Mich. 225; Detroit, etc., R. Co. v. Livingston Probate Judge, 63 Mich. 676 (30 N. W. 598); Hitchcock v. Genesee Probate Judge, 99 Mich. 128 (57 N. W. 1097); Grand Rapids, etc., R. Co. v. Chesebro, 74 Mich. 466 (42 N. W. 66).

These sections 5 and 6, as far as material to this case, except the amendment above quoted, were contained in the Revised Statutes of 1846, chap. 91. The construction of the act of 1905 upon this question is for the first time before this court.

This act of 1905 became operative September 17, 1905. It is amendatory to section 651, supra, which gave to probate courts “jurisdiction of all matters relating to the settlement of the estates of such deceased persons, and of such minors and others under guardianship.” It for the first time in the history of the State gives jurisdiction to probate courts to grant rehearings, and to modify and set aside orders, sentences, and decrees rendered in such courts. It is a radical change in the well-settled policy of the State in the matter of the jurisdiction of such courts. The claim of the defendants is that this amendment is intended to cover all orders, sentences, and decrees of probate courts in all cases which by provision of law may be heard in such courts.

From time to time the legislature under authority of the State Constitution has given to probate courts jurisdiction to entertain proceedings in matters entirely foreign to the jurisdiction primarily given as recited in sections 650 and 651, 1 Comp. Laws, supra. Condemnation proceedings under the right of eminent domain and drain proceedings may be mentioned as two of the most important extensions of jurisdiction. We find no indication in this amendment under construction of a legislative intent to extend its operation beyond the intention as expressed, which we find to be restricted. The original provision of section 651 is that—

“The judge of probate shall have jurisdiction of all matters relating to the settlement of the estates of such deceased persons, and of such minors and others under guardianship.”

This refers to the estates, the minors, and others, mentioned in section 650. The amendment adds “ and to that end may” (upon certain conditions) “grant rehearings and may modify and set aside orders, sentences and decrees rendered in such court.” The words “and to that end ” can be construed only with reference to the context, and to the exclusion of everything else. It refers in terms to what has just preceded, which is confined to matters relating to the estates of deceased persons, to minors, and others under guardianship. To hold that by implication the legislature intended to include all matters relating to condemnation proceedings, drain proceedings, etc., would amount to judicial legislation.

All proceedings had before the probate court after the order dismissing the proceedings was made were without jurisdiction and void. The proceedings were also void as found by the court in the decree, for thie reason that no opportunity was given the complainants who owned lands along the drain to appear and demand a jury as provided by law, and for the further reason that no proper approval of the final order of determination had been obtained by a majority of those liable to assessment for benefits as required by statute and the resolutions of the board of supervisors of Cass county.

Consideration of other questions presented is unnecessary.

The decree of the circuit court is in all things affirmed, with costs to complainants.

Hooker, Moore, Brooke, and Blair, JJ., concurred.