text:
    TUTTLE v. DETROIT, JACKSON & CHICAGO RAILWAY CO.
    1. Street Railways — Evidence — Admissions — Inconsistent Claims.
    Where plaintiff claimed, in a personal injury claim, that he was thrown to the ground by the starting of defendant’s car as he was in the act of alighting, and his testimony was disputed by evidence of his admissions, and by his assertions on cross-examination, inconsistent with his claims on direct examination, it was proper to leave to the jury his claim that the car started quickly and unexpectedly while he was descending from the step. •
    2. Same — Burden of Proof — Question of Fact.
    It was a question of fact for the jury to determine the matter of plaintiff’s credibility; the burden resting on him to establish his freedom from contributory negligence did not change the rule.
    3. Same — Negugence.
    Passengers are entitled to a reasonable time in which to get off after the car has stopped; the duty of the carrier is not discharged until the passenger, alighting with reasonable expedition and exercising due care, with sufficient time to exercise it, is free from the car.
    4. Same.

      Held, that the questions of negligence and contributory negligence were properly submitted to the jury and the verdict was not excessive.
    Error to Washtenaw; Kinne, J.
    Submitted June 6, 1916.
    (Docket No. 5.)
    Decided September 27, 1916.
    Case by William Tuttle against the Detroit, Jackson & Chicago Railway Company for personal injuries. Judgment for plaintiff. Defendant brings error.
    Affirmed.

      Cavanaugh & Burke, for appellant.

      John Kalmbaeh and Arthur Brown, for appellee.
   Steere, J.

In this action plaintiff recovered a verdict and judgment against defendant of $300 for injuries sustained while alighting from one of its interurban cars on September 18, 1912, at the so-called Cooper crossing, a farm stop near plaintiff’s place of residence, iy% miles easterly from the village of Chelsea, in Washtenaw county.

The negligence charged against defendant in plaintiff’s declaration, and upon which the case was submitted to the jury, is, briefly, that after defendant’s car upon which plaintiff was a passenger came to a stop at Cooper’s crossing to allow him to alight, and just as he was in the act of stepping down from the rear platform in the act of alighting, exercising due care on his part, defendant suddenly and without warning started the car forward, causing him to lose his balance, throwing him violently to the ground upon his face, and seriously injuring him.

No evidence was introduced upon the trial by defendant, but at the conclusion of plaintiff’s testimony its counsel moved for a directed verdict of no cause of action upon the following grounds:

“(1) Because the said plaintiff was guilty of contributory negligence.
“(2) Because from the testimony of the plaintiff he jumped off the car while the said car was in motion.
“(3) Because the declaration alleges the cause of the accident to be that the car suddenly started while plaintiff was in the act of stepping off, causing him to lose his balance, whereas the proof on the part of the plaintiff shows that after the car had started plaintiff jumped off while said car was in motion.
“(4) Because there is a material variance between the allegations of .the declaration and the proofs of the plaintiff as to the manner in which the accident occurred.”

This motion being denied, substantially the same propositions were embodied in requests to charge, and later in a motion for a new trial, with the added reason that the verdict was against the weight of evidence. Proper steps were seasonably taken to save all adverse rulings for review.

The essence of defendant’s contention, as we understand it, is that no other witness saw plaintiff at the exact time he parted company with the car, and he, as the sole witness to the manner of his alighting, not only stated both in and out of court that he jumped from the car while it was in motion, thereby admitting negligence on his own part, but his conflicting and inconsistent account of how it happened, taken in its entirety, failed to sustain with any legal evidential force against his own contradictions, the burden of proof resting upon him to make out a prima facie case of his freedom from contributory negligence and actionable negligence on the part of defendant in the particulars charged in his declaration.

Plaintiff was a farmer 58 years of age, and had been engaged in farmwork during the day in question. In the evening after his day’s work was done he went to Chelsea on an electric car of defendant’s which passed his place about 7:25 p. m. His son Clare, a young man about 25 years old, who had worked with him during the day, also went to Chelsea that evening, but not on the same car. They met at the waiting room in Chelsea, and returned together on the same car, leaving there shortly after 10 p. m. Plaintiff was carrying a loaf of bread he had purchased, and sat down inside the car, near the. center, and paid his fare to the conductor before reaching Cooper crossing. His son rode on the rear platform. Another young man named Weisman was also a passenger for Cooper crossing. The car slowed down as it approáehed the crossing, and, as all three testified, came to a brief stop, when they quickly got off, and it immediately started on. In alighting plaintiff fell and was injured, seriously and permanently as he claimed; and his physician was of the same opinion. The nature and extent of his injuries, however, which is questioned by defendant, would be in any event an issue of fact calling for no discussion here.

Weisman rode in the forward part of the car and left it at the front. Plaintiff sat centrally or further back in the car, and his son rode on the rear platform. They got off at the rear. The son was ahead, and could, or did, not see whether his father stepped, or jumped, or was thrown from the car.

Plaintiffs most connected account of the accident, given on direct examination, is as follows:

“When the car commenced to slack down, I got up out of my seat and went out the door and started down the steps. My son went down right ahead of me. The car stopped. My son had just stepped off when it stopped. He stood right down on the last step, and when the car stopped he stepped right off, and I had a loaf of bread, under this arm, and took this loaf of bread and changed it to the other arm, and was just going to get hold of this rod, and I was going to follow, and the car started. I couldn’t tell how I got off, or, what. The next thing I knew the boy was holding me up and I was in that hole. Just how I left the cal- or struck the ground I never could tell. I lost my head or something. I was just going to make that hole or to jump over it. I couldn’t tell whether I got that rod. I was just going to get hold of it. I missed it. I don’t remember Mr. Weisman being there at all.” '

It appeared that some time after the accident plaintiff went to consult an attorney he knew, to whom he states he had gone before “more or less in anything like that,” but the attorney told him he was professionally connected with defendant, and gave him the áddress of its claim agent with the suggestion that he communicate with him. This plaintiff did by mail, in a somewhat rambling letter telling of his claim and sufferings, the cause of which he outlines in part as follows:

“The conductor didn’t give me time to get off before starting the car. It was a dark, rainy night, and they was past the crossing, and I jumped in a hole, and was hit by the car, and haven’t been able to do a day’s work since.”

He also, when in Detroit, went to see defendant’s claim adjuster, and signed a statement written out by a young man, who testified he was then claim adjuster for the Detroit United Railways, and obtained the information contained in the statement entirely from plaintiff as he told his story “exactly, word for word,” and that plaintiff read it before signing. It concludes:

“I have read over the above and same is correct. I think that step of car hit my chest.”

The portion of this statement which it is urged particularly negatives his testimony on the trial, and shows admitted contributory negligence is as follows:

“Upon approaching that point T left my seat in car, and started for rear platform. My boy, Clare Tuttle, was with me at the time, and he was ahead of me, and was on step of car. Upon reaching the crossing he alighted while car was still in motion, and I started down step with intention of getting off, and as I started down steps I noticed that car was again starting to pick up speed, and upon noticing that I hurried myself and jumped off, whilst car was going. I think I could have safely jumped off if it hadn’t been for a hole alongside track which I fell into.”

Plaintiff admitted that he signed the statement which the agent wrote out and tried to read it over, but claimed he could not do so very well, because he did not have his glasses; insisted that he did not make certain statements appearing in it, and that he told the story in substance, “but not in the same words,” as he told it on the stand, as near as he “possibly could”; denied he stated that his son got off before the car stopped, or that he positively stated he jumped, or that he did in fact jump, unless as he fell; that he knew he was going to “get hold of that rod and jump off,” but “couldn’t say what I did.”

It may be conceded without going into further details that plaintiff in the course of a rather pressing cross-examination made conflicting assertions and denials difficult to reconcile, and inconsistent with his at other times claimed lack of memory and confusion as the result of his fall, but we cannot find that this carries his testimony beyond the well-settled rule that the credibility of a witness and consistency of his statements are matters for the jury rather than for the court.

Although they did not see him at the exact time he left the car, the testimony of his son and Weisman is competent to consider fór its bearing upon plaintiff’s insistent assertion of the essential facts that the car had stopped and started up again before he had time to get clear off it in alighting; for the testimony of each witness is to be weighed in connection with that of others and in the light of all facts and circumstances found proven in the case.

His son Clare, who rode upon the rear platform, testified that as the car slowed down for the crossing he saw his father near the rear door; that he stepped “quite fast like to get off the car, and must have been very close behind,” but just where he could not swear, as he went ahead and stood on the last step waiting for the car to stop, which it did with the rear opposite a hole, or ditch, across which he stepped; that the “car barely came to a stop and went right on,” and as he balanced, and squared himself on his feet, after stepping across, “ready to look around,” he saw his father “in that hole on his face in a frog position,” apparently unconscious; that as he proceeded to care for him Weisman came up from where he got off forward and helped him, and after his father came to he (Clare) assisted him home alone.

Weisman, who was riding near the front of the car, testified that as it approached the crossing he went out forward, and stood on the bottom step until it stopped, about a length past the crossing, when he stepped off; that it just stopped and went right on again, “couldn’t have remained standing over a jiffy,” and he heard no signal for it to start; that it was a dark, cloudy night, and he “kind of heard some one groaning,” and went back about the length of the car where he found Mr. Tuttle “in the hole” with his son lifting him up and he helped a little, amongst other things picking up plaintiff’s hat and putting it on his head and giving the loaf of bread to his son; that while unable to say whether or not plaintiff was unconscious “he did not say anything to me when I raised him up.”

That the car halted at this crossing to discharge passengers, and plaintiff, who had paid his fare to that point, was in the act of getting off when he fell, is undisputed. Whether it had stopped and quickly started up while he was in the act of alighting was, we think, fairly a question for the jury under the testimony in this case.

That passengers are. entitled at a stopping place to a reasonable time in which to get off after the car has stopped and the duty of the carrier is not discharged until the passenger, alighting with reasonable expedition and exercising due care, with given time to exercise it, is free from the car, is settled law. Finn v. Railway Co., 86 Mich. 74 (48 N. W. 696); Britton v. Railway Co., 90 Mich. 159 (51 N. W. 276); Burke v. Traction & Electric Co., 147 Mich. 172 (110 N. W. 524); Braun v. Railway Co., 183 Mich. 569 (150 N. W. 144).

The issue for the jury was a plain and simple one with no complicated questions of law involved. The jury were plainly told by the court that to recover plaintiff must show that he was free from contributory negligence, and, as charged in his declaration, “that the car stopped in order to allow the plaintiff and other passengers to alight therefrom, and that it started up before it had given the plaintiff a reasonable time in which to alight, and that in his effort to alight, or while alighting, he received injuries in consequence thereof,” etc.; that if he jumped from the car before it came to a full stop, or “if the accident occurred by reason of a hole in the highway, he could not recover,” nor “by reason of failure to ring the bell.”

We are of opinion that the testimony, taken as a whole, fairly presented an issue of fact to go to the jury which was plainly explained and submitted to them by the court under a sufficient charge, are unable to find that the verdict was excessive or so palpably against the weight of evidence as to demand that it be set asjde, and discover' no good reason in law for disturbing the judgment of the trial court.

The judgment is affirmed.

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


source: Caselaw Access Project

author: Steere, J.

license: Public Domain

text:
    GAINES v. GRAND TRUNK RAILWAY CO. OF CANADA.
    1. Railroads — Master and Servant — Employers’ Liability Act —Negligence oe Fellow Servant — Contributory Negligence.
    Plaintiff left bis work of repairing a car to assist two fellow laborers in fixing a “gun barrel drawbar,” part of a Westinghouse friction gear. On striking the coupling or drawbar with a hammer, a spring was released which flew and struck plaintiff, injuring him severely. He did not know of the presence of springs in the drawbar and was not familiar with the construction of the coupling, but placed himself in front of the gun barrel and struck it. Held, that the Federal employers’ liability act was controlling and' that there was no liability if plaintiff assumed the risk of his injury, a defense open to defendant, as it was at common law, and that he must prove actionable negligence on the part of his employer. 35 U. S. Stat. 65, U. S. Comp. Stat. 1913, §§ 8657-8665.
    2. Same — Negligence—Defects.
    It was the intention of Congress to base the action upon negligence only and exclude responsibility of the carrier to its employees for defects and insufficiencies not attributable to negligence.
    3. Same — Instructing Servant — Duty.
    A master is not called upon to anticipate every possible accident, and may leave an employee to learn the hazards of the business as he learns the business itself, from his associates and experience, where the hazards are not extraordinary.
    4. Same — Risk Assumed — Negligence.
    Where the relationship of master and servant existed, and, though not directly ordered to do what he did, where he was acting in the line of his employment, which was the repair of cars, including drawbars, plaintiff could not be said to have acted as a mere volunteer, but, under the recognized rule that workmen engaged in repair work of defective or dangerous appliances, etc., assume the added risk incident to the existing condition of the instrumentality or place of work, he could not recover.
    5. Same — General Rule.
    One engaged in the repairing of defects assumes the risk of injury incident to their damaged condition, the risk being an ordinary one.
    Error to Shiawassee; Gilday, J., presiding.
    Submitted June 13, 1916.
    (Docket No. 67.)
    Decided September 27, 1916.
    Case by Clarence D. Gaines against the Grand Trunk Railway Company of Canada and others for personal injuries. Judgment for defendant on a directed verdict. Plaintiff brings error.
    Affirmed.

      Terry & Parsons, for appellant.

      Harrison Geer (W. K. Williams, of counsel), for appellee.
   Steere, J.

While employed as a car repairer in defendant’s repair yards at Durand, Mich., plaintiff was injured as the result of striking the plunger of a defective drawbar with his hammer and thus releasing the compressed spring at its base, which threw the plunger, or other interior parts upon which the spring acted, violently out of the end of the drawbar in front of which he stood, and against him. On a former trial it was shown that the drawbar was part of a foreign car which came under defendant’s control while engaged in interstate commerce, and was then being repaired in compliance with requirements of a Federal act, for which reason it was held by this court that, if any action would lie, recovery would be possible only upon a declaration framed under an appropriate Federal law. 181 Mich. 376 (148 N. W. 397). Plaintiff’s declaration was amended to comply with this suggestion prior to the trial now here for review, at which the court under a directed verdict rendered judgment of no cause of action on the ground that no negligence on defendant’s part was shown; and “there was no emergency calling for assistance from plaintiff relative to that car. That the services he was attempting to render were merely voluntary and he, being a volunteer, assumed the risk of all dangers incident to the work at hand; and that he did, as a matter of law, assume the danger of the spring in the friction draft gear, when released, flying out and injuring him.”

The substance of defendant’s charged negligence, as more elaborately detailed in plaintiff’s declaration, was failure to properly inspect, the crippled ear and more definitely determine the nature of its defects, failure to warn plaintiff of the dangers attending an attempt to take apart a drawbar of the kind and in the condition of the one by which he was injured, and failure to instruct him as to the proper and safe way of doing so.

The accident occurred December 7, 1911. Plaintiff had then been steadily in defendant’s employ as a car repairer at Durand since July 27, 1911. About 30 men were employed in the repair yards under a foreman named Decker. Under him was an assistant foreman, or head car repairer, named Seeburger, directly in charge of the work, whose duties were to direct the men and see that the repairs were properly made. The repairers generally worked upon the various cars which had been placed in the yard on one of the special tracks for repairs in couples, to most effectually carry on the work and readily assist each other as the nature of the repairs to be made at times required.

Plaintiff testified that when first employed he had no previous experience in that capacity and was directed to go to work the next morning with a car repairer named Bullock, as his helper, which he did, continuing to work under and most of the time with him until injured. Bullock testified that when plaintiff came to work with him he had himself been working there “possibly three months.” Each from the beginning received equal pay; all repair men in the yard doing that kind of work being paid the same wages. Their work as general car repairers varied according to what was required, consisting of changing wheels, putting in or on column bolts, brake beams, handholds, brake shoes, levers, repairing defective drawbars, etc., and in general making any and all required repairs below the body on cars sent to the repair yards, or “rip tracks,” for that purpose and marked with a “bad order” card, except needed repairs on air brakes and any required carpenter work.

Plaintiff’s intelligent description of the nature and method of doing* this work, and of the various parts and appliances of the different cars sent in for repairs, about three to one being foreign cars as he recollected itj was strongly confirmatory of Bullock’s statement that in almost daily making or assisting in making* the various kinds of repairs required plaintiff’s experience had been such that he would understand any defective condition in a car as well as Bullock. Plaintiff called Bullock his foreman. Bullock called plaintiff his partner, and in explanation testified that he “wasn’t foreman, but we worked together. He came to me and asked me how you would do things, and I would tell him best I knew how; * * * and a little later they put a fellow in there with us named George Everson”; that Seeburger directed them as to the work they should do, but they did what they saw was to be done and there was no difference as to which one should do certain parts, each assisting the other when called to come and help, and he thought “it would be with my partner to come and help me without my asking him”; that there were from 50 to 100 cars on the rip tracks for repairs most of the time, more of them foreign cars than those of defendant, requiring repairs before they could go> further. It may fairly be inferred from their testimony that while the two workmen were of the same rank and pay, when working together as they usually did, plaintiff looked to and followed the directions of Bullock, who was the older employee, whenever any question arose as to what he should do next or how any special thing should be done.

On the day of the accident Bullock had left plaintiff at work alone repairing a wooden gondola D. & M. car, “putting in draft timbers, bolts, brake shoes, etc.,” as plaintiff describes his work, and Bullock was working with Everson on a B. & O. car near by, the-coupling of which was out of repair owing to some defect in its drawbar or draft gear. The cars of that line were equipped with a drawbar, known as the Westinghouse friction gear, commonly called in railroad parlance a “gun-barrel drawbar.” It was shown that, all drawbars work upon the same principle and contain springs to relieve the shock of cars coming together, but they vary in appearance and detail of construction, some being incased entirely in iron and some in wood and iron, other types being more common than the “gun barrel” which had, however, been in service on some eastern roads for 12 or 14 years, being used by the Pennsylvania, Chesapeake & Ohio, and Baltimore & Ohio systems. This drawbar had a cylindrical metal outer shell said to be about 8 inches in diameter and 20 inches or more in length. Two springs, one within the other, were placed at the rear or bottom of the barrel with a plunger having an enlarged base against them and two other springs ahead or above the plunger at the forward or open end of the draft gear fastened to the coupler or drawhead, the entire drawbar weighing 200 pounds or more. Bullock and Everson removed this drawbar from the car they were repairing and laid it beside the track. They had discovered that the upper or front springs were broken and the plunger compressed too far into the cylinder. The springs at the base of the plunger were not visible, but they knew that they were either compressed or broken, and that it was necessary to remove the plunger to ascertain which. Failing to easily release the plunger, Bullock called over to another car repairer named Edison to come and look at it, saying, as he testified, that he thought “there is another spring down in there; you have got to take off this cap and see whether it is broken.” The consensus of opinion apparently was that the spring was broken and Edison hit the plunger several times in an unsuccessful attempt to get it out. Bullock then placed two wooden blocks on the ground with a space between them, ending up the drawbar so the plunger would be between them and attempted to loosen it by jarring the drawbar up and down on the blocks.

Plaintiff had just then finished making repairs to the car upon which he had been working alone all the morning, and went over where they were working for the purpose, as he states, to “receive orders” from Bullock, “to find out what to do,” and noticed that they were trying to release the plunger in the gun-barrel drawbar which he saw lying on the ground, of which he says he “had never seen a device of this kind before,” that “it was a very peculiar affair,” but “what it was I didn’t know.” Having observed their unsuccessful efforts, he set the drawbar on end with the plunger pointing up towards him and striking it with his hammer released the spring, with disastrous results to himself. Of the event he testifies:

“Then I set the gun barrel up in the same position it was when Mr. Edison was hitting it with a two-pound machine hammer, struck it with a common, ordinary blow and before I came to myself, I was hit, cut, and knocked down and jarred internally. * * * I never examined it at all, just looked at it and hit it with the hammer as it appeared to me the trouble indicated was that the plunger was stuck to one side and all that was necessary was to straighten it up and put on new springs and put it back in its proper position.”

Also that he did not know there were springs at the base or that there was any danger in doing as he did.

Bullock’s undisputed description of plaintiff’s intervention and the accident is as follows:

“When Edison and I were there at work I saw Gaines come up and Gaines suggested to me to let him try it. He said, ‘Let me try it; I can get it.’ Without any'instructions from Edison or me he took the hammer and struck it on the side. He had to bend over it in order to hit it and when he struck it it let loose, and which is the way the accident occurred.”

Seeburger, the repair foreman, testified that his general duties were to see that the repairs on the rip tracks in the yard were properly made, and to direct and instruct the men with reference to the work, and that many Baltimore & Ohio cars are repaired there each year; that he was there on the day of the accident, although he could not say whether he saw the gun-barrel drawbar in question, but when any such condition arises with any of the workmen in making repairs they could and should refer the matter to him first before attempting to make the repair “if they didn’t understand how to "handle it.”

This action being brought under the so-called Federal employers’ liability act of 1908 and amendments thereto (85 U. S. Stat. 65, U. S. Comp. Stat. 1913, §§ 8657-8665), that statute and decisions of the Federal courts upon it are controlling. By it the defense of fellow-servant’s negligence is taken away and contributory negligence does not bar recovery, being available only in reduction of damages proportionate to the amount of negligence attributable to the employee.

The rule as to the assumption of risk remains, except in those cases where the defendant has been guilty of violating some statute enacted for the safety of employees, and by such violation contributed to the injury complained of. In Seaboard Air Line Ry. v. Horton, 233 U. S. 492 (34 Sup. Ct. 635, L. R. A. 1915C, 1, Am. & Eng. Ann. Cas. 1915B, 475), the court said upon that subject:

“It seems to us that section 4, in eliminating the defense of assumption of risk in the cases indicated, quite plainly evidences the legislative intent that in all other cases such assumption shall have its former effect as a complete bar to the action. * * * The risks may be present, notwithstanding * * * all reasonable care on his (plaintiffs) part. Some employments are necessarily fraught with danger to the workman — danger that must be and is confronted in the line of his duty. Such dangers as are normally and necessarily incident to the occupation are presumably taken into the account in fixing the rate of wages. And a workman of mature years is taken to assume risks of this sort, whether he is actually aware of them or not.”

No violation of any safety appliance act or other statute, nor negligence of fellow servants, are involved here; but the defense of assumption of risk is open as at common law, and it is to be borne in mind that, however the accident happened or whatever the result, there is no liability under the statute unless plaintiff shows that he was injured through the actionable negligence of his employer, and not otherwise. This thought is thus emphasized in the Horton Case:

“It was the intention of Congress to base the action upon negligence only, and to exclude responsibility of the carrier to its employees for defects and insufficiencies not attributable to negligence.”

The fact of an accident carries with it no presumption of negligence on the part of the employer, and it is an affirmative fact for the injured employee to establish that the employer has been guilty of negligence. Texas, etc., R. Co. v. Barrett, 166 U. S. 617 (17 Sup. Ct. 707).

It may well be questioned whether the employer is required to anticipate the possibility of an accident of this nature resulting from the peculiar combination of events disclosed here. As is often the case, the cause of this accident is easiest understood, and the danger to which plaintiff was exposed is best appreciated and apprehended after the fact, for the accident itself not only reveals the cause, but after its occurrence forcibly suggests what might have been done to avoid it.

“The master has a right to expect him (plaintiff) to be alert to inform himself of existing conditions, and he cannot attack the master from the shelter of unjustifiable ignorance. * * * Actual ignorance will not alone suffice to charge a master.” Ragon v. Railway Co., 97 Mich. 265 (56 N. W. 612, 37 Am. St. Rep. 336).
“A master is not called upon to anticipate every possible accident, and may leave an employee to learn the hazards of a business, as he learned the business itself, from his associates and experience, where the hazards are not extraordinary.” Nowakowski v. Stove Works, 130 Mich. 308 (89 N. W. 956).

All drawbars contain springs working upon the same principle, and plaintiff was not unfamiliar with drawbars. He was not immature nor inexperienced; the evidence shows that he was an experienced man of mature years and fair intelligence, with ability to understandingly describe and discuss the nature of the work done at the repair yards where he was employed and the method of carrying it on. He explained the parts and purposes of drawbars upon which he had worked, described the coiled springs used in them, and stated that if there weren’t springs in there when the cars came together “they would all smash to .pieces.” When the accident occurred he had been in this service a longer period of time than Bullock had been when plaintiff states that he was put at work under Bullock, who acted as his instructor and foreman.

The bare contention that plaintiff was a “volunteer” and thereby absolutely precluded from recovery is manifestly not tenable. Technically he was not a volunteer, for it is shown that the relation of master and servant existed between him and defendant, and that, while not directly ordered to do what he did, he was acting in the line of his employment, which was the repair of cars, including drawbars. He was, however, a volunteer in the particulars that he was not put at work upon this car by any one, nor called upon to assist those who were, that there was no emergency demanding his intervention and he was neither ordered, directed, or requested to do this work. He assumed, uninvited and without any instructions, to do work upon an article which he claimed he had never seen before, had no knowledge of, did not examine, and in relation to which he made no inquiry. He testified:

“I knew it was a piece of iron. What it was I didn’t know.”

Its appearance seems to have suggested the popular name of a gun barrel, but without examining it or asking any questions of those working upon it he placed himself over the muzzle of this “gun barrel,” with a plunger projecting from it and successfully proceeded to try if he could “get it.” While not precluding recovery, these facts have a significant bearing upon defendant’s duty to him in connection with this accident and his assumption of risk.

In connection with the foregoing it is to be borne in mind that defendant’s liability was qualified by the nature of plaintiff’s employment, which was for the express purpose of assisting in repairing unsafe and defective instrumentalities and restoring them to a normal condition of efficiency and safety. The recognized general rule as to that class of employment is that workmen engaged to diagnose, repair, and make safe a tool, piece' of machinery, appliance, or place to work, which is defective, out of repair, or dangerous, assume the added risk incident to the existing condition of the work or place.

“A person employed to repair defects in appliances assumes the risk of injury incident tb their damaged condition. It is the work which his duties require him to perform, and hence is an ordinary risk.” 2 Bailey on Personal Injuries (2d Ed.), p. 985.

This rule is more fully stated with citation of numerous authorities in 3 La Batt on Master and Servant (2d Ed.), § 1176, and quoted with approval in Baxter v. City of Lansing, 190 Mich. 542 (157 N. W. 70).

In the light of the foregoing authorities and others to which they refer, we are impelled to conclude that under the undisputed and controlling facts in this case plaintiff is precluded from recovery by having assumed the risks incident to the employment in which he was engaged when the accident complained of occurred.

The judgment is affirmed.

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


text:
    LARSKOWSKI v. DETROIT UNITED RAILWAY.
    1. Carriers — Negligence—Personal Injuries — Proximate Cause.
    Where plaintiff’s decedent was killed while riding on the platform of a street car that was crowded with passengers, and was jarred or crowded out of an open door, he was riding on the platform by permission, as it was necessarily contemplated that when the inside was filled to capacity passengers should stand on the platform, if taken on and accepted as such, and the swerve or jerk of the car, the lurching of the crowd against the decedent and open door may be said to have combined to cause the accident.
    2. Same — Negligence—Concurring Causes.
    While the lurching of the car was the immediate cause of the injury, the accident was the result of the concurring conditions, defendant’s negligent failure to close the door, and the lurching, combined. Defendant was liable if it negligently left the door open and thereby aided in bringing about the death of its passenger.
    3. Same — Contributory Negligence.
    In the absence of any rule of the railway company, or ordinance requiring the doors to be closed on the car, since decedent was riding on the platform by permission, and by implied invitation, considering the crowded condition of the street car, he was not guilty of contributory negligence.
    4. Same — Riding on Platform.
    Carrying an excess of passengers and permitting them to stand on platform, and steps is evidence of negligence.
    5. Same — Contributory Negligence.
    A person accepted as a passenger and required or permitted to ride on the platform of a street car is not as a matter of law negligent, relieving the company from liability except from gross or wilful negligence. The questions of negligence of defendant in leaving open the door and plaintiff’s contributory' negligence were for the jury. Brooke, J., dissenting.
    Error to Wayne; Codd, J.
    Submitted June 15, 1916.
    (Docket No. 139.)
    Decided September 27, 1916.
    Rehearing denied December 22, 1916.
    Case by Bronislawa Larskowski, as administratrix of the estate of Joseph Larskowski, deceased, against the Detroit United Railway for the unlawful killing of plaintiff’s decedent. Judgment for defendant on a directed verdict. Plaintiff brings error.
    Reversed.

      Charles Bowles, for appellant.

      Corliss, Leete & Moody and A. B. Hall, for appellee.
   Steere, J.

This action was brought in the Wayne county circuit court by plaintiff as administratrix of Joseph Larskowski, her deceased husband, to recover damages for his death which was caused by his falling from an electric street car being operated by defendant along Forest avenue, in the city of Detroit. Upon the trial a verdict for defendant was directed by the court at conclusion of plaintiff’s evidence on the ground that she had failed to produce any. proof of actionable negligence on defendant’s part as a proximate cause of the accident complained of.

The accident occurred on the evening of September 22, 1913, while deceased was riding on a west-bound cross-town car, on Forest avenue, about midway between Grandy avenue and Chene street. He was a common laborer 51 years of age, in good health, a married man, regularly employed as watchman in a factory at the time of his death, and had taken the car near Mt. Elliott avenue about 6 o’clock that evening to return home from his day’s work.

Plaintiff’s testimony showed, or tended to show, that the traffic was. heavy that evening and the car so crowded that it was very difficult, if not impossible, for deceased to get into the body of the car owing to the number then standing on the platform and within, described by one witness as “a jam,” and he therefore rode on the back platform, which was also filled with standing passengers. The car which he boarded was of the kind called a “pay-as-you-enter car,” with outside doors inclosing the entrance and exit which could be opened when the car was stopped to receive and discharge passengers and closed so as to prevent their getting on or off when the car was running. It was the custom to do this, but that evening the doors were not closed after the car left Grandy avenue, and about midway in the block a sudden jerk or swing of the car swayed or threw the other passengers standing close together on the rear-platform against deceased, who was near the open door, and pushed or crowded him off, so that he fell upon the pavement, striking violently on his head, causing spinal injuries and concussion of the brain, which resulted in his death.

Taking the testimony introduced by plaintiff as true and viewing it in the light most favorable to her contention, as is required in case of an adverse directed verdict, we think it tends to show that these three things, or conditions, combined to cause the accident —the sudden swerve or jerk of the car, the swing or lurching of the crowd against deceased, and the open door through which he was thrown, or fell. When the questions of negligence and responsibility are at issue the finer distinctions of proximate and remote cause do not always suffice as the test of liability, and sometimes confuse. It might, and probably could, truthfully be claimed that the proximate cause of deceased’s death was his fall from the car or, more directly, concussion of the brain, or cerebral hemorrhage, or some other yet more occult physiological injury, but such conclusions, though in one aspect well founded, manifestly suggest no test for determining culpability.

The true test of legal responsibility in cases of this nature was briefly sounded without technical adornment, and approved by the court, in Denver, etc., R. Co. v. Bedell, 11 Colo. App. 139 (54 Pac. 280), a case in which the plaintiff while a passenger of defendant attempted, on account of the car being too cold, to close the door which had been left open, and owing to a sudden jerk or lurch of the train fell through the open door and was injured. In connection with a general verdict the jury by special verdict upon a question of fact answered that the negligence of defendant causing plaintiff’s injuries was “leaving the door open.” In sustaining this verdict the court there clearly stated the rule as follows:

“While the lurching of the car was the immediate cause of the injury, the plaintiff would not have been exposed to the danger of injury, except for the negligent leaving open of the car doors. The accident was the result of the concurrence of the defendant’s negligent failure to close the doors, and the lurching of the car; but if the former condition had not existed, the plaintiff would have been unharmed by the latter. A party through whose neglect another is exposed to, and sustains, injury, without any fault of his own, from some concurrent cause with which the negligent party may not be specially chargeable, is responsible for the injury. The injury is the direct and logical result of the negligence.”

The general rule there applied to the open door is supported by authorities cited, and recognized in our own decisions. Swick v. Cement Co., 147 Mich. 454, 462 (111 N. W. 110).

It is urged by defendants, however, that the rule of negligence which would apply to regular railroad trains running through the country is not the same in many particulars .as that applicable to urban cars, or street car lines operated for comparatively short distances with frequent stops at street crossings; there was no proof made of any rule of the company or city ordinance requiring those doors to be closed on the car when running, in the absence of which there is no presumption of negligence from their being left open, and on the contrary it can fairly be contended that they were not provided for protection of people riding upon the platform, “as it is not contemplated that people shall stand on the platform, but rather to prevent accidents which so frequently occur in getting on and off cars where disputes are always arising as to whether the car was in motion when the passenger was getting on or off.”

Deceased was riding upon the platform of this car by permission, and, if the car was crowded within as claimed, by implied invitation, of defendant. When the interior of the car was filled to capacity it was necessarily contemplated that passengers thereafter received would stand on the platform. That street railways are common carriers of passengers and under their contract of safe carriage are bound to exercise a high degree of care, cannot be questioned.

There is abundant authority that for a street railway to carry passengers greatly in excess of the seating capacity of its cars and permit them to stand on the platforms and steps is evidence of negligence. Pray v. Railway Co., 44 Neb. 167 (62 N. W. 447, 48 Am. St. Rep. 717), and cases there cited.

That a person accepted as a passenger and required or permitted to ride on the platform is not guilty of negligence per se, and does not relieve the company from all liability except for gross, wilful, and wanton misconduct by assuming all other risks, is held in Upham v. Railway, 85 Mich. 12 (48 N. W. 199, 12 L. R. A. 129).

But aside from all questions of operating overcrowded cars and permitting passengers to ride in dangerous positions on platforms, steps, running boards of open cars, etc., plaintiff was entitled to go to the jury on the question of leaving these doors open when the car was running, with passengers riding upon the platform. There was evidence that it was the custom to close them. To have them closed when running was manifestly a wise precaution and a factor of safety. That it might not be negligence to operate cars of a different design, without doors inclosing its platforms, is immaterial. This was a pay-as-you-enter car, equipped with such safety appliances, the use of which eliminated certain possible dangers. Under the circumstances of this case it can well be contended that it was the duty of defendant to use them as they could best be used to protect its passengers, and its failure to close these doors when running was negligence. McMahon v. Railway & Light Co., 127 La. 544 (53 South. 857, 32 L. R. A. [N. S.] 346); Augusta R. Co. v. Glover, 92 Ga. 132 (18 S. E. 406). In the latter case an electric car upon which a boy of 15 years rode as a passenger was equipped with gates on the side of the platform next to a parallel track, which were left open, when he alighted from the car upon that side and was struck and killed by a passing car on the other track. Having provided gates which, if closed, would have prevented him getting off on that side, the defendant neglected to use them. Of this the court well said:

“There may be no negligence whatever in failing to have gates * * * provided the equipment is sufficient to come up to the standard of extraordinary-diligence. * * * But when a company has provided gates, due diligence might require it to use them, and failure to use them might be negligence in the given instance. Whether it would be or not is a question of fact for the jury. . * * * And this is so irrespective of the particular object which the company had in view in procuring the gates, or'of its own practice in their use. * * * Extraordinary diligence may require the carrier to use what he has, though it would not require him to have as much as he has provided.”

We are satisfied for the reasons stated that plaintiff’s testimony raised material issues of fact which she was entitled to have submitted to the jury under proper instructions. It follows that the judgment must be reversed, with costs, and the case remanded for a new trial.

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

Brooke, J. I am of opinion that no negligence was shown on the part of the defendant.


author: Per Curiam.

text:
    LAVIGNE v. WAYNE CIRCUIT JUDGE.
    Appeal and Error — Bill or Exceptions — Practice—Mandamus.
    Where relator’s petition for mandamus represented that a transcript of testimony was delivered to relator’s attorney in September, 1915, when he was sick, and that the judge, who was not a regular incumbent of that circuit, had not sat as circuit judge for the trial of causes since a date specified, that was in fact incorrect, and where relator claimed that he obtained a stay and stipulation extending the time to settle a bill of exceptions, but did not serve a proposed record until the fifth month thereafter, with notice of settlement thirty days later, and a motion to extend the time was denied because untimely made, the refusal of the application was not reversible in a mandamus proceeding, and the order did not constitute an abuse of the judge’s discretion.
    Mandamus by Joseph P. Lavigne against Joseph Barton, judge of the twenty-seventh judicial circuit, acting in Wayne county, to compel respondent to show cause why an order extending the time for settling the bill of exceptions in the case of Edward C. Nagel against Joseph P. Lavigne should not be granted.
    Submitted September 19, 1916.
    (Calendar No. 27,386.)
    Writ denied September 27, 1916.

      M. N. Mendelsohn, for relator.

      Corliss, Leete & Moody, for respondent.
   Per Curiam.

In the cause Edward C. Nagel v. Joseph P. Lavigne, in the Wayne county circuit court, on trial before Hon’ Joseph Barton, circuit judge of the Twenty-Seventh judicial circuit, a verdict for plaintiff was directed June 25, 1915, and judgment was entered on the verdict July 7, 1915. The defendant, who was represented by Moloney & Mendelsohn, filed a bond August 6, 1915, and an order staying proceedings was entered August 17, 1915, which was followed August 21, 1915, by a stipulation of counsel, pursuant to which an order was made extending until September 15, 1915, the time to settle a bill of exceptions. No bill of exceptions was served upon plaintiff’s attorneys until February 21, 1916, when with the proposed bill there was served a notice of settlement on March 21, 1916. The bill was returned, plaintiff’s attorneys declining to accept it. Before said proposed bill of exceptions was filed, notice had been given to the attorneys for defendant of a motion to vacate the order of August 21, 1915, staying proceedings. Meantime, in October, 1915, one of the attorneys for plaintiff, by telephone, told Mr. Moloney, one of the attorneys for defendant, in substance, that if an appeal was to be taken plaintiff desired the cause heard at the January, 1916, term of the Supreme Court and was told by Mr. Moloney that the bill of exceptions was prepared and would be served on that day or the next. There was no other communication of counsel about the matter. In May, 1916, a motion was made by defendant to extend the time to settle a bill of exceptions. It was opposed. Coming on to be heard before Judge Barton, on May 13, 1916, the motion was denied. On application to this court an order to show cause why the motion should not be granted was made. The return to the order is before the court. It appears therefrom that Judge Barton sat as judge in the circuit court for Wayne county September 21st to 25th, inclusive, September 27th to 30th, inclusive, 20 days in October, 21 days in November, and 4 days in December, 1915, 21 days in January, 1916, and, for the purpose of hearing motions, March 18, 1916. Of the last-mentioned date due notice was given.

The petition for the order to show cause states that the transcript of testimony was delivered to Mr. Moloney September 17, 1915, but that he, who had principal charge of the case, was ill and, under medical advice, gave up all work in October and left Detroit for two weeks in the pursuit of health,- and from the time of his return, “owing to his physical condition, has been unable to do any trial work and practically no office work.”

It is further stated in the petition for the order to show cause, and was a material allegation of fact considered when the order to show cause was granted, that Judge Barton “has not sat as a circuit judge for the trial of causes in circuit court for the county of Wayne since the end of June, 1915,” except on March 18, 1916, at which last-mentioned date Mr. Moloney was absent from the city of Detroit. Of this statement it is said in the brief:

“Had it not been for the illness of John E. Moloney, the attorney in charge, unquestionably the bill of exceptions would have been submitted long before February, 1916, and when relator made the statement in his petition that the said respondent. Judge Barton, had not been in the city of Detroit since the trial of said cause until May 13, 1916, with the exception of March 18th of the same year, it was not his intent to deceive this court, but to say that the said Judge Barton had not acted as Wayne county circuit judge from February 21, 1916, this being the first time that we had the slightest intimation that there would be any objection upon the part of counsel for the plaintiff to the acceptance of the proposed bill of exceptions until May 13, 1916, with the exception of the day in March at which time said John E. Moloney was absent from the city.”

But the statement did deceive the court, since it indicated that there had been no opportunity to apply to the trial judge for an order extending the time to settle a bill of exceptions and no opportunity to settle the bill. Otherwise than this the showing made in the court below and here is insufficient to warrant an extension of the time. A motion to extend the time on account of illness of one of plaintiffs attorneys, seasonably made, would have permitted an investigation of the fact of illness, and whether the fact, if established, or admitted, was a sufficient reason, other circumstances considered, for an extension of time.

There has been no abuse of discretion, and the writ is denied, with costs to the plaintiff in the original cause.


author: Stone, C. J.

text:
    BOARD OF STATE TAX COMMISSIONERS v. KOHLER.
    Taxation — State Tax Commission — Review of Assessment.
    Under the general tax law the State tax commissioners are given authority to inspect the tax rolls, after they have been passed on by the various reviewing boards, and, if the investigation warrants, may issue an order to the assessor whose rolls are under review to appear with his assessment rolls therefor, and the State board is authorized not only to inspect and investigate the rolls, but also to examine witnesses and documents. Sections 148-150. Neither the order by the commissioners nor the petition for mandamus is fatally defective for failure to make it apparent how it came to be shown that the assessment required an investigation or review.
    Mandamus by the State Board of Tax Commissioners against John Kohler and others, constituting the board of assessors of the city of Detroit, to compel respondents to turn over to relators for inspection and review the assessment rolls of said city.
    Submitted October 24, 1916.
    (Calendar No. 27,556.)
    Writ granted November 6, 1916.

      Grant Felloivs, Attorney General, and L. W. Carr, Assistant Attorney General, for relator.

      Harry J. Dingeman and Vincent M. Brennan, for respondents.
   Stone, C. J.

This is a petition for mandamus to require the defendants, who constitute the board of assessors of the city of Detroit, to turn over the assessment rolls of said city to plaintiff, the board of State tax commissioners, to enable it to review the same.

An order to show cause having been made, and defendants having answered, we are met, at the threshold, with the objection that the plaintiffs petition is fatally defective because it does not set forth a state of facts such as is required by the statute to exist before an order looking to the review of assessments, such as the order referred to in the petition, Exhibit 1, may be issued. Paragraph 4 of plaintiff’s petition reads as follows:

“That it was made to appear to your petitioners, constituting and composing the board of State tax commissioners, that the assessments of real and personal property in the city of Detroit, and in the various wards thereof, as the same appear on said rolls, have been made so irregularly and so unlawfully that a review of said rolls by your petitioners, acting as the board of State tax commissioners aforesaid, in accordance with the statute in such case made and provided, was and is necessary and imperative in order that compliance with the law relating to the assessment and collection of taxes may be had.”

The preamble to the order issued by the plaintiff is, in part, as follows:

“Whereas, it has been made to appear to said board of State tax commissioners that property in said city has been so irregularly and unlawfully assessed that adequate compliance with law cannot be secured except by a review of said assessment rolls,” etc.

Paragraphs 4 and 5 of the answer of defendants are, in part, as follows:

“(4) Respondents have no knowledge as to what has been made to appear to relator, and therefore neither admit nor deny the allegation contained in paragraph 4 of said petition and leave relator to its proof.
“(5) Respondents admit that a document, purporting to be a valid order, was issued by relator, as described in paragraph 5 of its said petition, and admit that Exhibit 1 is a true copy of such document; but respondents deny that such order was issued in conformity with any valid statute of the State of Michigan, and are advised and aver that such order issued without any authority in law, and contrary to the Constitution and laws of the State of Michigan, and especially of the charter of the city of Detroit.”

Section 152 of the general tax law, as amended by Act No. 153, Pub. Acts 1913, being the section of the act relied on herein by plaintiff, reads:

“After the various assessment rolls required to be made under this act or under the provisions of any municipal charter shall have been passed upon by the several boards of review, and prior to the making and delivery of the tax rolls, to the proper officer for collection of taxes, the said several assessment rolls shall be subject to inspection by said board of State tax commissioners or by any member or duly authorized representative thereof and in case it shall appear to said board after such investigation, or be made to appear to said board by written complaint of any taxpayer, that property subject to taxation has been omitted from said roll, or individual assessments have not been made in compliance with law, the said board may issue an order directing the assessor whose assessments are to be reviewed to appear with his assessment roll and the sworn statements of the person or persons whose property or whose assessments are to be considered at a time and place to be stated in said order, said time to be not less than seven days from the date of the issuance of said order, and the place to be at the office of the board of supervisors at the county seat or at such other place in said county in which said roll was made as said board shall deem most convenient for the hearing herein provided. * *

The remainder of the section is immaterial to the point under consideration.

Specifically stated, the objections of defendants to the sufficiency of the order and petition are as follows:

“ (1) Nowhere is it set forth in this order that, prior to its issuance, the assessment rolls had been inspected by the board of State tax commissioners, and that it appeared to said board after such investigation, or by the written complaint of a taxpayer, that property subject to taxation had been omitted from the rolls, or individual assessments had not been made in compliance with the law.
“(2) Nowhere is it set forth in the petition that the order, Exhibit 1, was preceded by an inspection and an investigation by relator of the assessment rolls prepared by respondents, or by a written complaint of a taxpayer, and that such investigation or such complaint made it appear that property had been omitted from the rolls, or that assessments had been made in noncompliance with the law. The order of the commission and the petition both recite that ‘it was made to appear’ to relator that property in Detroit had been irregularly and unlawfully assessed.”

It is further urged by defendants that, in so far as the petition shows the alleged unlawful assessments may have been brought to the attention of the plaintiff by a verbal complaint of a taxpayer, or as the result of an inspection and investigation of the rolls made by some one other than the board of State tax commissioners, there are numberless conceivable mediums of information through which it “may have been made to appear” to plaintiff that assessments made by defendants were irregular or unlawful, but that there are only two mediums of information mentioned in the statute which would authorize the issuance of an order such as plaintiff attempted to make here; that the statute requires the happening of either one of two well-defined conditions precedent before an order, reviewing assessments and directing the assessor to appear with his. rolls, may be made. And it is claimed that the board of State tax commissioners, has no power under the statute to make such order, unless it is made to appear to it that property has been omitted from the rolls, or that assessments have been made in disregard of the law, after it has made its own inspection and investigation of the rolls, or upon receipt by it of the written complaint of a taxpayer, and that the order and petition in the present case are defective for failure to show the existence of one or the other of these facts.

It is well that we note here the changes that have been made, from time to time, in said section 152 of the general tax law. As originally enacted in 1899, this section fixed no condition precedent to a review by the State board such as is contained in the present law. The relevant portion of that original act reads:

“* * * And in case it shall appear, or be made to appear to said board that property subject to taxation has been omitted from said roll, or individual assessments have not been made in compliance with law, the said board may issue an order,” etc. Pub. Acts 1899, No. 154, § 152.

It will be observed that the act did not specify how or from what source the irregularity should be made to appear to the State board. It merely required that it appear, or be made to appear, in some way to the board that an irregularity had occurred in order to authorize an order for review. The 1899 act was first amended by Act No. 281, Pub. Acts 1905, so that the clause under consideration was made to read:

“And in case it shall appear, or be made to appear, by written complaint of any taxpayer residing in the assessment district, to said board that property subject to taxation,” etc.

It thus appears that where before the board could act on its own motion whenever it received from any source information pointing to irregularities, under the act of 1905, it could only order a review when the same was initiated by a resident taxpayer’s written complaint. The next amendment to section 152 was made by Act No. 8, Pub. Acts 1909, which eliminated the words following “taxpayer,” viz., “residing in the assessment district,” so that the section was made to read:

“And in case it shall appear, or be made to appear, by written complaint of any taxpayer to said board that property,” etc.

After this amendment a taxpayer residing outside the assessment district could file the complaint against the action of the local assessors. In 1911 the legislature, by Act No. 17, again amended section 152, and by such amendment once more restored to the board the power to call a review on its own motion upon compliance with certain conditions. The 1911 amendment read:

“And in case it shall appear after investigation by said board, or be made to appear to said board by written complaint of any taxpayer, that property,” etc.

This gave the board the right to order a review on its own motion after investigation. The act of 1911, it will be noted, did not specify in terms what sort of an investigation should be conducted. A further amendment was made by Act No. 153, Pub. Acts 1913, which act put the section into the form in which it stands today. The semicolon which appeared in the 1911 act at the end of line 7 of section 152, just before the clause beginning “and in case it shall appear after investigation by said board,” has been omitted, and the word “such” has been inserted in this clause just before the word “investigation.” The 1913 act, after stating that the local assessment rolls shall be subject to inspection by the State board, provides that “after such investigation” the board may order a review, and may direct the assessor to appear thereat with his rolls.

It is urged that plaintiff’s petition would not show good grounds for the issuance of the writ if the 1911 act were now in force, for the reason that the petition does not set forth that an, investigation of any sort, or a taxpayer’s written complaint, preceded the issuance of the order for review. This court has recognized the changes which have been made, from time to time, in the statute. Newport Mining Co. v. City of Ironwood, 185 Mich. 668 (152 N. W. 1088). The question raised by the brief of defendants is purely a technical one, which does not reach the merits of the case. It is the claim of plaintiff that the question is not properly raised by the answer, and is an afterthought of counsel. But, treating the question as properly raised by the pleadings, we think defendants’ criticism of the petition and order too technical and narrow.

The sole point raised is that the order and petition should affirmatively allege that the former was based on an inspection of the rolls. We do not think that position-well taken; but, if it were, it may be presumed that the State board had procured its information in the .manner prescribed by the statute. This was official action, and we see no reason why the general presumption as to the validity of official action might not properly be invoked. But the statute does not in terms require an inspection of the rolls by the board. The statute simply provides that:

“The said several assessment rolls shall be subject to inspection by said board of State tax commissioners or by any member, or duly authorized representative thereof.” Pub. Acts 1913, No. 153, § 152.

The board might get its information from any of the different sources pointed out by the statute. It is well to examine the preceding sections of the statute.

Section 148 provides for 'special meetings- of the board to be held at any place most convenient. The board and the members thereof, or any duly authorized representative thereof, shall have access to all books, papers, documents, statements, and accounts on file or of record in any of the departments of State, subject to the rules and regulations of the respective departments relative to the care of public records. The board and the members thereof, or any duly authorized representatives thereof, shall have like access to all books, papers, documents, statements, and accounts on file or of record in counties, townships, and municipalities. Said board may subpoena witnesses, and has power to examine witnesses under oath, said oath to be administered by any member of said board or by the secretary thereof. The board is then given power to examine books, papers, or accounts of any corporation, firm, or individual owning property liable to assessment for taxes, general or specific, under the laws of the State; and any officer or stockholder of any such corporation, any member of any such firm, or any person or persons who shall refuse to permit inspection, or neglect or fail to appear before said board in response to its subpoena, or to testify as provided for therein, shall be deemed guilty of a misdemeanor, etc.

By section 150 it is made the duty of the board to have and exercise general supervision over the supervisors and other assessing officers of this State, and to take such measures as will secure the enforcement of the provisions of the act, to the end that all the properties of this State liable to assessment for taxation shall be placed upon the assessment rolls, and assessed at their actual cash value, to confer with and advise assessing officers as to their duties under the act, and to institute proper proceedings to enforce the penalties and liabilities provided by law for public officers, officers of corporations, and individuals failing to comply with the provisions of the act. By subdivision 3 of said section 150, it is made the duty of the board to receive all complaints as to property liable to taxation that has not been assessed, or that has been fraudulently or improperly assessed, and to investigate the same, and to take such proceedings as will correct the irregularity complained of, if any is found to exist.

It is too narrow a view to say that the words “such investigation,” found in section 152, refer simply to the “inspection” of the rolls; it is more reasonable to hold that they refer to all the other avenues open to investigation. The words “inspection” and “investigation” are not synonymous; and it is more reasonable to say that the words “such investigation” refer to the investigation, and examination of witnesses and documents referred to in the preceding sections, as above noted. While the rolls are subject to the inspection of the board, the statute does not make it obligatory upon the board to make inspection thereof. A mere inspection of the rolls probably would not determine whether there was an improper assessment, but “such investigation,” as is mentioned in the preceding sections of the statute referred to, would naturally tend to throw light upon the subject. In construing section 152 we should look, not only to its general purpose, but also to the other provisions of the tax law that are in point. So considered, an intent is manifest to confer on the board of State tax commissioners authority to conduct a review whenever it is made to appear that the local assessment rolls have not been prepared in accordance with the law; in other words, when it appears that property is not being assessed at its true cash value, or that property is being omitted altogether. As stated, an inspection of the rolls alone might not, and probably would not, determine the existence of either fact.

Neither the order nor the petition is ideal or as full and explicit as might be desired, but we think that neither is fatally defective, and as the objection urged does not go to the merits of the case, and, having reached the conclusion that the act cannot be given the construction contended for, and that it was intended to give large powers of review to the State board, we are constrained to hold that the writ of mandamus should issue as prayed for by plaintiff.

No other question is raised by the brief of counsel.

The other questions raised by the answer have been disposed of adversely to the contention of defendants by the decisions of this court. See Board of State Tax Com’rs v. Board of Assessors, 124 Mich. 491 (83 N. W. 209); Board of State Tax Com’rs v. Quinn, 125 Mich. 128 (84 N. W. 1); Bialy v. City of Bay City, 139 Mich. 495 (102 N. W. 1033); Attorney General v. Board of Supervisors, 178 Mich. 513 (144 N. W. 883).

Let the writ issue.

Kuhn, Ostrander, Bird, Moore, Steere, Brooke, and Person, JJ., concurred.


author: Bird, J.

text:
    MICHIGAN MUTUAL HOME INSURANCE CO. v. PERE MARQUETTE RAILWAY CO.
    1. In suban ce — Fire Policy — Railroads — Negligent Setting of Fires.
    Where a witness saw a train pass near a field of stubble which was shortly after on fire and which set fire to the buildings on the farm of one who was insured by the plaintiff, and it was shown that the wind was blowing from the railroad towards the buildings, the evidence presented a question for the jury as to the origin of the fire, and under evidence tending to show, in defense, that the locomotive had been inspected and was in good condition, the question of its fitness for operation was for the jury.

      2. Evidence — Compromise and Settlement.
    Plaintiff was also entitled to the request to charge that in determining whether the engine was in good working order or not the jury might consider the fact that subsequent to the bringing of suit the defendant paid the property owner $2,800 for his loss, not covered by insurance; it was-not incompetent under the rule excluding proof relating to negotiations for compromise, upon evidence that the payment had not been made under circumstances that the court could infer an understanding that evidence of it should not be offered.
    S. Same — Province of Court.
    Whether the testimony is admissible in any particular case is a preliminary question to be decided by the trial court, and is analogous to the determination of the admissibility of confessions in criminal cases.
    4. Same — Amount of Claim — Insurance.
    Testimony having a tendency to show that the adjustment made with the property owner proceeded along usual lines, and was not so much a question of liability as of amount, authorized the court in receiving it as proof of, or an admission of, liability.
    5. Same — Amendment.
    And taking into consideration the fact that plaintiff offered no proof of negligence in operating the locomotive, it was not error of a harmful nature to permit an amendment of the declaration at the trial so as to count upon negligence in operating the engine; nor was defendant necessarily entitled to an adjournment on account of surprise.
    Error to Oakland; George W. Smith, J.
    Submitted June 28, 1915.
    (Docket No. 57.)
    Decided December 21, 1916.
    ' Case by the Michigan Mutual Home Insurance Company against the Pere Marquette Railway Company for the negligent operation of its locomotives and the setting of a fire. Judgment for plaintiff. Defendant brings error.
    Affirmed.

      Parker, Shields & Brown (DeWitt H. Merriam and Pelton & McGee, of counsel), for appellant.

      Perry & Lynch, for appellee.
   Bird, J.

In July, 1911, Ira Wilson was the owner óf a farm in Wayne county, lying near Elm station along the line of defendant’s railroad. On Sunday, July 9th, of that year, his farm buildings with most of their contents were destroyed by a fire which, it is asserted, originated on the defendant’s right of way and was communicated to his farm buildings through a dry stubble field. To satisfy two policies of insurance which Wilson held in plaintiff company, he was paid $2,636.95. Wilson also made a claim against the defendant railroad company, and after receiving the insurance money the defendant paid him $2,800 in settlement of his claim. The plaintiff insurance company then brought this suit to compel defendant to reimburse it for the amount paid on the policies, on the theory that the fire was caused by its negligence. The plaintiff had judgment for the amount of its claim, and defendant assigns error.

1. A directed verdict was requested because of the failure of the plaintiff “to show that defendant was responsible for the origin of the fire.” It appears from the testimony of Mr. Harvey E. Meldrum, who testified as to the origin of the fire, that he was at the station of Elm on the Sunday morning in question awaiting the arrival of an east-bound excursion train. That while so waiting an east-bound freight train passed the •station and within a few moments thereafter he saw a fire west of the station on the right of way near the fence; that when the freight train was approaching he looked in that direction, but saw no fire; that the fire spread to the wheat stubble and rapidly through it to the farm buildings 30 rods distant. It also appeared that the wind was blowing in the direction of the buildings and the ground was very dry. This testimony with other of like kind was sufficient to make a case for the jury on the question of the origin of the fire. Jones v. Railroad Co., 59 Mich. 437 (26 N. W. 662); Hagan v. Railroad Co., 86 Mich. 615 (49 N. W. 509); Clark v. Railway Co., 149 Mich. 400 (112 N. W. 1121, 12 Am. & Eng. Ann. Cas. 559); Potter v. Railway Co., 157 Mich. 216 (121 N. W. 808, 22 L. R. A. [N. S.] 1039); Union Ice Co. v. Railway Co., 178 Mich. 346 (144 N. W. 1033); Pennsylvania Fire Ins. Co. v. Railroad Co., 184 Mich. 375 (151 N. W. 578).

2. Appellant contends that it discharged the burden imposed upon it by the statute of showing that the machinery, smokestack, and fire box of the engine were in good repair, and that it was thereby entitled to have the jury so instructed. Three boiler makers, who were in the employ of the defendant in 1911, were produced as witnesses upon this phase of the case. One of them, John Doyle, the day inspector, identified his report (Exhibit 1), which he testified showed that engine No. 502 was O. K. — that is, in good condition. His testimony does not disclose upon what date he inspected the engine, or whether he did it personally, and we are unable to learn from Exhibit 1, as it was not returned in the record. The witness Harrington, the night inspector, testified that he inspected the engine on July 18th, and identified his report thereof (Exhibit 2), which he testified showed that the engine was then in good condition and needed no repairs. Exhibit 2 is not returned in the record. Neither inspector testified as to any personal knowledge of the condition of the engine at or about the time in question, and neither testified that his report was correct, although each testified that his report showed the engine to be in good condition. The third witness, Froy, testified that he knew nothing of the condition of engine No. 502 on the day in question, but testified that the netting or screen used thereon was the standard size mesh, in general use on locomotives, and that the life of the netting was about six months. Mr. Cummings, the engineer in charge, testified that on the morning in question he was hauling 50 cars, that it was down grade through Elm station, and that the engine was not laboring hard when it passed the Wilson premises. It also appeared from his testimony that if the spark arrester were in good repair it would emit some sparks at the rate he was running while passing the Wilson premises, although he was unable to give any opinion as to the life of such sparks.

The testimony bearing on the condition of the engine as appears by the record is not so clear and conclusive as to make it the duty of the trial court to determine the question as a matter of law. The testimony of defendant was fairly open to the inference that the netting or screen was out of repair, or it would not have emitted sparks with sufficient vitality to set fire to the right of way when the engine was coasting down grade. We are of the opinion that the whole question of the negligence of the defendant was a question of fact, and was properly submitted to the jury.

3. Error is predicated upon that portion of the charge which reads:

“In determining whether or not the engine was in good working order, the jury have a right to consider, among other circumstances in the case, the fact that subsequent to the time of this fire and some months thereafter, the defendant company paid to Ira Wilson, whose property had been destroyed, $2,800, on account of said loss.”

It is strenuously insisted by the defendant that this instruction was error, and that the testimony upon which it was based should have been excluded under the rule that what was said and done by the parties by way of compromising their differences was inadmissible. If the testimony were admissible at all it was upon the theory that the payment of $2,800 to Wilson by the defendant was an admission of its liability. The general rule regulating the admission of such testimony is stated in Manistee National Bank v. Seymour, 64 Mich. 59 (31 N. W. 140). In that case defendant Seymour was denying liability as an indorser on certain promissory notes sued upon. The proof was offered and received that on a certain occasion when he was having an interview with the bank officials, he offered to turn over his bank stock in payment of the notes. This court in passing upon the competency of the proof said:

“The testimony shows that the admission was not made upon an express condition that evidence of it was not to be given, or under circumstances from which the judge could infer that the parties agreed together that evidence of it should not be given. The general rule is that all admissions not expressly made to make peace, and all independent facts admitted during the negotiations for settlement, are admissible in evidence” — citing authorities.

See, also, Taylor v. Railway Co., 101 Mich. 140 (59 N. W. 447); Grimes v. Keene, 52 N. H. 330; Needham v. Sanger, 17 Pick. (34 Mass.) 500; Galveston, etc., R. Co. v. Hertzig, 3 Tex. Civ. App. 296 (22 S. W. 1013); Chicago, etc., R. Co. v. Rhodes, 21 Colo. App. 229 (121 Pac. 769); 1 Greenleaf on Evidence, § 192; Howland v. Bartlett, 86 Ga. 669 (12 S. E. 1068); Campbell v. Railway Co., 86 Mo. App. 67; Weiss v. Kohlhagen, 58 Or. 144 (113 Pac. 46); Colburn v. Groton, 66 N. H. 151 (28 Atl. 95, 22 L. R. A. 763).

There is much seeming disagreement among the cases in regard to the admission of this class of testimony, but a study of them discloses that the apparent conflict is due not so'much as to what the rule is as it is to its application to the facts. If the holding in Manistee National Bank v. Seymour, supra, is to be followed, we are of the opinion that the testimony was properly received. Whether the testimony is admissible in any particular case is a preliminary question to be decided by the trial court, and is analogous to the determination of the admissibility of confessions in criminal cases. Colburn v. Groton, supra.

In the present case the testimony discloses that Wilson made' a claim against the railroad company for $7,300. This appears to have been made to cover the insurance as well as the additional loss. After receiving the insurance money the defendant paid him $2,800 for the balance of his claim. It appears that a receipt was given to the defendant, showing, in substance, the purpose for which it was paid, but it was not introduced in evidence. About the only reason assigned in the testimony for the payment, aside from liability, was that the payment was made to avoid litigation because Wilson’s land lay along the right of way of defendant. It does not appear from the testimony that defendant denied liability, neither does it appear that payment was made with any understanding, express or implied, that evidence should not be given of the fact of payment, nor is there any testimony showing that when payment was made defendant was not to be prejudiced thereby, nor was it the result of a compromise. So far as the evidence tends to show anything concerning it, it shows the settlement proceeded along the usual lines, and that it was not so much a question of liability as of amount. With no further showing than this. we think the court was. justified in receiving the testimony.

4. The negligence alleged by the declaration was the failure of the defendant to keep the engine and machinery in repair. Upon the trial the declaration was amended upon the application of plaintiff so as to cover negligent operation of the engine. Complaint is made because the court refused to grant an adjournment which defendant claimed on account of surprise. In view of the fact that plaintiff offered no proof of negligent operation and did not finally claim any, we think the error, if it were one', was harmless.

We are of the opinion that the judgment should be affirmed.

Stone, C. J., and Kuhn, Ostrander, Moore, Steere, and Brooke, J J., concurred. Person, J., did not sit.


text:
    McKINLEY v. SMALL.
    1. Sales — Breach op Warranty — Bills and Notes — Evidence.
    In an action oil a promissory note, defendants claiming damages for breach of warranty of a stallion, which proved impotent, according to defendants’ evidence, testimony on plaintiff’s behalf that the horse was made weak by sickness and improper care, while in the hands of the defendants, raised an issue of fact that should not have been taken away from the jury.
    2. Same — Trial—Charge.
    Where there was evidence that the horse was defective when he was delivered, and not such an animal as the plaintiff had warranted, the defendants were entitled to have the question submitted to the jury under instructions that if the jury found that the horse was not sexually defective when he was delivered, and his failure to meet the terms of warranty was due to sickness and improper handling, plaintiff could recover on the notes.

      3. Same — Rescission—Warranty.
    And when the defendants were not relying on a rescission, but on the contract of warranty, which required the vendor to replace the horse if he did not conform to the provisions of the warranty, the court was in error in holding that defendants could not defeat the plaintiff’s action on the note for the reason that there had been no rescission and return of the stallion.
    Error to Newaygo; Barton, J.
    Submitted January 7, 1916.
    (Docket No. 61.)
    Decided December 21, 1916.
    Assumpsit by John McKinley against Fred L. Small and others on promissory notes of defendants. Judgment for plaintiff on a directed verdict. Defendants bring error.
    Reversed.

      Warner, Raudabaugh & Person, for appellants.

      George Luton and William J. Branstrom, for appellee.
   Bird, J.

This case was before this court on a prior occasion, and reversed because of the failure of the trial court to submit to the jury a certain question of fact. 178 Mich. 555 (146 N. W. 230). A retrial has been had, and it is here again for review. The main issue in the first trial was whether plaintiff should recover against defendants on a certain promissory note given by them for a Percheron stallion. The defendants resisted the payment on the ground that the plaintiff had not lived up to his warranty of the horse. The warranty was as follows:

“We guarantee the above named horse to be a reasonably sure foal-getter and transmitter of sixty per cent, of good producing mares owned by the above-named stockholders, provided he shall have plenty of exercise and proper feeding and grooming, care and handling, and in case he should not prove so, we agree to replace him with another of .the same breed and price, upon the delivery to us of the above named horse in as sound and good condition as he is at present.”

The defendants offered testimony tending to show that the horse was sexually impotent when he was delivered to them; that they notified plaintiff of the fact, and demanded another horse; that later they returned the horse to him; but that he never replaced him with another, in accordance with the contract.

Plaintiff replied to these contentions by introducing both lay and expert testimony that, if the horse were sexually weak, .he was made so by sickness, improper care and handling after he was purchased by defendants. The testimony on this, question clearly made it one of fact.

Another contested question on the first trial was whether the redelivery of the horse to plaintiff was a valid delivery, under the contract, and this court held in its former opinion that the redelivery was a valid one. The only question then which was open on the first trial was. whether the horse measured up to the warranty when he was delivered to defendants. This was likewise the issue on the second trial. The testimony on this issue was along the same lines on the second trial, but there was more of it bearing upon the defects of the horse and the causes which produced them. This issue was again one for the jury, and should have been submitted to them. They should have been instructed, in substance, that, if they found the horse was sexually what the contract of warranty represented he should be when delivered to defendants, and that his. failure afterward to measure up to the warranty in that respect was due to his sickness and improper handling after the defendants received him, plaintiff was entitled to recover the amount of his notes. On the other hand, if they found the horse was sexually defective when he was delivered to defendants, and therefore was not such a horse as plaintiff had agreed in his contract of warranty to furnish them, the plaintiff was not entitled to recover.

On the second trial the court was of the opinion that there had been no rescission of the contract by the defendants, and therefore directed a verdict for the plaintiff. While the record shows some talk about rescission, the real issue made by the defendants' testimony was whether plaintiff had lived up to his contract of warranty in furnishing the kind of horse he had agreed to furnish. The defendants, in fact, did not rely on a rescission. They relied on the contract. They insisted upon plaintiff making good his contract of warranty, and from their viewpoint the thing he had to do to “make good” was to furnish them another horse that would satisfy the terms of the warranty. This was the measure of damages agreed upon in the contract, and was therefore binding. Canavan v. Neeld, 189 Pa. 208 (42 Atl. 115); 35 Cyc. p. 633; Black v. De Camp, 78 Iowa, 718 (34 N. W. 625); Monroe v. Hickox, Mull & Hill Co., 144 Mich. 30 (107 N. W. 719); Twin City Creamery Co. v. Godfrey, 176 Mich. 109 (142 N. W. 362, 50 L. R. A. [N. S.] 805).

For the failure of the trial court to submit this question to the jury, the judgment must be reversed, and a new trial ordered. The defendants will recover their costs.

Stone, C. J., and Kuhn, Ostrander, Moore, Steere, and Brooke, JJ., concurred. Person, J., did not sit.


text:
      In re FOERSTER’S ESTATE. GUMTOW v. JANKE.
    1, Wills — Undue Influence — Instructions to Jury.
    Where the court in a will contest' charged the jury that if decedent did not voluntarily destroy the instrument, or if they were not satisfied he actually destroyed it, or if he did it upon a surrender of his own judgment and an abdication of his judgment to the people with whom he boarded, the instrument should be sustained, and on an examination of the evidence upon error the court found that there was no competent proof of the contention that contestant had unduly influenced him, held, that the instruction was erroneous, and the error was not cured by the subsequent instruction that there was no evidence of undue influence, which was clearly in conflict with the preceding instruction, and it would be assumed that if conflicting instructions were given the jury they might have followed the improper one.
    2. Same — Revocation—Evidence.

      Held, that in a previous opinion the legal phases of the case were fully considered by the Supreme Court and the law determined which should control the case, and the question of revocation was a question of fact, that the verdict was against the great weight of the evidence and a similar conclusion should be reached on the subsequent appeal. In re Foerster’s Estate, 177 Mich. -574 (143 N. W. 616).
    Error to Wayne; Hally, J.
    Submitted January 19, 1916.
    (Docket No. 30.)
    Decided December 21, 1916.
    Emil Gumtow and others presented for probate the last will of August Foerster, deceased. Anna Janke and others contested the allowance of such instrument. From an order denying the petition, proponents appealed to the circuit court. Judgment for proponents. Contestant Janke brings error.
    Reversed.

      Covert & Campbell, for appellant.

      James H. Pound, for appellee.
   Bird, J.

In this proceeding an attempt is made to probate an alleged lost or destroyed will of August Foerster, who was for many years a resident of Detroit. It is claimed that the will in question was made by him while he was in St. Mary's Hospital in August, 1910. Anna Janke, a sister of the deceased, and the other contestants, appear not to dispute the execution of this will, but resist the probating thereof on the ground that it was subsequently revoked by him by tearing and afterwards by burning.

The will was established in the trial court, and contestants have appealed. On a former trial the will was established, and upon an appeal to this court it was reversed on two grounds; namely, for failure of the trial court to instruct the jury that there was no evidence of undue influence upon the part of Anna Janke, and because the verdict of the jury was against the weight of the evidence upon the question whether testator had revoked the will in his lifetime. 177 Mich. 574 (143 N. W. 616). Upon a retrial the court was again requested to instruct the jury that there was no evidence in the case from which they could find that Anna Janke exercised any undue influence over her brother after he returned from the hospital. The court upon his own initiative charged the jury that:

“If you believe that August Foerster freely and voluntarily made the will offered in evidence, and you find from the evidence or its own construction that it bears evidence of being a fair will executed by a competent man, a man who understood what he was about, and who dictated this will, and if you find that he did not voluntarily destroy it, or if you are satisfied that he did actually destroy the said paper, or if you are not satisfied that he did actually destroy the said paper, or if he did, he did it upon a surrender of his own judgment, and an abdication to the people with whom he boarded, the contestants in this case, then you should sustain the will.”

1. That part of the foregoing instruction which advised the jury they could sustain the will if the testator actually destroyed it “if he did it upon a surrender of his own judgment and an abdication to the people with whom he boarded” is complained of as error, as it left it open to the jury to find that Anna Janke, the contestant, had unduly influenced him with reference to its destruction. We have examined the testimony relied upon to show undue influence upon the part of Anna Janke, and we are unable to find that there is any evidence in the record to support the contention. The record bearing on this question is substantially the same as it was upon the former hearing in this court.

But it is suggested that by the following instruction the jury were informed that there was no evidence of undue influence by Anna Janke over her brother:

“I charge you that there is no evidence of undue influence, exercised upon the decedent by Anna Janke, his sister, after his return to her home from St. Mary’s Hospital.”

This instruction was clearly in conflict with the foregoing instruction, and the situation is thereby brought within the rule that where conflicting instructions are given, one proper, and the other erroneous, it will be presumed by the court that the jury may have followed the erroneous instruction. Grand Rapids, etc., R. Co. v. Monroe, 47 Mich. 152 (10 N. W. 179); Madill v. Currie, 168 Mich. 546 (134 N. W. 1004); Lamb v. Township of Clam Lake, 175 Mich. 77 (140 N. W. 1009); Silverstone v. Assurance Corp., 176 Mich. 525 (142 N. W. 776).

2. Contestant contends that the trial court was in error in refusing to direct a verdict on her claim that testator revoked the will in question. In the former opinion of this court the legal phases involved in that question were fully considered, and the law determined which should control the case. Applying its legal conclusions there reached, it was held that the evidence on the question of revocation presented a question of fact for the jury. But it was further held on a review of the testimony that the verdict was against the weight of the evidence. We are of the opinion that the same conclusions must be again reached on these questions, as a study of the present record does not reveal any material variation from the former one.

The judgment is reversed, and a new trial granted. ■

Stone, C. J., and Kuhn, Moore, Steere, Brooke, and Person, JJ., concurred. Ostrander, J., did not sit.