text:
    Hiram W. Sibley and Isaac Bearinger v. William Ross et al.
    [See 88 Mich. 815.]

      Mortgage — Waivers of lien — Removal of timber.

    The question involved in this case is whether the evidence introduced on the trial would, if it had been submitted to the jury, have justified them in finding a waiver on the part of the defendants of their legal right to the possession of the timber from which the logs in dispute were cut, so as to entitle plaintiffs to the possession of said logs under the bill of sale given to them as security. And it is held that, in the light of the testimony, there could be no possible justification for such a finding, and that the trial judge properly so determined. An examination of the entire opinion and of the former decision is essential to a full understanding of the case,
    Error to Wayne. (Hosmer, J.)
    Argued June 27, 1894.
    Decided September 25, 1894.

      Replevin. Plaintiffs bring error,
    Affirmed.
    The facts are stated in the opinion, and in 88 Mich. 315.

      Weacloclc & Purcell (T. P. Tarsney and M. Brennan, of counsel), for appellants.

      Watts S. Humphrey (John D. Oonely, of counsel), for defendants.
   Hooker, J.

On August 4, 1886, one Gamble, who is plaintiffs’ assignor, purchased of one Webber certain lands, upon a land contract, for the sum of $6,500. This contract provided that no timber or logs should be •' cut or removed from said land, without the written consent of Webber, until full payment should have been made.

On November 24, 1886, Gamble made an agreement in writing with James G. Ross, defendants’ intestate, for the sale of all the pine timber upon certain other lands contiguous to those mentioned in the-contract with Webber, for $30,000. This contract provided that—

It is distinctly agreed that the ownership and possession of said lands and premises, and all the standing and other timber thereon, shall continue and remain in the party of the first part until the execution and delivery of the deed of conveyance aforesaid, and that the party of the second part shall not cut, or suffer to be cut, any timber upon said land, unless he shall have first made application .in writing therefor to ther said party of the first part, specifying in said application the amount of timber and particular description of land which the party of the second part desires to cut, and until- the party of the first part shall have first given a written permission to the said party of the second part to cut the quantity of timber or the description of land so specified and applied for.”

On December 30, 1889, Ross being dead, the defendants (with the exception of defendant Connolly), being his heirs, made a written contract with Gamble, whereby they consented:

That ivhereas, James G. Ross, doing business in the name of Ross & Co., and from whom the parties of the first part acquire title to certain pine timber standing and growing upon certain land hereinafter mentioned, as the heirs and successors of the same said James G. Ross, has made a contract with the said Henry Gamble, party of the second part, for the sale of said pine timber growing and being upon certain lands of the Lake Superior Ship-Canal, Railroad & Iron Co., the pine timber on said lands having been purchased by said Ross & Co., which timber is upon the following described lands [here follows description];
“ And whereas, the said party of the second part desires to manufacture the said pine t'imber growing and being upon the said lands, in wany board pine timber, for the Quebec market, and also into saw-logs; and whereas, said second party has not paid in full for the said timber, according to the conditions of the said prior contract made with the said Ross & Co., which contract was dated the 24th day of November, 1886; and whereas, there was due upon the said contract of November 24, 1886, to the said parties of the first part, as heirs of the said James G. Ross, deceased, the sum of 121,394.78 on the first day of November, 1889:
“It is hereby understood and agreed that the said parties of the first part consent to the said party of the second part manufacturing the said pine into said wany board pine timber and into saw-logs, according as the same will manufacture most advantageously into said wany board pine timber or saw-logs, the said timber to be manufactured during the winter of 1890, and prior to the first of May, 1890, by the said party of the second part; it being understood and agreed that the said parties of the first part will advance to the said party of the second part, as the work of manufacturing the said timber as aforesaid shall be carried on, four (4) cents per cubic foot, string measure, for all wany board pine timber so manufactured, when said timber shall be loaded upon the cars of the Duluth, South Shore & Atlantic Railway Co., and four (4) cents in addition when said timber shall land upon the banks of Waiska river or Waiska bay or upon the shore of Lake Superior, at such point or points as shall be agreed upon between the first and second parties, in Chippewa county, Michigan; it being further understood that the first parties shall advance to said second party the amount of the freight to be paid upon the said wany board pine timber, for shipping the same to Quebec, Canada, where the said timber is to be taken for sale.
“It is further understood and agreed that, for all saw-logs manufactured from said timber, said party of the second part shall receive advances from said first parties, when the logs are loaded upon the cars, two dollars per thousand feet, board measure, and when banked upon the said Waiska river or Waiska bay or the shores of Lake Superior, at such points agreed upon between the said parties as above stated, said party of the ■ second part shall receive from said first parties two dollars per thousand feet, board measure, in addition, by way of advances.
“ And it is further understood and agreed that the parties of thé first part shall sell the said wany board pine timber in the-Quebec market, and out of the proceeds of said sale shall retain seven (7) per cent, interest per annum upon the moneys so advanced to said second party, and five (5) per cent, commission upon the amount of said wany board pine timber sold, for services in and about said business, and shall deduct the same from the said proceeds, as well as the expenses of James Connolly, agent of said first parties, in looking after the said lumbering business while it shall be carried on by the said second party; and there shall also be deducted from the amount received-from the sale of the said wany board pine timber, as well as from the sale of the said saw-logs above mentioned, the amount due upon the said contract of November 24, 1886, to wit, the sum of $21,394.78, due November 1, 1889, together with interest that shall accrue under the provision of the said contract of November 24, 1886, up to the time of the final sale of the said timber and logs.
“ It is further understood and agreed that all of the said wany board pine timber so manufactured shall be not less than, nineteen (19) inches, string measure, average, and not less than twenty-four (24) feet, lineal measure, average, and as much larger and longer as possible, and the said timber shall be at least ninety-two (92) per cent, first quality, and eight (8) per cent, second class; the timber, when manufactured, to be measured and scaled in the woods, where manufactured, by a Quebec scaler, to be agreed upon between the parties; said scaler to be paid for his services by first and second parties, share and share alike.
“It is further understood and agreed that all of the said timber and logs so manufactured upon the said property shall be and remain the property of the said parties of the first part until all of said advances, interets, and commissions above mentioned, as well as the amount due for stumpage under the provisions of the contract of November 24, 1886, shall be fully paid. Said wany board pine timber, when manufactured, is to be marked diamond <r> on the sides, and logs are to be marked diamond <r> on the ends, by the said second party.
“It is further understood and agreed that all of the horses, harnesses, sleighs, and camp equipage and utensils are to be the property of the said first parties until said timber shall be paid for, that shall be used in the camps in manufacturing the said timber and logs upon the land in question.
“It is further understood and agreed that provided the said timber is not being cut by the said party of the second part, in a workman-like manner, and in accordance with the provisions of this contract, the said parties of the first part shall have the right to take possession of the camps' carrying on the work of manufacture of the said timber, without any notice to the said second party whatever, and carry forward the said work under their own directions, and at the expense of the said party of the second part, and shall account to the said second party for any profits that may arise after carrying out this contract herein contained, and after the deduction of the expenses in so carrying out the same caused by the failure of the said second party to execute the same according to agreement.
“It is further understood and agreed that the said second party shall give to said first parties an assignment of his contract which he holds from William L. Webber, of East Saginaw, Michigan, for the purchase of lands, or interest in lands, described as follows [here follows description], as collateral security to the said first parties that he execute and carry out the contract herein contained, and pay the balance due the said parties of the first part under the said contract of November 24, 1886, above referred to, made and executed with Eoss & Co. as aforesaid.
“ It is further understood and agreed that the said first parties shall render an account to said second party as to all sales made of the said timber and logs.
“It is further understood and agreed that whereas it is claimed by the said party of the second part that he has had negotiations for the sale of the said wany board pine timber to certain parties in Quebec, known as J. Burstall & Co., and has personally agreed with them for the sale of the same at certain prices, which prices have been agreed upon in writing, said first parties will allow the said parties referred to to have the first right of purchase of the said timber at the prices agreed upon with the said party of the second part, providing the timber shall be paid. for immediately upon delivery • at Quebec, in the spring or summer of 1890, but if not paid for immediately the parties of the first part will dispose of the same to other parties.
“It is further understood and agreed that the said parties of the first part shall dispose of -the said saw-logs so manufactured, and. out of the proceeds of the same shall deduct first the seven per cent, interest for advances, five per cent, for commission, and expenses of James Connolly in and about the business,- and the moneys due under the said contract of November 24, 1886, as above referred to, so far as the same shall not have been previously paid by the said second party, or fr'orh the sale and proceeds of said wany board pine timber above referred to, until the said interest, advances, commissions, and former indebtedness, and amount due under said contract of November 24, 1886, shall be fully paid.
“And it is further understood and agreed that the said saw-logs shall be the property of the said first parties until all of the said interest, advances, commissions, and amounts due under said contract of November 24, 1886, shall be fully paid/'’

On June 6, 1890, Gamble executed and delivered the following writing:

“Whereas, William L. Webber, of East Saginaw, Michigan, and Henry Gamble, of the same place, made and entered into one certain land contract on the 4th day of August, 1886, by which said Webber agreed to sell, and the said Gamble agreed to buy, the following described land, viz. [here follows description of. premises];
“Arid whereas, the said Gamble did on the 30th day of December, A. D. 1889, enter into one certain contract with William Ross, Frank Ross, John Theo. Ross, Frances Ella Ross, and Annie Ross, successors of James G. Ross, as parties of the first part, by which the said Gamble agreed to assign said contract for the purchase of the above-described land, upon conditions therein contained, to said first parties in said contract last aforesaid;
“And whereas, there yet remains unpaid upon the purchase price of said land the sum of $3,600; and whereas, said first parties to said contract last above named have agreed to advance the said sum of $3,600 to pay said Webber said balance:
Now, therefore, the said Henry Gamble, for a valuable consideration to him paid, and for the purposes stated in said contract of December 30, 1889, and to secure said Rosses for the amount advanced to pay the purchase price of said laná, does hereby sell, assign, transfer, and set over said contract to the Rosses above named, and hereby authorizes said Webber to make, execute, and deliver to them the warranty deed of said land specified in said contract, to said first parties in said contract Of December 30, 1889, for the purposes aforesaid.”

Webber deeded to the Ross heirs the same day.

Inasmuch as Gamble had. no right, under his contract with Webber, to cut or remove timber from the Webber tract until it should be fully paid for, he made the arrangement of June 6, whereby they (the Ross heirs) agreed to pay the remaining $3,600 to Webber, and take a deed of the premises from Webber. Gamble’s version of that arrangement is that, in accordance with the contract of December 30, he had contracted with Burstall & Co., of Quebec, to deliver to them 100,000 feet of wany pine, and, finding that he would not be able to get it from the Ross lands, he had a talk with defendant Connolly, who was agent of the other defendants, wherein it was agreed that he (Gamble) should go to work and put in the board timber on the Burstall contract, and make an assignment of the Webber contract, so that defendants could have a deed from Webber; they agreeing to pay the $3,600 to Webber, thereby releasing the lands from the restriction upon cutting.

Gamble got out a quantity of logs, and had them rafted to the mill of the John Spry Lumber Company. On July 17, 1890, he made a bill of sale of these logs, which are the logs in controversy, to the plaintiffs, as security for an advancement of $9,382.85. The lumber from these logs came to the possession of the defendants, from whom it was replevied by the plaintiffs. The circuit judge directed a verdict for the defendants, and the plaintiffs appeal.

Counsel for the plaintiffs contend that the evidence presented two questions which should have been submitted to the jury—

“1. If the Bosses had any lien on the Webber land, did they waive it, and permit Gamble to take the Webber logs for his own benefit?
“2. Whether or not the receipts given by Osgood in pursuance of the telegram of June 23 and the order of June 24 were procured by fraud.”

. Upon a review of a former trial of this cause, this Court construed the contracts referred to. See 88 Mich. 315. It was there held that—

“The several contracts and the deed must, therefore, be treated as a mortgage, under which the Bosses were secured for the advances made for the purchase of the Webber land, and the faithful performance of the contract of December 30, 1889. * * * The legal title was vested in the Bosses, subject to be defeated and vest in Gamble on the performance of the conditions. * * * Tbe mere fact that the Bosses permitted Gamble to lumber the Webber land with their land would not be a waiver of .their rights under this security, under the circumstances admitted upon this record by plaintiff Gamble.”

The Court said further:

“ Plaintiff [i. e., Gamble] insists, however, and so testifies, that the defendants had nothing whatever to do with the lumbering of the Webber lands, made no advances upon those logs or lumber, and no agreement was ever made that they should do so. He also insists that he never knew the contents of the order'given by him upon Osgood' to hold the lumber subject to the order of the Bosses; that he signed the'paper without knowing its contents. Under the plaintiff’s claim, it was a question of fact for the jury whether defendants made advances upon the logs from the Webber lands. It was also a question of fact whether the plaintiff knowingly signed the order to turn the lumber over to the Rosses which was manufactured from the Webber lands. * * * If the defendants did make advances upon the lumbering of the Webber lands, and the plaintiff [i. e., Gamble] so understood, and assented to it, and received the advances, it is very strong evidence that the defendants did not intend to release their security upon the Webber lands and the timber thereon, and that the plaintiff did not understand that the defendants intended so to do. These circumstances ivould show pretty clearly that the parties understood that the Webber lands were still held as security by the defendants. If, on the other hand, the advances were not made on the Webber logs, and not so understood or intended, it would be some evidence that the defendants were permitting the plaintiff to handle the Webber timber as he saw fit, and were taking their chances that he ivould apply the proceeds to the payment of his indebtedness to them under the contract.”

Counsel seem to argue that the former decision settles this case, i. e., that it was for the jury to determine both of the questions which they claim to have been in dispute at the last trial. This is certainly true as to the question of waiver, if there is any evidence of waiver upon this record. It is not necessarily so as to the receipts and order, ^.n explanation of these now becomes important. Osgood sawed the lumber under a written contract with Gamble, by which he agreed to deliver the lumber to Gamble, on the rail of vessels, when required. Connolly presented a receipt to Osgood, with the request that he sign it. Osgood objected and declined, but, Connolly insisting, he telegraphed to Gamble as follows:

“June 22, 1890.
“To Henry Gamble,
“jBast Saginaw, Mich.:
“ Connolly demands that I give Ross & Co. receipt for your raft, and hold lumber subject to their order. Wire me instructions. 1 S. W. Osgood.”

To this telegram, Gamble replied by wire as follows:

“June 23, 1890.
To S. W. Osgood,
“Chippewa House:
“Yes, you can give Connolly receipt.for my raft.
“ÍL Gamble.”

Thereupon Osgood signed the following receipt:

“ Sailors’ Encampment, June 21, 1890.
“Received from John Ross & Co. raft of pine logs marked G. and H., which are to be manufactured into lumber as per contract with Henry Gamble, and will hold the lumber produced of said logs subject, to the order of' John Ross & Co., they guaranteeing' payment of saw-bill on same, according to the terms of the contract.
“S. W. Osgood.”"

There were three rafts, and a similar receipt was given for each. They were dated June 21, August 20, and September 20, 1890, respectively. . On June 24 Gamble signed the following order at the request of Mr. Connolly:

“Bay City, June 24, 1890.
“S. W. Osgood, Esq.,
“Sailors’ Landing:
“Dear Sir: You will please hold, subject to order John Ross & Co., all the logs I have delivered and will deliver from Waiska Bay, — about 3,000,000 feet. I am going up to-morrow or next day, and will give you instructions how to out them into lumber, which lumber you will also hold subject to their order.
“Yours truly,
“Henry Gamble.”

As to these four writings, plaintiffs claim that Gamble was unaware of their contents, and did not understand that they contained anything in the nature of an acknowledgment of a claim by defendants upon the lumber. Gamble says that he did not know from Osgood’s dispatch “that it me'ant for them to get my logs,” and that “ I authorized Mr. Osgood to receipt for the raft because I wanted to hold him responsible fo.r the logs after they were delivered there.” As to the order signed at Connolly’s request, which he says is the only one of the papers that he saw, he testifies that he was in a hurry, and stopped to talk with him a minute; that Connolly said Osgood would not receipt, and that he ought to be responsible for the logs in case they got loose, to which Gamble replied, “Yes, he has got to receipt for the logs, because my contract with him is to receive them at the boom;” that Connolly said, “You had better give me some instructions to Osgood in regard to the sawing,” and that he replied, “All right; you write it;” and that he did so, and Gamble signed it without reading it. It is therefore possible that Gamble did not know that he had given a written order to Connolly for the delivery of the lumber to the defendants He had, however, previously sent a telegram to Osgood .which fully justified him in signing a receipt in the same language as that of the order; and there can be no claim that this was obtained by fraud, or through ignorance on the part of Gamble of its character. These papers, as stated by the Court upon the former hearing, unexplained, are “cogent •evidence in support of the defendants’ claim that they were not waiving any rights to this timber, and that Gamble was recognizing their right.” If, however, they were given under a misapprehension on the part of Gamble, it would •overcome the effect of such recognition, but it is not easy to see how it could tend in any way to show that the defendants were waiving any rights. By taking such papers, whether with the full knowledge and consent of Gamble, or by craftily misleading him, they signified no intention to waive anything. In short, the evidence of a waiver must be found elsewhere. The evidence was admissible to controvert the presumption arising from the giving of such receipts and order by Gamble, but the fact that Gamble did not know he had recognized defendants’ right, which certainly existed if it had not been waived, is no evidence at all that there had been such waiver by the defendants. So it becomes an unimportant question, hinging upon the other. If the court ought to have left thp question of waiver to the jury, they might consider this testimony as tending to counteract the effect of the order and receipts offered by way of denial of the waiver. If the court should not have left the question of waiver to the jury, the evidence under discussion has no materiality.

It remains to ascertain whether there was evidence in the case that would have justified the jury in finding a waiver. This waiver that is claimed amounts in substance to this: That the defendants, with the legal right to the possession of all the timber upon the Webber lands, by their conduct, waived their right to claim it from Gamble or his assignees. The amount of timber involved was large. In December these defendants were .making a contract in which they carefully preserved this right, and as late as June they took a deed of .the premises for the same purpose. Plaintiffs claimed that this deed was taken to secure only $3,600, but upon its face it contains evidence that the contract of December 30 was in mind at this time. It was drawn by Gamble’s counsel, by his direction, in the absence of Connolly. But the question depends upon what arrangements were made for the cutting of this Webber tract, and defendants must be content, for the present purpose, to take Gamble’s testimony 'as true. If that fairly shows a waiver, the case should have gone to the jury. In looking for the specific evidence in support of this alleged waiver, we find it pointed out in plaintiff’s supplemental brief. • It is -there said that defendant’s security upon the Webber land was not released by the assignment and deed of the Webber contract and land, “but by their express agreement, by their chosen representative, nearly two months before the assignment of the Webber contract and deed were made.” We are not cited to the place in the record where any such agreement is found, but an examination of Gamble's testimony shows ■that, finding that he was going to be unable to get enough wany board timber from the Eoss lands to fill the Burstal-1 contract, he proposed to Connolly to get it from the Webber tract. At this time he was in default upon that contract, and Webber had obtained a decree foreclosing it. Moreover, by the terms of the contract, he had no right to cut timber until Webber was fully paid. He says that he told Connolly he could get fifteen or eighteen thousand feet of board timber there, and that Connolly agreed to make advances upon it, the lumber to go on the Bur-stall contract. To do this, however, he got Connolly to agree to pay the $3,600 back to Webber as stated. He proceeded to cut timber, and a short time after he saw Connolly again, and said to him that he would like to put in the AVebber timber. The timber was not yet delivered on the Burstall contract, but he could conveniently put in the Webber timber then, and at the same time some of the timber from the Eoss land, near by. Witness continued as follows:

“ He was willing I should put in the Webber timber, but he said that they could not advance me on the Webber timber, because they said- what they wanted was to close up the land contract, — close up that deal.
Q. You mean the Webber saw-logs?
“A. No, but the Eoss land deal.
“ Q. Let me understand. Was it what Mr. Connolly said, that they would not advance you any money to cut into saw-logs the timber on the Webber lands?
“A. Yes, sir; I would have to make my own arrangements; that they would not ■ advance me any money on the Webber timber.- Then I said, of course I would have to put in the Eoss timber adjoining it, because if I left it there it would be in danger of fire, and he said, ‘All right,' if I could put that in they would advance me on that, but they would not advance me on the Webber timber, — I would have to make my own arrangements about that; and I told them I could do so. That was some time, I should say, along about the middle of April; perhaps the latter — sometime along the latter — part of April.”

Here, then, is the agreement that constitutes the alleged waiver; and, of this, all that is of any particular force as a waiver is the consent that Gamble might cut the timber, and the volunteered statement by Connolly that defendants could not advance any money upon it, and that he (Gamble) would have to make his own arrangements about advances, which he told them he could do.

This testimony should be read in the light of his cross-examination. He admitted that he told Connolly that he wanted money enough on the Webber land to pay the balance, so that he might cut off the board .timber to fill the Burstall contract, because the bottom had dropped out of board timber in Quebec, and he knew they could buy the board timber for 10 cents a foot less than they had agreed to pay him, and he was afraid that they would repudiate the contract. He asked these advances of Connolly for his owrr benefit. He continued as follows:

“ Q. What did you agree -to do in consideration of this $3,600 being advanced by Mr. Connolly?
“A. Agreed to cut off the board timber, and put it in. That was all, — about all the agreement there was about it. I agreed to give him an assignment of the property, and have the deed made out to them. I agreed to give them an assignment of the property, and harve a deed made to Boss & Co. If they would pay up the $3,600, I would have the deed made out to them, to secure them, and put the title in Boss & Co., — the title to this Webber land.
“ Q. Did Mr. Connolly, for himself or for the Bosses, agree to do anything further for you than to put in the $3,600?
“A. No, sir; he did not.
“ Q. Did they agree to release you in any way from any obligations you had made?
“A. I don't know of any. I don't think there was any conversation about any such thing.
“ Q. What did Mr. Connolly say that he would have to do before making that advance?
“A. I don't know as he said he had to do anything. He said he would write to the Rosses, and get instructions from them, and the next time I met him he said they would pay the money.
“ Q. Was that in February or March?
“A. No, I think that was — that would be later than— along the latter part of February to along in March some time. I would not be positive as to the time.
“ Q. Where were you when you had this conversation with Mr. Connolly?
“A. I was on the train, on the cars going down to St. Ignace, — going from the junction to St. Ignace, — and he was on the train. I could not remember the conversation. I know he said they would advance the money, and that I could have the deed made out to the Rosses. There might have been something else said.''

Being interrogated about the alleged waiver, he said:

“A. I could not give the date of the next conversation I had with him, but it was when I had made up mind to cut off the Webber timber, and spoke to him about it.
Q. What do you mean by the Webber timber? The board timber?
“A. The logs. I think that was along the middle or latter part of April, if I recollect right. My impression is that it was in St. Ignace. I would not be positive of that. It might be at the Sherwood House. I don't recollect. I am not clear on that point. I do not remember who was present at that time. I told Mr. Connolly that I would like to put in the Webber timber logs, — to lumber the Webber lands into logs, — and he consented that I might.
“ Q. Just what did you say to him?
“A. I could not state the conversation. As I remember it now, I told Mr. Connolly that I would like to lumber the Webber logs, — timber into logs, — as it was handy to the road, and that there was a good many bills back on the timber, — winter bills on the winter job, — and I owed considerable, and I would like to put myself in shape so I could 'pay it. He said that it was all right; that we could lumber it, but they could not advance me on the timber; I would have to make my own arrangements about it, on the Webber lands, — on the logs.
“ Q. They could not advance you on the Webber logs?
“A. Yes, sir; he said I would have to make my own arrangements. I 'told .him I could do so; that I would do so.
“ Q. For the purpose of putting in the Webber logs, you would make your own arrangements and get your own advances?
“A. I then said to him that it would be necessary to cut the Ross timber that was mixed in with it, because it would not do to leave it; and he said he would advance me on the Ross timber sufficient to put it in, but he could not advance on the Webber, because he said what they wanted was to close up the land account. They did not want to enter into any further details."

He further testified as follows:

“A. After the land was paid for I had — so long as the deed remained in Mr. Webber I had no right to cut it.
“ Q. When the deed went to the Rosses you had no right to cut it, except by an arrangement with the Rosses, did you?
“A. I understood— It was talked over, and they consented to it.
“Q. They consented to it under what provisions?
“A. There were no provisions about it, as I have stated. I stated all the conversation there was about it. They were to advance the $3,600 to Mr. Webber, and I was to go on and take off the board timber, and put it on that to fill the Burstall contract, which they would get the proceeds of, less the amount that it cost to put it in. That is about all the conversation there was. I could not detail the conversation. That is the substance of the conversation.
“ Q. Then he was to make the advances to you for getting out this wany board timber?
“A. Mr. Connolly; yes, sir."

Gamble further admitted that he did draw on Connolly for every dollar that he used in manufacturing the Webber timber into logs, except five or six hundred dollars, and that these drafts were honored. This five hundred or six hundred dollars, he says, was money that Weller (a contractor) owed him for supplies, and he turned it. He admits that he drew on Connolly to pay for the supplies. We have seen that upon a former trial it was contended that these advancements were not made for timber cut on the Webber lands, which was held to be an important point. Again, he admits that the logs from the two parcels were mixed up, together. Meantime he was writing Connolly frequently about money, and making statements of what he was doing, what logs were out, and the disposition he had made of them. He admitted receiving the telegram as follows:

“13th August, '90.
“To Henry Gamble,
“Sault Ste. Marie, Mich.:
“Am informed that Bearinger is making advances on logs. Answer.
“J. Connolly.''

To this he sent the following answer:

“Sault Ste. Marie, Mich., August 13, 1890. “To J. Connolly:
“Bearinger is not making advances on logs. Why not accept draft?
“H. Gamble.”

As late as June 6, 1890, in the assignment from Gamble, made in the absence of Connolly, by Gamble's attorney and at Gamble's direction, the following clause was inserted:

“Now, therefore, the said Henry Gamble, for a valuable consideration to him paid, and for the purposes stated in said contract of December 30, 1889, and to secure said Bosses for the amount advanced to pay the purchase price of said land, does hereby sell, assign, transfer, and set over said contract.”

It appears also from Gamble's cross-examination that he took an insurance policy upon the lumber, while at Spry's, payable to John Boss & Co. a^ their interest might appear, and drew on Connolly for the premium, which was paid.

In the light of all' these circumstances, should Connolly's alleged statement, “ You will have to make your own arrangements about that,” be construed into an agreement that Gamble might go on and lumber this land, using the timber to procure advances from other 'sources? In the first place, that language is as easily construed to have meant “You will have to make your own arrangements about getting money to get out the Webber timber” as about getting advances on the Webber timber. Or, if the latter construction is to be taken, it was as consistent with the meaning that he would have to arrange with the Boss heirs himself as that he was to be relieved from the burden of the restriction in his contracts, — a relief which it is very doubtful if Connolly had the power to grant him. It appears that, in one of these conversations, Connolly was promising Gamble to write for instructions, and it is quite reasonable to think that Gamble was given to understand that he would have to arrange for these .advances with the heirs, in person. It is significant that Gamble did not attempt to get advances elsewhere, • but actually did get them of Connolly. In the light of all this testimony, there could be no possible justification for a jury’s finding the waiver claimed, and the judge properly so determined.

The judgment will be affirmed.

The other Justices concurred.


source: Caselaw Access Project

author: Grant, J.

license: Public Domain

text:
    Mathew Jensen v. The Michigan Central Railroad Company.

      Railroad companies — Accident at crossing — Evidence—Contributory negligence.

    1. Where the jury, in a negligence case against a railroad company, find specially that but one of the required statutory signals was given before crossing a country highway, the negligence of the defendant is established.

    2. Where a witness, upon being asked on his cross-examination in regard to certain statements claimed to have been made by him at a given time and place contradictory of his testimony upon his direct examination, either denies making said statements or testifies that he does not remember making them, it is competent for the party so cross-examining, for the purpose of impeaching the witness, to introduce evidence^ tending to show that-he made said statements.
    3. Where a driver is unable to see an approaching train for a distance of 1281 feet from the crossing, it is contributory negligence for him to drive that distance, and attempt to cross the track, without stopping his team to listen.

    4. It is contrary to good sense and the best-considered authorities that one may walk a team over a hard road for a distance of 128-J- feet, while he and his companion are efigaged in conversation, upon the- assumption that no train will appear while they are traversing that distance, or that, if a train does approach, they will hear the whistle or the bell. A traveler, under such circumstances, not only endangers his own life and property, but the lives and property of those on board the train, and he will not be permitted to say that, if the whistle had been sounded, hej would have heard it, it being his duty to stop the noise he is making, within a reasonable distance from the railroad track, and listen.
    Error to Washtenaw. (Kinne, J.)
    Argued April 10, 1894.
    Decided September 25, -1894.
    Negligence case. Plaintiff brings, error.
    Affirmed.
    The facts are stated in the opinion.

      J. H. Aiken and Thompson, Harriman & Thompson, for appellant.
    ' John F. Lawrence, for defendant.

       How. Stat. § 3375, provides that a bell of at least 30 pounds’ weight, and a steam whistle, shall be placed on each locomotive engine; that said whistle shall be twice sharply sounded at least 40 rods before a crossing is reached, and after the sounding of the whistle the bell shall be rung continuously until the crossing is passed, under a penalty of $100 for every neglect. This provision, in so far as it requires the sounding of the whistle, does not apply to street crossings within the limits of incorporated cities or villages, unless the giving of said signal is required by the proper municipal authorities.

       See note at the end of the opinion.

   Grant, J.

Plaintiff was injured while crossing the defendant’s road over a public highway in the country, near the village of' Chelsea. The railroad at this point runs east and west. Parallel with and adjoining it upon the north is a public highway, three rods wide. The accident happened in the highway running north and south at right angles with the highway above mentioned. The house of one Downer was situated to the north of the highway, and east of an extension of the east line of the north and south highway. The railroad had two tracks. The accident happened at 9 o’clock in the morning. Plaintiff had drawn a load of poultry to Downer’s house with a team of two large horses and a lumber wagon. After unloading the poultry, Downer requested plaintiff to take a calf for him to the village. Plaintiff inquired if he would have to cross the railroad track, to which Downer replied that he would. The calf was in the field, and, while Downer went to get some bran for the purpose of catching the calf, plaintiff stood upon the ground by the side of his wagon, and testified that he then looked and listened for a train. His testimony upon this point is as follows: i

The house was north of me, so I could not see the railroad. I could see east. I could not see th,e railroad track because of an orchard and big maple tree, and picket fence and ivy on it. * * * I stood by my wagon and looked, but I could not see anything on account of the orchard and maple trees and ivy.”

Downer came with a pail of bran, and both got into the wagon, in which there was no seat. They stood up. Plaintiff drove, and Downer stood with one hand upon his shoulder. They were talking from that time until the accident occurred. Neither saw the train until the horses were close to the track. Downer, in the excitement, told plaintiff that the train was coming, and jumped from the rear of the wagon without injury. Plaintiff hurried his horses, and got them across the track, but the rear of the wagon was struck by the engine.

The distance from the point at which they started, to the railroad track, was 128£ feet, and the team walked the entire distance until the train was seen approaching. Plaintiff did not stop during that distance, but testified that he looked in both directions, and that he knew a train might be coming. The speed of the train was about 50 miles an hour. It is conceded by plaintiff’s counsel that, when plaintiff entered the east and west highway from the north, he could have seen the track at a point about 80 rods east, and from that point for nearly a mile further east, from which direction the train was approaching. The distance from the north line of the railroad track to the north line of the right of way is 18 feet. There is a slight elevation extending back from the railroad, and from the track to the top of this elevation is 33 feet. There is no cut in the highway, but its bed is even with the surface of the ground. To the east of the highway, and between it and the railrqad right of way, were some bushes, which, it is claimed, obstructed the view. The train was 500 feet long. It was demonstrated by actual experiment that from the north side of the east and west highway, where plaintiff entered it, for a distance of 23 feet, the track was'1 in plain sight for about a mile beyond these bushes, the eastern end of which was about halfway between the crossing and the whistle post.

The negligence alleged was the usual one in such cases,— failure to blow the whistle and ring, the bell. The jury, in reply to special questions, found that the bell was rung, but that the whistle was not blown. The negligence of the defendant was, therefore, established. The jury found that the plaintiff was not entitled to recover, because of his own contributory negligence. The court instructed the jury that a failure either to blow the whistle or ring the bell was negligence. The charge of the court was very clear and explicit. Errors are alleged upon the admission of evidence and the charge of the court.

1. Downer was a witness for the plaintiff. When upon the stand he was asked in regard to certain statements claimed to have been made by him contradictory of his testimony upon the direct examinationi These statements were either denied by him, or he testified that he did not remember them. The time and place of these conversations were fixed. The defendant introduced evidence tending to show that Downer had made such statements. One witness testified:

“I heard Mr. Downer say he never thought of the railroad at all. He said they were busy talking, and never thought about the railroad, and drove right on.”

The precise claim of plaintiff’s counsel is that these conversations were not a part of the res gestae, and were incompetent to charge the plaintiff with negligence. It is a sufficient reply to this to say 'that they were neither offered nor received for that purpose, but for the purpose of impeaching the testimony of the witness Downer. For this they were competent.

2. The jury, under the plaintiff’s own evidence, arrived at the correct conclusion. If it was a fact that the plaintiff, as he testified, could not see an approaching train for 128£ feet, it was clearly his duty to stop and listen. It is a settled rule that a railroad crossing is notice of danger, and that in the country it is lawful to run trains over these crossings at the highest rate of speed. It is contrary to good sense and the best-considered authorities that one may walk a team over a hard road, while he and his companion are engaged in conversation, upon the assumption that no train will approach while they are traversing that distance, or that, if it does approach, they will hear the whistle or the bell. Brady v. Railroad Co., 81 Mich. 616; Kwiotkowski v. Railway Co., 70 Id. 549; Shufelt v. Railroad Co., 96 Id. 327; Gardner v. Railroad Co., 97 Id. 244; Railway Co. v. Stommel, 126 Ind. 35; Railroad Co. v. Beale, 73 Penn. St. 504; Chase v. Railroad Co., 78 Me. 353; Flemming v. Railroad Co., 49 Cal. 253; Henze v. Railway Co., 71 Mo. 636; Pence v. Railway Co., 63 Iowa, 746; Merkle v. Railroad Co., 49 N. J. Law, 473; Railway Co. v. Adams, 33 Kan. 427. A traveler, under such circumstances, not only endangers his own life and property, but the lives and property of those on board the train. He is not permitted to say that, if the whistle had been blown, he would have heard it. It is his duty to stop the noise he is making, within a reasonable distance from the track, and listen. Under the circumstances of the case, plaintiff’s listening when 128-£ feet distant was not the exercise of proper precaution, and he was guilty of contributory negligence in driving upon the track as he did. It was impossible for the jury to reach any other conclusion than that very slight precaution on the part of the plaintiff would have avoided the accident. Plaintiff and Downer were so inattentive, or the horses and wagon were making so much noise, that they failed to hear the ringing of the bell. If they had stopped for a moment, when within 50 ‘ feet of the track, they would have heard the bell, and thus have received warning of the danger. >

It is not necessary to consider the alleged errors in the charge of the court. Where, under the plaintiff’s own case, the court should have directed a verdict, errors in the charge are immaterial.

The judgment must be affirmed.

McGrath, C. J., Long and Hooker, JJ., concurred with Grant,. J. Montgomery/ J., concurred in the result.
      railroad crossings.
      For cases bearing, upon tbe duty of looking and listening, or stopping and listening, before crossing or attempting to cross a railroad track, see:

        General Buies Applicable to the Subject.

      1. Railroad Co. v. Miller, 35 Mich. 374,.holding that a person about to cross a railroad track is bound to' recognize the danger, and to make use of the sense of hearing as well as of sight — and, if either sense cannot be rendered available, the obligation to use the other is the stronger — to ascertain, before attempting to cross, whether a train is in dangerous proximity; and if he neglects to do this, but ventures blindly upon the track, without any effort to ascertain whether a train is approaching, it must be at his own risk. Such conduct is, of itself, negligence, and should be so pronounced by the courts as matter of law.
      3. Mynning v. Railroad Co., 64 Mich. 93, holding that the legal presumption is that a person killed at a railroad crossing did stop, and look and listen, before attempting to make the crossing, and said presumption will prevail in the absence of direct testimony on the subject; but where there is affirmative, direct, and creditable testimony to the contrary, the presumption is rebutted and displaced.

        3. Guggenheim v. Railway Co., 66 Mich. 150, holding that while it is the duty of a traveler before crossing a railroad track, under all circumstances, to look and listen for an approaching train, he is not bound to the same degree of care where no train is due, and he has no knowledge of its approach, as when these conditions confront him.
      4. Houghton v. Railway Co., 99 Mich. 308, holding that a traveler is never justified in assuming that he can surely drive a certain distance, and cross a railroad track, before a train can reach the crossing, unless it be shown that he has had an uninterrupted view of the track 'for so great a distance as to justify such assumption.
      5. McCullough v. Railway Co., 101 Mich. 234, holding that while it has been held in many cases that, before venturing upon a railroad track at a point where the view of an approaching train is cut off, the traveler should stop and listen, the doctrine has never been applied to a case where the driver is at a distance from the track at the time of the accident, and the injury results from his horse taking fright at the train, and running away.

        Hlustrative Cases.

      1. Railway Co. v. Miller, 46 Mich. 532, where plaintiff, a farmer, aged 67 years, and somewhat deaf, was driving a spirited team of well-broken three-year-old colts, that had never seen or been near the cars, towards defendant’s track, down a narrow road, which, as it approached the track, had been cut down, leaving quite high embankments, which prevented a view of the track in the direction from which the locomotive approached. Plaintiff, when about 16 rods from the track, stopped his team and listened, and, hearing nothing, drove on, and, when within about two rods of the track, he saw the locomotive approaching, about 12 rods distant. Fearing that he could not control his colts where they were, plaintiff whipped' them up, and attempted to cross the track, and the rear of his buggy was struck by the locomotive. And it was held that the question whether plaintiff was guilty of contributory negligence was for the jury.
      2. Haas v. Railroad Co., 47 Mich. 401, where a team driven by plaintiff’s decedent collided with one of defendant’s regular passenger trains at a country highway crossing. Defendant’s road and the highway were both below the general surface of the ground, and an approaching train could only be seen occasionally by one driving towards the crossing. Decedent was familiar with the crossing, but, except that he checked his team for a moment some four rods from the crossing, he did not observe any precaution. The engine whistle was duly sounded when the crossing was approached. And it was held that the decedent was chargeable with negligence directly contributing to the collision.

        3. Palmer v. Railroad Co., 56 Mich. 1, where plaintiff, on^approaching a city street crossing on defendant’s road, driving a spirited team, looked north upon the track, and saw an engine pass in that direction, and, as he drove on, he kept a sharp lookout for what might be coming from the south, not apprehending any immediate danger from the north, after seeing the engine pass. While thus looking south he heard no signal or train, but, just as his team was crossing the track, he heard a man halloo. As he turned to look north, the engine came backing down with great’speed, and, before plaintiff could get across the track, the tender struck his load, threw him out, and greatly injured him. Some of the facts upon which it was claimed the contributory negligence of the plaintiff arose were disputed. And it was held that where, upon the undisputed testimony, it appears that the plaintiff exercised no care to avoid danger, the question then becomes one for the court; but that when the evidence shows or tends to show that the plaintiff was vigilant in his efforts in the right direction to avoid the* danger, but they did not go to the extent, for any reason, of securing hid escape, it is for the jury to say, under all the circumstances, whether he was negligent in not exercising more care, especially in a case where, if the defendant had performed its duty, the plaintiff would have been likely' to have avoided the danger altogether.
      4. Staal v. Railroad Co., 57 Mich. 239, where plaintiff.’s decedent was killed in the day-time, while trying to drive across defendant’s track at a city street crossing. And it was held that, in the absence of any knowledge as to what was in the mind of the decedent, he could not be conclusively found negligent, unless no sensible explanation of his conduct was reasonably possible; that he had a right to suppose that the defendant would not violate any legal duty, and would not fail to take reasonable measures to prevent mischief; that he could not be blamed for doing as seemed best under the circumstances, and it would not necessarily he reckless to go forward rapidly.
      5. Rhoades v. Railway Co., 58 Mich. 263, where plaintiff’s decedent approached a country highway crossing on defendant’s road at an acute angle, in a buggy drawn at an easy trot by a horse and a mule. A regular fast train, coming at the same time, and in full sight for a considerable distance if the decedent had turned his head, whistled sharply close by the crossing, and frightened the team so that it became unruly, and ran upon the track, and decedent was killed. Decedent knew the neighborhood, but was apparently ill, and drove absent-mindedly, without noticing the train until he was close to the crossing, though several of the witnesses saw the danger he was running into. And it was held that decedent was guilty of contributory negligence.

        6. Mynning v. Railroad Co., 64 Mich. 98, 100, where plaintiff’s intestate, a man possessed of the ordinary faculties, and well ■acquainted with the crossing upon which he was killed, on a dark and stormy October evening walked at a rapid pace towards and upon defendant’s spur track, without checking his speed, or stopping or looking or listening, or taking any precaution whatever to ascertain whether a train was about to pass. Others who were about to cross, whose opportunities for observation were no better than those of the decedent, saw and heard the train. The statutory signals were not. given. And it was held that the decedent was guilty of such contributory negligence as to bar a recovery.
      7. Matta v. Railway Co , 69 Mich. 109, 112, where plaintiff’s intestate was killed while attempting to drive across defendant’s track at a country highway crossing. The highway ran nearly north and south, and the railroad track crossed it diagonally, running north-east and south-west. About five rods north of the crossing, and on the east side of the highway, lying between the road and the railroad, was a cemetery, running about 35 rods along the highway. At its base at the north end, the cemetery was about 17 rods in width, and at the south end it came nearly to a point. It was filled quite thickly with oak grubs or young oak trees, most of them from 10 to 12 feet high, and bushy. The accident took place in the winter time, and some of the leaves had fallen from the trees. Decedent was going south at a pretty fair gait, •driving one horse attached to a light wagon. His face was to the west, and his back to the approaching train, which was running At the rate of 45 miles an hour. The ground was frozen hard, •and the train made but little noise in' running. Decedent’s head was down, and he did not look up while any one saw him until the feet of his horse were on the iron of the track. He looked up at the ringing of the bell at the cattle-guard, and whipped up his horse, but it was too late to avoid the collision. The decedent was familiar with the situation at the crossing, having passed over it almost daily. But for the trees in the cemetery, the train could have been seen plainly for a distance of 80 rods before reaching the crossing, and all of the witnesses to the accident but one testified that they could see it easily enough when it was passing behind the cemetery, the trees not being thick enough to obscure the view. And it was held that, under the decisions of the Court, the circuit judge was clearly authorized to instruct the jury to find for the defendant on the ground of the contributory negligence of the decedent.
      8. Kwiotkowski v. Railway Co., 70 Mich. 549, where plaintiff’s decedent was killed by being struck by a locomotive as he was stepping upon defendant’s track at a city street crossing. The evening wait dark and rainy. Decedent was seen to stop opposite an office, and apparently peer into the window. It was about 20 feet from the side of the office to the track, and about four feet from the window to the side of the office. As a person passed by the office, he could see down the railroad track about a block. A few steps more, and the track was in plain sight for a long distance. The train had a blazing head-light, which lighted the track for at least a block. The defendant’s employes were negligent in running the train at a rate of speed greater than that allowed by the ordinance. And it was held that the plaintiff’s intestate was negligent in not looking for the approach of the train; that, if he had looked, he would have seen it, as'there was no obstruction in the way, and no other trains or any other thing to distract or confuse his vision; and the action of the court in directing a verdict for the defendant, upon the ground that the facts established showed contributory negligence on the part of the plaintiff’s intestate, was sustained.
      9. Freeman v. Railway Co., 74 Mich. 86, where plaintiffs sued for the value of a horse and carriage destroyed by collision with an engine on defendant’s track at a city street crossing. And it was held that the driver, who was familiar with the situation at said crossing, was guilty of contributory negligence, it appearing that, if he had looked up the railroad track at any time while passing over the 40 feet last traversed before driving upon the track, he must have seen the approaching train, and thus been enabled to avoid the collision.
      10. Underhill v. Railway Co., 81 Mich. 43, where plaintiff’s decedent, while driving a horse and carriage across defendant’s track, was struck by the engine of a passenger train, and instantly killed. Upon the case as the plaintiff left it at the close of his testimony, the jury might have inferred that the deceased approached the track with due care, and stopped and looked and listened at the proper distance from the track, and, hearing no signal of an approaching train, acted as a prudent person would in attempting to cross the track. The defendant showed by the undisputed testimony of the fireman that he saw the decedent approaching the track at a distance of about 50 feet from the track; that, by her actions, he thought she was trying to get across the track ahead of the train; that she was “slashing” the horse with the lines; that she did not seem to pay any attention to the train, which was then about 800 or 400 feet from the crossing. And it was held that this testimony bore directly upon the negligence of the deceased, and, being undisputed, showed that she was guilty of contributory negligence which precluded a recovery.
      11. Guta v. Railway Co., 81 Mich. 291, holding plaintiff to have been guilty of contributory negligence in attempting to cross defendant’s track without looking to see if a train was approaching, his opportunities for seeing the train being as good as those of witnesses who saw plaintiff drive upon the track, when the train was approaching, as if it were not coming.
      12. Brady v. Railroad Co., 81 Mich. 616, holding plaintiff to have been guilty of contributory negligence in attempting to cross defendant’s track at a crossing so obstructed by intervening objects that he could not see a.train approaching from one direction until he was within 20 or 25 feet of the crossing, and then only for a few rods up the track, without first stopping his team, and taking some precaution to see if a train, which he knew was about due, was approaching.
      13. Richmond v. Railway Co., 87 Mich. 374, where plaintiff’s intestate, a street-car driver, was killed at a railroad crossing by a collision with nine detached freight cars, running at the rate of from 8 to 10 miles per hour, without any warning of their approach other than the noise made in running. The flagman was not at his usual post of duty, and gave no warning of danger until the horse was upon the crossing. After leaving another railroad crossing, about 185 feet from the one where the accident occurred, the driver could not have seen the approaching freight cars until within 20 feet of the crossing where he was'killed, and he did not look in the direction from which the cars were approaching, after reaching said point, until his horse was upon the track. And it was held that the question of his negligence (that of the defendant being apparent) was for the jury, who were to determine whether, under the circumstances, the driver had the right to rely, and how far, upon the absence of the flagman from his post of duty, and the want of any signal of danger from him, as an assurance of safety; and, if they found that an ordinarily prudent man would have acted as the driver did, the plaintiff could recover.
      14. Grostick v. Railroad Co., 90 Mich. 594, where plaintiff brought an action for the alleged negligent killing of her husband, while attempting, in the day-time, to cross defendant’s track with his team at a street running at right angles with said track. The deceased was a man 50 years of age, of good health, sound in mind and body, his hearing and sight not defective, and was thoroughly familiar with the crossing. When within 120 feet of the crossing, and until he reached it, the decedent had a clear view of the railroad track for a distance of 1,150 feet, in the direction from which the train was approaching. According to the testimony, he exercised no care whatever, but drove his team along without looking in that direction until he was struck and killed. And it was held that this was such carelessness as to bar a recovery.

        15. Thayer v. Railroad Co., 93 Mich. 150, where plaintiffs horse was frightened by three sharp whistles from a locomotive when within from 30 to 50 feet of defendant’s tracks, on a narrow approach on a highway, and plaintiff was thrown out of her buggy down an embankment. The highway ran east and west, and crossed the tracks over a fill between two cuts, one about 20 rods south of the highway, and the other from 40 to 80 rods north, both cuts being deep enough to hide an approaching train. The grade from the crossing north to the cut rose about 18 feet, and between the cuts the grade was raised from 3 to 6 feet above the adjoining lands, and at the crossing the railroad track was about 6 feet above the former grade of the highway. The road was soft; the morning misty. When 40 rods from the crossing plaintiff stopped, looked, and listened, and spoke to her daughter, who was with her, about listening for trains. On approaching the crossing, she noticed children coming south upon the track, and, when she reached a point 150 feet from the crossing, she again stopped, looked, and listened, .and then started up the approach. When within 30 feet of the tracks, her daughter told her that the children had left the track. She looked and saw the train, and then attempted to back away from it, and had backed about the length of the buggy, when the whistles were sounded, whereupon the horse, which was quiet and manageable until the whistles sounded, reared, and jumped down the embankment. And it was held that the question of plaintiff’s negligence was properly submitted to the jury.
      16. Van Auken v. Railway Co., 96 Mich. 307, holding that whether or not a traveler who is injured upon a railroad crossing in the open country on a dark night, by a train running without a head-light, is guilty of contributory negligence in failing to stop his team before entering upon the track, in order to listen for an approaching train, is at least a question for the jury, his view of the track being unobstructed other than by the darkness.
      17. Shufelt v. Railroad Co., 96 Mich. 327, where plaintiff’s wife was held to have been guilty of such negligence in failing to stop her team, and look and listen for an approaching train, before attempting to cross defendant's track, as to bar a recovery, it appearing that had she done so she could have seen the train when she was at a distance of from 18 to 20 feet from the crossing.
      18. Gardner v. Railroad Co., 97 Mich. 240, holding plaintiff to have been guilty of such negligence in not looking in the direction of the approaching train, by which he was injured, when within 5 feet of the railroad track, and when, if he had looked, his view would have been unobstructed for a distance of 250 feet, as to bar a recovery.

        ■ 19. McDuffie v. Railway Co., 98 Mich. 356, holding that a driver who stopped his team when within 12 feet of a railroad crossing, and at a point from which, had he looked, he could have seen an approaching engine but for the smoke and steam emitted by another engine standing on a side track near by, which obstructed his view, and who testifies that he looked and listened, and neither saw the approaching engine nor heard the ringing of its bell or sounding of its whistle, cannot be said, as matter of law, to have been guilty of contributory negligence in attempting to make the crossing.
      20. Houghton v. Railway Co., 99 Mich. 308, holding plaintiff to have been guilty of such negligence in failing to stop his team and listen for a fast train, which he knew was about due, while driving, after dark, a distance of 196 feet in approaching a railroad crossing, during which time his view of the track was obstructed, as to bar a recovery.
      21. McCullough v. Railway Co., 101 Mich. 234, where plaintiff was injured by being thrown from a cutter, in which she and her husband were riding, by reason of the horse taking fright at one of defendant’s trains, and running away. The train was several hours late. The' highway ran for about three-quarters of a mile nearly parallel with the railroad track, varying in distance therefrom from 35 to 200 feet, and finally crossed the track, near the place where the.accident occurred, at an angle of about 45 degrees. All view of trains approaching the crossing from the opposite direction was cut off, until within 35 feet of the track, by a hill, around which the road passed on a sharp curve. Plaintiff’s husband, who was driving, testified that he waited in a neighboring village for two hours to make sure that the train had passed, and on his way home was informed that it had passed, which information he believed to be true; that he was approaching the crossing, and, just as he reached the line of the right of way, the train came into view, distant less than 300 feet from the crossing, and that his horse turned about and ran away, upsetting the cutter, and injuring the plaintiff. Plaintiff and her husband both testified that they were' listening, the horse having been brought to a walk, and that they heard no signals. And it was held that it was for the jury to say whether or not the plaintiff’s husband was negligent in driving within 35 feet of the track without stopping to listen for a train.