text:
    HEMMILA v. CLEVELAND CLIFFS IRON CO.
    1. Master and Servant — Electricity — Warning Servant — Mines.
    Plaintiff, a young man of eighteen years of age, was employed by defendant mining company as a laborer and in the course of his employment, which was work upon the ground, he was ordered by his superior to climb a steel tower, upon which a crew were stringing electric Wires, for the purpose of releasing two of the wires upon the cross arm. After he had safely released one of the Wires he attempted to raise the second, upon which a team was drawing, above the arm, and was forced against the insulator, breaking his shoulder. He alleged in his declaration that the defendant failed to instruct him properly in the performance of his duties, and that he was required to go from the work which he was employed to do on the ground up the steel tower and to do work in which he had not been sufficiently instructed, and that defendant had failed to advise or warn him of the dangers connected with such employment and was negligent in failing to give proper signals and directions to other employees to loosen the wires and render his work safe: held, that evidence tending to sustain plaintiff’s claim presented a question of fact for the jury relative to the negligence of the defendant and questions of contributory negligence and assumed risk.
    2. Same — Assumed Risk.
    Where the servant understands the dangers of the increased risk or of the risks attendant upon the occasional act of servants, and he performs the act or attempts so to do, the master is not liable for any injury which he may sustain upon the sole ground of increased risk, or risk attending the temporary employment.
    3. Same.
    Where instructions to a servant are required, the instruction, to be adequate, should point out, not only the nature of the risk, but also the proper method of avoiding it, since the purpose of advising the servant how to do work that is accompanied by danger is to secure not only its performance, but his safety.
    4. Same — Fellow-Servants—Negligence.
    Nor could the claim of plaintiff be disposed of on the theory advanced by counsel for the defendant that the proximate cause of the accident was the failure of plaintiff’s foreman, who had immediate supervision of his work, to direct another servant to release the taut wire which a team was pulling on by decreasing the tension upon it.
    5. Same — Assumption op Risk — Change op Employment.
    Where the servant is engaged in doing work that he was employed to perform and is called upon to do work of a different kind, he assumes the obvious dangers incident to his changed employment.
    6. Same — Contributory Negligence.

      Held, also, that whether plaintiff was at fault in inferring that the work was going on as usual and that he could safely lift the wire and maintain his position oh the tower, fifty feet from the ground, was a question of fact for the jury.
    7. Same — Trial—Instructions to Jury — Charge.
    It was not error on the part of the court to instruct the jury under the peculiar facts of the case that if plaintiff’s assumption of risk was out of the case, the question of contributory negligence would also be out. Plaintiff was not required as matter of law to notify the foreman what conditions existed at the top of the tower or make an effort to ascertain the extent of the risk involved in lifting the wire over the arm, but if plaintiff recognized, or should have recognized and appreciated the risk of lifting the connection over the insulator, he assumed the risk: if he did not appreciate the risk it could not be said that he was guilty of contributory negligence.
    Error to Marquette; O’Brien, J., presiding.
    Submitted January 25, 1915.
    (Docket No. 23.)
    Decided March 17, 1915.
    Case by William Hemmila against the Cleveland Cliffs Iron Company for personal injuries. Judgment for plaintiff. Defendant brings error.
    Affirmed.

      William P. Belden, for appellant.

      Le Gendre & Driscoll, for appellee.
   Ostrander, J.

Defendant was constructing a line for transmission of electric power, and upon the particular occasion its agents were stringing wires upon steel towers which were about 57 feet high. Upon each tower there were three cross arms, and at each end of each of them was an insulator over which the wires were strung. A team of horses was used to draw the wires along over the cross arms. Lengths of the wire, or of some of the wire, were connected by means of a sleeve, through which the ends were run and bent, as illustrated:

Plaintiff was sent upon one of the towers to release two wires, one on the upper, and one on the next lower, cross arm, to' which they had been drawn, but over which the connections interfered with their passing. What was required to be done was to lift the wires so that the connections would pass the arms. He released the upper wire, and in releasing the one on the next lower arm he claims to have been injured. According to his testimony, he found the upper wire, or connection, drawn tight against the arm, or insulator, and the other and lower wire drawn still tighter, on account of the strain being put upon it by the team of horses which was 1,300 feet away upon the ground. The instant he released the sleeve, or connection, by lifting, which required the exercise of considerable force, it moved, or jumped ahead, jerking him down against the insulator, breaking his shoulder. His feet going down between braces on the tower prevented his falling to the ground. In doing the work, linemen were employed and ground-men and teamsters; the linemen being paid higher wages than the groundmen. Plaintiff was a ground-man, hired in September, 1909, and injured February 5, 1910. He was 18 years old.

In his declaration the plaintiff alleges that the work he was employed to perform was common work and labor upon the ground along the transmission line, under the orders and directions of one Stanley Scott, an agent of defendant, who was in charge of the work. After a statement of duties owed him by defendant, it is alleged:

“That defendant did not perform its said duties, or any of them, but on the contrary thereof, and in breach and violation of its said duties, the said defendant wrongfully, carelessly, and negligently allowed, permitted, and suffered him to be and remain uninstructed and uninformed how to do and perform all the duties which it required him to do, and wrongfully, carelessly, and negligently failed and omitted to instruct him how to perform all the duties which it required him to do and perform; and it wrongfully, carelessly, and negligently failed and omitted to warn him of the dangers incident to the performance of such last-mentioned duties, and wrongfully, carelessly, and negligently allowed, permitted, and suffered him. to do and perform such duties without being properly or adequately warned or instructed; and it wrongfully, carelessly, and negligently, unduly and unnecessarily hurried him in and about the performance of the duties which it expected and required him to do on the day of the occurrence of said injuries, and defendant, to wit, on the day of the occurrence of said injuries, wrongfully, carelessly, and negligently ordered and required him to go up on said tower No. 100 and loosen, disengage, handle, and place said wires which' had become caught upon said insulators, to wit, as aforesaid, which were duties outside of the scope _ of his said employment, and were work and duties which he had had no experience in performing, and was unused to performing, and were more dangerous to perform than said duties which he was hired and employed by defendant to do and perform, and which he was used to performing; and wrongfully, carelessly, and negligently ordered and required him to hurriedly do and perform such last-mentioned work and duties; and wrongfully, carelessly, and negligently failed and omitted to inform or warn him of the safe and proper method, way, and manner of doing and performing such duties, or of the dangers to which he might and would be subjected and exposed while performing such duties; and it wrongfully, carelessly, and negligently allowed, permitted, suffered, and caused him to do and perform such last-mentioned work in such a. way or.manner that he was liable to be injured while doing and performing the same; and it wrongfully, carelessly, and negligently allowed, permitted, suffered, and caused the wires on said connections which were caught as aforesaid in said tower No. 100 to stick and protrude beyond the ends of the sleeves, and such connections to be so unskillfully made and joined as to make the work of releasing, loosening, and handling them on said tower No. 100 at the time last aforesaid unnecessarily unsafe and dangerous, and allowed, permitted, suffered, and caused the work of stringing, placing, and stretching said wires to be carried on while such connections and wires were, to wit, in such last-mentioned condition, and in an unsafe condition, and allowed said team to pull upon said wires while plaintiff was engaged in and about the loosening, disentangling, placing, and handling said wires on said tower No. 100 at said last-mentioned time; and wrongfully, carelessly, and negligently allowed, permitted, suffered, and caused the work of loosening, disengaging, and placing said wires on said tower No. 100 to be done under and by an improper and needlessly unsafe method and manner; and wrongfully, carelessly, and negligently failed and omitted to adopt, use, or employ any safe method of doing and performing the work of loosening and disentangling said wires, and placing said connections on the southerly side of said insulators, and although (as defendant well knew, or in the exercise of ordinary care for plaintiff’s safety and protection would have known) the place and position which plaintiff occupied while doing and performing such last-mentioned work was an unsafe and dangerous one, and the way and manner in which such last-mentioned work was being carried on (especially the handling of said wires with and by means of said team at said last-mentioned time) was being carried on in a manner which needlessly exposed plaintiff to danger of injury, the said defendant wrongfully, carelessly, and negligently failed and omitted to warn or inform plaintiff of the dangerous nature and character of said place and position, or of the fact that he was so needlessly exposed to danger, and failed and omitted to explain to him the danger to which he was subjected and exposed while so doing and performing such last-mentioned work in said last-mentioned placa and position ; and wrongfully, carelessly, and negligently failed and omitted to furnish, provide, and maintain for plaintiff a reasonably safe place to work on said last-mentioned day; and plaintiff depends and relies upon each and all of the said wrongful, careless, and negligent acts, conduct, and breaches, failures, violations, and omissions of duty in this paragraph mentioned, alleged and set forth as grounds of recovery herein.”

The issues of fact were submitted to a jury, which returned a verdict in plaintiff’s favor, which the court declined to set aside. Defendant assigns as error the refusal of the court to direct a verdict for defendant, the refusal to give defendant’s fifth request to charge, the refusal to grant a new trial, and various of the instructions, to the jury, and argues in this court three propositions, which are:

“(1) That the court erred in refusing to direct a verdict for the defendant.

“(2) That, if the evidence presented a question of fact for the jury, the instructions given were nevertheless erroneous, conflicting, inconsistent, and ambiguous.

“(3) That the court erred in refusing to grant defendant’s motion for a new trial.”

The motion for a directed verdict was based upon several grounds: (a) That, adopting plaintiff’s version of the facts, the proximate cause of the injury was failure of the foreman to give, or cause to be given, proper signals to the teamster, or proper warnings of danger to plaintiff, both of which duties, if they were duties, were delegable, and for the purpose of giving them the foreman was a fellow-servant of plaintiff; (5) plaintiff has failed to prove a duty to instruct and the necessity for instruction; (e) plaintiff was aware of all risks and assumed them; (d) his own carelessness contributed to his injury.

The testimony for plaintiff tended to prove that work upon the towers was more dangerous than work upon the ground; and this would be the natural, and perhaps the necessary, inference if there was no testimony upon the subject. Although he had, on various occasions, 10 or 12 in all, climbed a tower, plaintiff had never been called upon to do any work upon them. It must therefore be inferred that there was some hazard, some risk, assumed by one working upon one of the towers which a groundman, working on the ground, did not assume. And it must be inferred that ordinary care in working upon a tower involved something not included in ordinary care in working upon, the ground. It requires no argument to support the proposition that a certain skill, making for safety, would be acquired by the ordinary man by experience in working upon a tower which one having no such experience would not be likely to possess. Skill so acquired serves not only to discover, but to avoid, untoward consequences of the risk. If a case is supposed where instruction of the servant is required, the instruction to be adequate would not only point out the nature of the risk but the proper method of avoiding it. The purpose of advising a servant how to do work which is at all dangerous is not only to secure performance of the 'work, but the safety of the workman. Whether a servant is doing work which he engaged to do, or is called from that to perform work of a different character, he assumes the obvious risks of the employment.

“I know of no rule that, where the servant fully understands and comprehends the dangers of an increased risk, or of a risk attendant upon a.temporary or occasional act of service, and he performs the act, or attempts to do so, the master is liable for the injury he may sustain, merely upon the ground of such increased risk, or risk attending such temporary employment.” Bailey, Master’s Liability, 222 et seq.; Gavigan v. Railway Co., 110 Mich. 71 (67 N. W. 1097).

Assuming that plaintiff understood that the particular manner of connecting lengths of wire which was in use at the time was what prevented the wire from passing smoothly over the cross arm and made it necessary for some one to lift it over, that he understood that the considerable force required in the particular case was made necessary because the wire was made taut by the action of the team, that when he lifted it it would jump ahead, can it be said, as matter of law, that he comprehended the danger of doing what he did do or the necessity for signaling the teamster to slacken the wire? It is to this point that in the last analysis the case comes. If he did not assume the risk, the case cannot be disposed of upon any theory of the negligence of a fellow-servant (the foreman) in failing to give signals to the teamster. The testimony for plaintiff tends to prove that, seeing the sleeves connecting the wires approaching the tower, the foreman in charge of all of the work told plaintiff to ascend the tower and lift the connections over the arms. When plaintiff started to perform the duty thus imposed upon him, the foreman stood near him watching operations. The wires did not go over the cross arms on the next tower, but ran down from the tower in question towards the earth and to the team of horses. The wire not only jumped ahead, when plaintiff lifted it, but to one side, away from the pole. It is obvious that he might have refused to lift either wire, and, having lifted the first and upper one safely, he might have refused to lift the other one until the team had been halted by signal and the wire slackened. Can it be said that plaintiff was at fault in inferring, if he did infer, or in assuming, that the work was going on as usual, that he was expected to lift the wire as he did lift it, and that he could do it safely and maintain Ms position on the tower 50 feet from the ground? The inference from plaintiff’s testimony is that the foreman was watching him, knew that he had not before been called upon to perform similar service, and from his experience and position knew the risk which was assumed.

Considering all of the circumstances, I am of opinion that whether plaintiff can be held to have comprehended the risk was a question for the jury. What has been said disposes of appellant’s contentions unless the court committed error in submitting the controlling question to the jury.

The court said to the jury, among other things:

“Now, gentlemen, it was the duty of the defendant, when it hired the plaintiff and continued him in its employment, not to order him to do work outside of the scope of his employment, if that work was more dangerous than the work that he was called upon to perform; and if it did order the plaintiff to do work outside of the scope of his employment, and that work was more dangerous than the work he was called upon to perform incident to his employment, then the defendant assumed any risk of injury that the plaintiff might incur while doing such work outside of his employment, and the defendant would be liable therefor.”

It is obvious that, if the subject was left here, the governing rule was not correctly stated. But in a connection not precisely immediate, nor so remote as to indicate that the statement quoted and the qualification now to be quoted were not to be considered together, the court, recognizing the true rule, said:

“Now, while it is true that the plaintiff would assume the ordinary and obvious risks that are incident to any work that he would be ordered to do, even work outside of the scope of his employment, he would not assume those dangers unless they were so open and apparent that a person of his age, intelligence, and understanding would have known and appreciated those risks and dangers. Now on that subject, gentlemen, you should take into consideration all of the evidence in the case. You have a right to consider the height of the tower. You have a right to consider the fact that the team was pulling on the wire. You have a right to consider the question whether experience was necessary for a man to understand how to protect himself in case he were handling that wire. You have a right to consider whether a novice could do that work as well as an experienced lineman. And if you find by a preponderance of the evidence that the risk was not one that was open and obvious, then, gentlemen of the jury, the question of assumption of risk is out of this case; and in that case the question of contributory negligence would also be out of this case, and the defendant would be liable then, if it failed to warn and instruct him; and there is no claim here on the part of the defendant that it did warn or instruct him of any dangers incident to releasing the wire.”

The instruction that if assumption of risk was out of the case the question of contributory negligence would also be out of the case is criticised, it being contended by appellant that it was nevertheless a question for the jury whether plaintiff should not have notified the foreman, Scott, of the conditions he found existing and made some effort to ascertain the nature and extent of the possible risk before lifting the connection over the arm. The argument amounts to this: That plaintiff may have been negligent in assuming a risk which he did not assume. “Negligence” is, of course, a failure to exercise due care, and what is due care depends upon the circumstances attending action or the failure to act. If it is determined that plaintiff should have recognized, or did recognize, and appreciate, the risk of lifting the connection over the arm, then he assumed the risk. If he did not recognize and appreciate the risk, and was not informed of it, and if he did what seemed to him the proper thing to do, how can it be said that he was negligent? It is a case in which the same group of circumstances must be relied upon to show either that he was negligent- or that he assumed the risk of injury.

I am of opinion that no reversible error is made out, and that the judgment should be affirmed.

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


source: Caselaw Access Project

author: McAlvay, J.

license: Public Domain

text:
    TAYLOR v. INDIANA & MICHIGAN ELECTRIC CO.
    1. Waters and Watercourses — Dams — Power Companies — Rivers — Flooding Lands- — Negligence.
    In the operation of a power dam in a river of this State the fact that the defendant owner and operator of the dam is a public utility engaged in furnishing electricity to the public, thereby becoming subject to the control of the authorities and subject to different rights and privileges from those acquired by ordinary corporations or persons in business of a similar character, was not sufficient to entitle it to flood the lands of riparian owners below its dam by discharging an unusual flow of water from its mill pond; and it could not be held, and the court did not err in refusing to charge the jury, that defendant had the right to discharge sufficient water at any time from the dam in question for the purpose of mating necessary repairs, notwithstanding damage or injury to lower riparian proprietors.
    2. Same — Riparian Rights — Reasonable Use.
    Persons or corporations who own or maintain dams acquire only the right to a reasonable use of the water in the stream subject to the rights of owners above and below them and are responsible for damages that accrue to upper or lower riparian owners from negligence in the operation of the dam.

      3. Same — Trial—Charge.
    Upon the trial of an action for negligently flooding the lands of plaintiff and plaintiff’s assignors, where the court failed to charge as fully upon the subject of what actually constituted negligence as the defendant desired, it was the duty of the defendant, if not satisfied, to present requests to instruct the jury in accordance with its views, and failing to do so it could not complain of a charge which fairly covered the general rules of negligence.
    4. Same — Trial.
    The court was not in error in refusing to charge the jury as requested by the defendant that it was the duty of the defendant to keep its waterwheels in repair and in condition to fulfill its contract regardless of the state of the water, and if the Wheels became out of repair, so as to threaten their efficiency, and it became necessary to> lower the water in the pond it had the right to discharge sufficient to lower it; that if in discharging a large volume of water in its tail race defendant had no intention to injure any person it was not liable; that it was not under obligation to hold the water at a point at or above the crest of the dam, but was absolutely entitled to discharge enough so as to maintain a constant head as demanded by its operations; that if an unusually large volume of water came into the pond and caused a freshet or discharge from their mill pond defendant had the right to allow it to escape so as to maintain a desired height or head; that the defendant was entitled to operate its wheels during high water as well as during low water, and therefore could discharge all such excess through its gates as might interfere with its operations, without incurring any liability.
    5. Same — Damages—Definition.
    Although taken by itself the definition of negligence given by the trial court to the jury in its charge that negligence consists in doing or omitting to do something which persons of ordinary prudence and care would not have done or would not have omitted to do under similar circumstances was not correct, when taken in connection with a definition and statement set forth in defendant’s request and given by the court, the error is held to have been cured so as not to require reversal.
    6. Same — Damages—Flooding Lands — Verdict.
    Defendant was not prejudiced by the action of the court in advising the jury to return a verdict for the separate amounts lost by plaintiff, or plaintiff’s assignors, together with the total amount which plaintiff was entitled to recover, unless there was ground for the claim that any amount or certain items were excessive: in the absence of such claim if there was any possible error it was not prejudicial.
    7. Same — Trial—Special Interrogatories — Jurt.
    Four special interrogatories presented by defendant to be given to the jury were not improperly refused by the court where the questions were not specific or limited to a definite time and the answers to the questions would not be controlling or conclusive; one question relating to the volume of water held properly refused because the volume of water referred to was not made clear, so that the interrogatory was ambiguous, and because interpreted in one possible way it referred to matters not in evidence.
    Error to Berrien; Bridgman, J.
    Submitted October 16, 1912.
    (Docket No. 105.)
    Decided March 18, 1915.
    Case by Thomas Taylor against the Indiana & Michigan Electric Company for flooding plaintiff’s lands. Judgment for plaintiff. Defendant brings error.
    Affirmed.

      M. L. Howell (O. W. Coolidge, of counsel), for appellant.

      Cady & Andrews, for appellee.
   McAlvay, J.

Plaintiff, for himself and as assignee of 23 others, recovered judgment against defendant in an action of trespass on the case for damages for negligently overflowing their lands and injuring and destroying crops growing thereon. Defendant has removed the case to this court by writ of error for review, and asks for a reversal on account of errors committed upon the trial of the case.

Defendant company owns and operates four or more dams on the St. Joseph river in this State, thereby controlling the water power of said stream for many miles above Berrien Springs. This water power, to the amount of 8,000 horse power, is utilized to generate electricity, which is sold and furnished by defendant to customers in Michigan and Indiana to be used for varied purposes. The power houses located at these dams are connected by trunk lines, so that the power from all of them is united and is available to all customers. The dam of defendant with which this suit is concerned, being the farthest downstream, is located at Berrien Springs. It has a head of 21 feet and a pondage or reservoir of 900 acres. It is constructed with the power house located part way out in the dam, which has on each side of it provision made for two units, each operated by eight 48-inch turbine wheels. Between the power house and the west bank of the river only one unit is installed. On the east side two units are installed. The discharge of water from the units on the east side is about 50 feet in width. It is flanked on the west side by the power house and on the east side by a cement wall which divides the discharge of the wheels from the discharge of the spillway. The water discharged from the wheels flows partly into the small channel and partly into tie main channel of the river. These channels are formed by an island about 200 feet below the power house. The main channel of the river is on the east side of the spillway, and over it are constructed six Tainter gates, each 20 feet wide, which are raised and lowered by machinery. Small gates are constructed to control tie water flowing into the wheel pits. These small gates were out of repair, and on May 12, 1909, work was commenced repairing the gates leading into the unit on the west side of the power house. This was completed May 27th. Work was commenced on the east side May 28th. As soon as this work was begun on the east side, the gates into the units where there were 16 wheels were closed, leaving the only water taken out of the pond for power purposes that which ran through the west eight wheels. The lands of plaintiff and his assignors are located along the river below this dam. The banks of the river at plaintiff’s farm were from 4 to 6 feet high above the surface of the normal flow of the water. It was the claim on the part of plaintiff, and the theory upon which his case was tried, that the overflow of these lands which occasioned the damages complained of was caused by the careless and negligent operation by the servants and agents of defendant of the gates to this dam during the time they were repairing the small gates which controlled the water flowing into the wheel pits of the 16 wheels on the east side of the power house; that after the repair began on the east side, in order to allow the workmen to work in the wheel pits, the water was shut off from the east two units.

From May 27th to June 5th, with the exception of that which was discharged through the west unit which had been repaired, and was operating continuously, practically all of the water coming downstream was held back and had gradually accumulated in the 900-acre pond above the dam, so that at 4 a. m. June 5th the water was running over the crest of the dam 3.12 feet, when two of the Tainter gates, which had been raised 2 feet, were opened to 5 feet, and at 7 o’clock four of these gates, including the two just mentioned, were opened to 7 feet and remained open for six hours, which lowered the water in the pond 2 feet in five hours, and caused the tailrace to rise 7 feet higher than the normal flow of the river. Plaintiff’s land was dry at 7 a. m. of this day, and three hours later this sudden discharge of water into this channel caused the water to overflow the banks of the river and cover this farm. Plaintiff contends that this flooding continued during the next day, June 6th, causing the water on plaintiff’s farm to rise 5 feet in 55 minutes, and that it was done by defendant for the purpose of lowering the water which had accumulated in the pond and then closing the gates to allow the water to again accumulate, while the water in the tailrace which filled the pits would quickly subside so that the men could continue repairs. The contention of defendant is that this high water was caused by excessive rains, and that it operated this dam with due care, without negligence,' and only as was necessary under the circumstances. The foregoing statement, although very brief and omitting all reference to the exhibits and technical testimony which the record contains, we think gives the essential facts necessary to an understanding of the case. All of this evidence of all kinds in the case was submitted to and passed upon by the jury, which returned a verdict in favor of plaintiff, upon which a judgment was duly entered.

The defendant and appellant, in presenting this case before this court, both on the original hearing and on the rehearing, has confined its argument to errors which were assigned upon certain portions of the charge of the court as given, upon the refusal of the court to give certain requests, and the refusal of the court to submit special questions to the jury.

We will first consider the errors defendant has assigned upon the charge of the court as given, and in doing so will give the entire charge of the court material to the issue, indicating the portions claimed to be erroneous in the order as marked alphabetically in the record, and bracketed by defendant.

“Charge of the Court.

“The defendant had a right to build its dam and impound the water in the St. Joseph river, and hold back such water in an artificial lake or pond (A) [but, by the building of that dam in question the plaintiff and his assignors were deprived of no rights that previously had belonged to them, except perhaps certain inconveniences that are not important to be considered in this case].

“(B) [The plaintiff and his assignors had the right to cultivate their lands and plant whatever crops they pleased along the so-called river bottoms, subject to the risk of overflow and damage from the waters of the river flowing in a natural way, and no matter how much damage plaintiff and his assignors may have suffered by reason of the overflow of water from the St. Joseph river from and after the 4th day of June, 1909, he and neither of them can recover in this action if the water for any reason so flowing upon and over their lands was not more than would naturally and necessarily have been cast upon their lands if there had been no dam at the place shown by the evidence, located near Berrien Springs.]

“By permission obtained from Congress and the secretary of war and the supervisors of Berrien county the defendant was permitted to build the dam in question. Under this permission the defendant had the right to pond and discharge the waters of the river in a reasonable way; (C) [that is, the defendant has a right to the reasonable use of the dam and impounded water in the prosecution of its business and in such varying quantities as the volume of the stream and its own interests made reasonably necessary,, keeping in view the rights of lower riparian owners, that is, those who own lands below the dam; but such permission does not give the defendant company the right to wilfully and negligently operate the dam in such a manner that the lower property owners below the dam and along the river will be injured].

“In this case the plaintiff claims that on the 5th day of June, and for 10 days or 2 weeks thereafter the water in the St. Joseph river rose and flowed oyer its banks, and the water injured and destroyed his crops and the crops of the various persons who have assigned their claims to him. Those assignments were proper enough, and, having been made, the claims of the various parties (if they have any) can all be adjusted in this one suit.

“(D) [The plaintiff and his assignors were what are known as riparian owners; that is, they owned and occupied lands along the St. Joseph river below the dam in question]. The simple fact that by an overflow of water from the river their crops were injured or destroyed would not render the defendant liable. And in this connection, I will charge you, as requested by defendant, that the defendant cannot be found guilty of negligence and held liable therefor without proof other than proof of the fact that the plaintiff’s lands, were overflowed. [Twenty-first. Given with following modification.] That means, the plaintiff or his assignors — that means that the fact that the plaintiff or his. assignors received an injury does not entitle him or them to recover on that fact alone; in addition he must show, not only that he received an injury (he or they received an injury), but that the defendant, through some wilful and negligent act which a prudent man would not have done, caused the injury to the plaintiff and his assignors, or either of them.

“(E) Now [negligence consists in the doing or omitting to do something which persons of ordinary prudence and care would not have done, or would not have omitted to do, under like or similar circumstances] .

“(F) [The plaintiff claims that at the time in question the defendant, by the dam before mentioned, had pooled or impounded the water in the St. Joseph river, preventing the natural flow of the river, until the fore bay or pond became full of water and was flowing over the crest of the dam; that the defendant then, without considering the rights of the landowners along the river below the dam, but wilfully and negligently, to serve some purpose of its own other than the reasonable use of such water, caused the gates of the dam to be opened so that a large volume and quantity of water was thereby suddenly discharging from such pond, and so greatly increased what would have been the natural flow of the river below the dam at that time, thereby flooding the lands of the plaintiff and his assignors, and that the lands of the plaintiff and his assignors would not have been so flooded and their crops injured and destroyed had the water been permitted to flow down the river uninterrupted and not interfered with by defendant and increased by the wilful and negligent operation of its dam before mentioned.]

“(G) [If you find that the defendant did wilfully and negligently operate its dam as claimed, and the crops of the plaintiff and his ■ assignors, or either of them, were injured as claimed, the defendant is liable to the plaintiff for all of the injury caused thereby to the crops of plaintiff and either or all of his assignors.]

“If, on the other hand, the jury find, as claimed by defendant, that at .the time complained of there was an unusual flood of water, and that by no act of the defendant was an unusual flood of water, and that by no act of the defendant was the natural flow of the water greatly increased in the river, as claimed by plaintiff, and that said defendant was in no wise negligent in the management of its dam at the time in question, the plaintiff cannot recover.

“I now instruct you as prayed by the defendant:

“ Tf the volume of water, naturally flowing, in the river without increase thereof by reason of any act of the defendant, overflowed the banks and inundated the property of the plaintiff and his assignors, then the defendant is not responsible in this suit.’ [Twenty-third. Given.]

“ ‘The case is founded upon a charge that the defendant was guilty of negligence in discharging water from its pond into the river and thereby flooding the lands of the plaintiff and his assignors, and there can be no verdict rendered against the defendant unless it was so negligent.’ [Twenty-fifth. Given.]

‘“Negligence is a disregard of duty. The plaintiff’s claim is that it was defendant’s duty to discharge the water from the pond in such a manner as not to greatly increase' the volume flowing in the river.’ [Twenty-sixth. Given.] The defendant had a right to discharge water from its pond faster than it flowed in, so as to reduce the elevation of the pond and facilitate the business of the defendant, and it would not be liable therefor.’ [Twentieth. Given, with the following modification.] Unless such water was negligently discharged and at a time and in a manner that a man of ordinary judgment and discretion would not have caused such water to be discharged, having in mind the rights of owners of land below such dam.

•“ ‘The defendant had a right to discharge water so that its wheels could be repaired or any other necessary repairs made to its dam, if the discharge of water was necessary to enable the repairs of wheels or other necessary repairs to be made’ [Eighth. Given, with the following modification] ; but this right should be exercised by defendant with due regard to the rights of owners of lands below the dam.

“If the jury find that the defendant is liable for injuries to the plaintiff and his assignors, or either of them, on account of the negligence of the defendant as explained, then you will proceed to determine the amount of damages sustained by the plaintiff and his assignors, or either of them.

“(H) [The measure of damages (if you find that the plaintiff or any of his assignors are entitled to damages in this case) will be the reasonable value of the crops injured or destroyed at the time the injury occurred. In determining the amount of damage so sustained, you will take into consideration all the facts and evidence of every kind produced before you by the plaintiff and by the defendant bearing upon the question of the amount of such damages that may have been sustained by the plaintiff and his assignors, or either of them, and as reasonable men determine the amount of damages so sustained by the plaintiff and his assignors, or either of them.]

“(I) [If yqu find that the plaintiff is entitled tp damages, you will determine the amount of damages sustained by the plaintiff individually, and each of the assignors who are entitled to damages, and report the separate damages sustained by each to the court, as well as the total amount of damages which you may find.]

“If the jury find that the defendant is not liable for any damages sustained by plaintiff or his assignors, or either of them, under the evidence and instructions of the court, your verdict will be not guilty.”

From defendant’s brief it appears that its principal objection to the charge of the court is that the court omitted to instruct the jury what acts and omissions on the part of the defendant would amount to negligence. In the 32 requests to charge which the defendant presented (6 of which were given) we do not find any which specifically cover the proposition, although there are several which indicate the views of defendant as to what acts on its part would not amount to negligence. These were requests which were not given by the court, and read as follows:

“First. It was the duty of the defendant to keep its water wheels in repair and in condition to fulfill its contracts, regardless of the state of the water, and if the wheels became out of order so as to threaten their efficiency, and in order to put them in repair it was necessary to lower the water in the pond, then defendant had the right to discharge sufficient water to SO' lower it.

“Second. If defendant, in operating its plant in the customary manner, found it necessary to lower the water in the pond, and to do so discharged a large volume of water into its tailrace, and in so doing had no intent to injure any person, then it is not liable in this case.”

“Ninth. Defendant was. under no obligation whatever to hold the water at a point at or above the crest of its dam; on the contrary, it had an absolute right to discharge sufficient water so as to maintain such constant head as was demanded by its operations, and it cannot be charged with negligence in so doing.

“Tenth. If an unusually large volume of water was coming into defendant’s pond, either because of a freshet, or because of a discharge from other ponds above, then the defendant had a right to allow such water to escape through its gates or wheels and to discharge sufficient of such water so as to maintain the head which it desired.”

“Fourteenth. The defendant had a right to operate its wheels during the high water, as well as during low water, and it had a right to discharge all such water through its waste gates as interfered with its operation, without incurring any liability thereby.”

From these requests to charge, and also from the briefs of its counsel and the oral argument upon rehearing, it appears that defendant’s case is planted largely upon the theory that the defendant is in fact a public utility, subject to control by public authorities in certain respects, and has thereby acquired, in the use and operation of its dams, other and different rights and privileges from those acquired by ordinary persons or corporations in the use and exercise of rights granted to them to maintain and operate dams upon the rivers of the State of Michigan; for example, if in the operation of its business of furnishing light and power to its customers, it becomes necessary at any time to use to its entire capacity, it had the right to do so, notwithstanding such operations released water impounded in its dams upon said stream in such large quantities that the riparian owners below were flooded and damaged; that such conduct could not be charged against it as negligence, and that all such damages were consequential; further, that notwithstanding freshets or discharge of ponds above, defendant had a right to discharge sufficient water at any time from the dam in question to maintain a head demanded by its operations or for the purposes of necessary repairs, and could not be charged with negligence if in so doing such large quantities of water were discharged by it that lower owners were damaged. This is not the law in the State of Michigan and never has been. The fact that a public utility, so-called, is operating dams on a stream in this State gives it no rights superior to an ordinary dam owner and no other or different liabilities. It is and always has been the law in this State that a dam owner cannot raise the water in his pond so as to flood and damage the lands of riparian owners upstream, or so manipulate the discharge of waters from his dam that they will flood and damage the lands of such owners downstream. All persons or corporations who own and maintain dams upon the streams of this State acquire only rights to a reasonable use of the water in such streams, subject to the rights of owners above and below them, and are held responsible for damages accruing to upper or lower riparian owners caused by the negligent operation of such dams.

It was the duty of defendant, if not satisfied with the charge of the court in regard to what would constitute negligence on the part of defendant, to present a request in accordance with its views.

In our opinion the requests of defendant above quoted were properly refused by the court.

The exceptions taken by defendant to portions of the charge of the court as shown above, except as we have already stated, have not been separately presented and relied upon, so that it is necessary only for the court to consider such exceptions as are not covered by what has been said already.

Defendant’s assignment (E) refers to the definition of the word “negligence” given by the court which, taken by itself, would not be considered as correct, but when taken in connection with such definition included in defendant’s request No. 26, which was given by the court, the mistake is corrected, and whatever of error may appear must be considered as error without prejudice.

Another portion of the charge, assignment I, requires some attention. It refers to the instruction of the court as to how the jury should arrive at the amount of damages if plaintiff was entitled to recover. Plaintiff brought suit for himself and as assignee of 23 others whose lands were flooded. The testimony in the case tended to show individual losses of the assignors, as well as of plaintiff, and the total amount which he was entitled to recover, if anything, was made up of these separate items. We can see no possible prejudice arising from this. No claim is made that either the separate items or the gross amount were excessive. If any error can be said to have been committed, it was error without prejudice.

Defendant also assigns error upon the refusal of the court to submit to the jury certain # special questions requested in writing by defendant, as follows:

“(1) Was the defendant negligent in permitting the water to raise in its pond at any time prior to June 7, 1909?

“(2) Was it negligent in opening its gates or discharging water from its. pond prior to June 7, 1909?

"(3) Was it negligent in permitting the water to accumulate in its pond at any time prior to June 15th?

“ (4) Was the volume of water flowing in the river from June 5th to 12th sufficient, at all times, to overflow the banks of the river upon the lands in question?”

The court properly refused to submit any of these questions to the jury. The first three questions were not sufficiently specific, not being limited to. any length of time prior to the dates named in each of them, or any particular days; therefore there could be nothing conclusive in the answers to them. It follows that the defendant was not entitled of right to have them put. The fourth question was properly refused because there was nothing in the question to indicate what volume of water was referred to. If it was the natural flow of the stream, it required the consideration of facts which were not in evidence. There was no evidence of the natural flow of the water along the premises in question, nor of the elevation of the different parcels of land involved in the case, except as to plaintiff’s own premises.

By statute special questions to the jury are required to be specific, in single, short sentences. Section 10237, 3 Comp. Laws (5 How. Stat. [2d Ed.] § 12943).

"Special questions to ‘the jury are intended for the purpose of a finding upon some particular question of fact in dispute on the trial.” Van Auken v. Railway Co., 96 Mich. 307-314 (55 N. W. 971, 22 L. R. A. 33), and cases cited.

“The answers to special questions must be controlling in the case.” Fowler v. Hoffman, 31 Mich. 215-220; Cousins v. Railway Co., 96 Mich. 386 (56 N. W. 14), and cases cited.

From an examination of the entire charge of the court as given, we are satisfied that the learned trial judge fairly and correctly submitted the case without prejudice to defendant. The record shows that plaintiff claimed that the flooding of his lands and those of his assignors was not caused by the sudden rising of the waters in the river, but by the negligent operation of this dam by defendant in negligently impounding and releasing large quantities of water while undertaking repairs to certain of the wheels; defendant’s claim and theory being that the high state of water was caused by heavy rains, and that in impounding and releasing water in large quantities while conducting repairs it was acting within its. rights, and if damages were caused to plaintiff and his assignors no liability attached. This was the principal dispute of fact in the case. Nearly all of the testimony on both sides bears upon the question. The court submitted all questions of fact to the jury in a charge which we have already said contained no. prejudicial error.

The errors assigned relative to the sufficiency of the declaration, the bill of particulars, and the assignments of claims made to plaintiff, and also to the refusal of the court to strike out all testimony on the part of the plaintiff as to the value of growing crops of corn on the premises flooded, have been examined, and we find no error was committed in overruling the objections of defendant as to these matters.

No prejudicial error appearing in the record, the. judgment of the circuit court is affirmed.

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


text:
    MARSHALL v. WABASH RAILROAD CO.
    1. Evidence — Carriers — Derailment — Operation op Trains— Opinions.
    In a personal injury action brought by a passenger for damages suffered in a derailment of one of defendant’s trains, plaintiff, who claimed injuries to his spine and to his back resulting in paralysis and other permanent injuries, being a practicing physician, was entitled to testify, although he admitted he became unconscious after his injury, that the cause of the loss of the use of his limbs was due to a concussion of the spine: the question did not depend upon what or how he struck, but upon the conditions which resulted from the injury to his person, the testimony tending to show that he had sufficient qualifications as a medical expert.
    2. Same — Witnesses—Conclusion.
    Testimony of a witness, who had been employed. by defendant upon a section or portion of the track on which the injury occurred, that, although he was not there at the time of the wreck, he went over the track and knew by the looks of the ties where the derailment occurred, and that the entire space there was in had condition, the ties being rotted and half of them defective, presented an issue for the jury as to the negligence of defendant, although upon cross-examination he was unable to state exactly the location of the wreck from the appearance of the ties and refused to state positively its exact location: a motion made to strike out the testimony of this witness was not improperly denied, since it clearly related to the place of the accident and to the time when the wreck occurred, and its weight was for the jury.
    3. Same — Expressions of Pain — Hearsay.
    Testimony of lay witnesses tending to show the manifestations, appearance and acts of the plaintiff after the accident, not occurring with anticipation that the witnesses would he called in the case, was properly received and was competent.
    4. Carriers — Negligence — Condition of Track — Directed Verdict — Proof of Loose Rails or Decayed Ties.
    The trial court did not err, in an action for injuries sustained by a passenger in a derailment, by refusing to direct a verdict for defendant upon evidence tbat tended to show a decayed condition of tbe ties at or about tbe place of tbe derailment and consequent loose condition of tbe rails and upon evidence tending to show tbat tbe train in wbicb plaintiff was riding was being operated at an unsafe rate of speed.
    5. Same — Degree oe Care — Question of Law and Pact.
    Tbe degree of care tbat must be observed by tbe carrier in tbe operations of its trains is a question of law for tbe court: tbe general rule is tbat carriers of passengers are required to exercise tbe bigbest degree of skill and vigilance.
    6. Same — Railroads.
    Considering tbe trial court’s instructions to tbe jury as a whole and as modified by other portions of tbe charge, it was not error for tbe court to state to tbe jury tbat it was tbe duty of defendant to exercise tbat bigb degree of care and caution wbicb tbe most prudent, careful and cautious man, engaged in similar business, exercises under tbe same circumstances, when it appeared tbat tbe court further advised the jury tbat such care must be consistent with tbe proper operation of its road to provide for tbe safety and security of plaintiff while transporting him, and tbat such care must be exercised in using and maintaining its roadbed with suitable ties so tbat they would be reasonably safe for tbe passage of passenger trains; tbe general effect of tbe charge being tbat tbe road and all instrumentalities for transporting passengers must be kept reasonably safe for tbat purpose, and there was no intention to inform tbe jury tbat defendant was an insurer of tbe safety of its passenger.
    7. Same — Instructions'—Safe Track.
    There was no error on tbe part of tbe court in charging tbe jury tbat it would make no difference whether derailment resulted from tbe spreading of tbe rails because tbe ties were .so defective that they would not bold tbe spikes or from the breaking of tbe T rail, for if they found such spreading or breaking was caused by the decayed and unsound state of tbe ties, where tbe declaration charged tbat tbe rails spread and broke and that by reason thereof tbe train went off tbe track, and where tbe plaintiff relied solely upon tbe unsound condition of the railroad ties and the charge of the court limited the jury to that specific issue.
    8. Same — New Trial — Verdict—Motions.

      Held, also, that the verdict was not against the weight of the evidence and that the damages were not so excessive as to require the court to grant a new trial.
    Error to Lenawee; Chester, J.
    Submitted January 20, 1914.
    (Docket No. 170.)
    Decided March 18, 1915.
    Case by Lewis J. Marshall against the Wabash Railroad Company for personal injuries. Judgment for plaintiff. Defendant brings error.
    Affirmed.

      Baldivin & Alexander, for appellant.

      Frank M. Sala and J. N. Sampson, for appellee.
   McAlvay, J.

This is the third time this case has been before this court. It was first brought here by defendant in 1910, when it was reversed and a new trial ordered. Marshall v. Railroad Co., 163 Mich. 88 (127 N. W. 788). It was again before this court in 1912, with a like result. Marshall v. Railroad Co., 171 Mich. 180 (137 N. W. 89). The third trial has also resulted in a verdict for plaintiff. Defendant brings the case to this court by writ of error, asking for reversal of the judgment upon errors assigned, which will be considered later.

The accident occurred February 2, 1908, upon the railroad of defendant company about 10 miles out of. the city of Adrian on the line to Detroit. Plaintiff had taken the train for Detroit that evening, and was riding in a chair car. At the place where the accident occurred the train left the track, the coach in which he was a passenger was overturned, and he was thrown to the opposite side of the car, striking into the transom in the roof of the coach and across the parcel rack, where he was cut about the head and severely bruised and injured in his back and spine, which resulted in paralysis of his lower limbs, injuring him permanently. The negligence charged against defendant is that it allowed the ties that were used in. its roadbed at the place of this accident upon which the steel rails were spiked to become decayed and unsound to the extent that they rendered the road not reasonably safe for the purpose for which it was used, and that by reason of such decayed and unsound condition the ties gave out and broke up, causing the train to become derailed. Also that defendant ran this train at an unreasonable rate of speed over such track.

In considering the case the court will follow’ the order which defendant has adopted in its brief, as follows:

“The errors discussed and relied upon to reverse the judgment may be grouped under the following heads:

“(1) The error of the court in receiving certain evidence introduced by plaintiff.

“(2) The error of the court in refusing to direct a verdict for defendant.

“ (3) The refusal of the court to give certain of defendant’s requests to charge.

“(4) Errors in the charge of the court as given.

“(5) Error in the refusal of the court to grant defendant a new trial and the findings thereon.”

The first group includes only assignments of error relating to the admission of evidence. The first of these exceptions was taken while plaintiff was testifying.

It had appeared from the testimony of the man who was riding with plaintiff at the time of the accident that immediately after it occurred he found himself down with a man on top of him, who was unconscious, and at once discovered that this man was the plaintiff. He discovered that plaintiff was bleeding badly, extricated himself from under him, got some stimulant from his grip, and came back to him, when he began to revive. Plaintiff opened his eyes, and witness gave him some liquor and offered to bind up his head. He refused to allow this, and immediately went to the aid of injured people who were screaming, and administered to their necessities. Witness saw him an hour later, giving a hypodermic injection to a lady. He saw him again that night and, with others, helped wash the blood from him and put towels around his head.

Plaintiff was called next to testify and after he had related the circumstances of the accident, had stated that he became unconscious, and proceeded to relate how he was taken to Detroit to Harper Hospital and the length of his confinement and described the extent of his injuries, his counsel asked the following question :

“Q. What was the cause of this loss of use of your limbs, Doctor?

“A. It was due to a concussion of the spine.

“Counsel for Defendant: We object to that. He says he can’t tell what he struck or how he struck, and that he was unconscious, and we move to strike it out.”

This motion was denied, and an exception was taken.

Plaintiff was a practicing physician of 14 years’ standing, and had testified in detail as to his condition and injuries arising from this accident. The objection is based entirely upon the fact that the witness could not tell what he struck or how he struck, and was unconscious. We have stated enough of the testimony to show that this period of unconsciousness was very short, and that his answer to the question did not depend upon “how he struck or what he struck,” but upon conditions resulting from the injuries received in that train wreck concerning which the record shows he was well qualified to testify. Under the objection made the court properly refused to strike out this testimony.

The next exception is taken to the admission of testimony of a certain witness who had worked for defendant in December and January preceding the wreck upon the section which covered the place where it occurred. He was not there at the time of the wreck, but was over the track and knew by the looks of the ties where it occurred. He testified:

“I don’t know just where the wreck commenced and where it left off. I know the entire space there and some of the ties were pretty badly rotted. Some rail lengths there — I should think a third of them and some of them half of them — were badly rotten.”

On cross-examination he testified that he was not able to tell from the ties the exact location of the wreck, where it occurred. He was not there at the wreck and only knew where it occurred from the condition of the ties, and refused to swear positively as to the exact location of the wreck. A motion was made on the part of defendant to strike out all of his testimony on direct examination with reference to rotten ties where the wreck took place. To the denial of this motion an exception was taken. Witness had worked on this section before and after the wreck, and had observed the condition of the ties and testified specifically in relation thereto. From the condition of the roadbed he testified he knew where the train had been off from the track. Because he said on cross-examination that he was not able to swear at the time of the last trial that there was a single decayed tie in the place where the wreck occurred it is alleged that the court should have stricken out his entire testimony relative to the condition of the ties. From our reading of the testimony we are satisfied that it related to the place of the accident and to the time when it occurred, and that the court properly refused to strike it out. It was a question for the jury to determine the weight which should be given it.

The four assignments of error which follow are upon the question of the testimony of lay witnesses as to expressions, acts, and manifestations of plaintiff after the accident which did not occur in the presence of these witnesses, in anticipation that they would be called as witnesses in the case. There can be no doubt entertained, after reading the testimony of these witnesses, that it comes within the rule which has been stated so often by this court that the testimony of lay witnesses under such circumstances is admissible. At the close of the introduction of evidence in the case a motion was made by defendant for a directed verdict for the following reason:

“Because plaintiff’s evidence does not prima facie prove the allegations of the declaration with respect to defendant’s negligence.”

As already stated, these allegations of negligence are that defendant “negligently and carelessly failed and neglected to construct and maintain said track with sound ties thereunder,” and negligently “permitted the ties and track to be and remain in an unsafe and dangerous condition for the passage of trains,” by reason of which this wreck occurred, and also that defendant ran said train “over said tracks so out of repair at an unreasonable and reckless rate of speed.” From an examination of the evidence introduced on the part of plaintiff bearing upon the question of defendant’s negligence, we are satisfied that there was evidence in the case, from the plaintiff’s witnesses, of the condition of the track at the place of the wreck and as to the decayed and rotten ties and the looseness of the rails by reason of the spikes not holding, and also as to the unsafe rate of speed at which the train was running at the time, which required its submission to the jury. We are satisfied that the court was justified in denying this motion.

The next group of errors assigned relate to the refusal of the court to give certain of defendant’s requests to charge.

The first of these was in effect a repetition of the motion to direct a verdict, and asked the court to charge that under the testimony in the case the defendant road, at the time of the accident, was in a proper, safe, and suitable condition for the operation of this train. Our disposition of the motion to direct a verdict contrary to the contention of defendant makes it unnecessary to discuss this proposition.

Errors assigned upon the charge of the court as .given:

Error is assigned upon the following portion of the charge of the court:

“In this case you are instructed that it was the duty of the defendant to exercise that high degree of care and caution consistent with the practical operation of its _ road to provide for the safety and security of plaintiff while transporting him from Adrian to Detroit, which the most prudent, careful, and cautious person engaged in the same business exercises under the same or similar circumstances, in using and maintaining its roadbed with ties that were suitable and proper as to soundness, so that they would be reasonably safe and fit for passenger trains to pass over them in reasonable safety. The failure to perform that duty would constitute negligence on the part of defendant.”

The contention of defendant is that this charge “would be holding the company to the highest degree of care known to the law, and would practically make it an insurer.” The relations of the parties to this litigation were those of carrier and passenger, and not those of employer and employee. The rule of duty as to the degree of care to be exercised in both cases is not the same.

Before analyzing and discussing this part of the charge excepted to it will be well to ascertain the law as laid down on the subject of the degree of care required of carriers for the safety of their passengers.

In Ruling Case Law, a late publication, we find the general rule upon this subject stated as follows:

“What degree of care a carrier must observe for the safety of a passenger, to exonerate it from liability for injury, is a question of law, and the generally accepted rule on this point is to the effect that carriers of passengers are bound to exercise the highest degree of care, vigilance and precaution.” 4 R. C. L. p. 1144, and authorities cited.

These authorities cover almost four pages in double column, which include cases cited from the Federal Supreme Court and the courts of last resort of a large number of the States, including many courts which are considered of the highest authority.

The text of the authority cited further declares:

“The rule as to the degree of care required of carriers of passengers has been variously stated, some courts employing the word ‘utmost,’ others ‘greatest,’ and still others ‘extraordinary.’ The difference in the statements, however, is merely a choice of words, and does not denote conflicting views. The reason for imposing such a high degree of care on carriers of passengers is that the safety and lives of their passengers rest entirely in their hands, the passengers having no control over the dangerous instrumentalities employed in their transportation, and public policy requires that a high degree of care be exacted.” 4 R. C. L. pp. 1146, 1148.

This court has frequently laid down the rule that the charge of a trial court to the jury in a given case should be considered as a whole, and that the portion objected to should be read and considered in connection with all other portions of the charge given bearing upon the same subject.

Before proceeding to determine whether the application of this rule in the instant case will be helpful, let us consider the specific statements .contained in this paragraph above quoted to which defendant excepts. A careful examination of it convinces us that the word “most” used by the trial court in the following connection:

“ * * * It was the duty of the defendant to exercise that high degree of care and caution * * * which the most prudent, careful, and cautious person engaged in the same business exercises under the same or similar circumstances”

—is the offending element. This must be so because later in the charge we find a like statement, in substance, with the word “most” omitted, accepted by defendant without question.

Further examining that portion of the charge objected to, we find that the whole paragraph, before reaching the objectionable clause, was modified by specifying the character of the high degree of care and caution referred to, by inserting the words “consistent with the proper operation of its road to provide for the safety and security of plaintiff while transporting him,” and a later modification was made by specifying in what direction and for what purpose this care and caution of a most prudent, etc., person was to be exercised, by inserting the clause, “in using and maintaining its roadbed with ties that were suitable and proper as to soundness so that they would be reasonably safe and fit for passenger trains to pass over them in reasonable safety.” It will be observed that the rule here laid down by the court was that the road and all instrumentalities for transporting passengers should be kept reasonably safe and fit for that purpose. In no portion of the charge relating to the degree of care required of the defendant railroad in this respect do we find that any other or different rule is given.

It seems very clear that there was no intention on the part of the learned trial judge to instruct the jury that defendant was an insurer, as appears from the next paragraph following the one which is criticised, in which the subject of defendant’s duty is again mentioned, as follows:

“You are further instructed that this defendant was not an insurer of the absolute safety of plaintiff as a passenger upon its train, but that it was only the duty of defendant company, when carrying plaintiff as one of its passengers on the train in question, to use and exercise through its officers * * * that degree and measure of care, prudence, and caution in constructing, repairing, and maintaining its road, ties, * * * and the running of its trains thereon, which a prudent, careful, and cautious person engaged in the same kind of business would have exercised under the same or similar circumstances and conditions.”

The foregoing paragraph is the same above referred to as containing the substance of the one objected to, with the exception of the word “most.” This court has criticised and held erroneous a charge that railroad companies were—

“legally bound to exert the utmost care and skill in conveying their passengers and are responsible for the slightest negligence or want of skillfulness either in themselves or their servants; that the law is that common carriers of passengers are bound to the utmost care and skill in the performance of their duty.” Michigan, etc., R. Co. v. Coleman, 28 Mich., at pp. 448-449.

The language in the instant case is very different-from the extreme language above quoted from the Coleman Case, supra, and in all the other cases cited and relied upon by defendant, and will not bear the construction contended for, and in our opinion could not have had the effect of misleading the jury. Of the charge above quoted the learned court said in that case:

“The language used would fairly permit the jury to find anything to be negligence which could by any possibility be avoided.”

Yet, later, in speaking of the degree of care required to be exercised by carriers for the safety of passengers, the court said:

“As compared with the care needed in business involving no possible- human risk, the care to be used may be properly enough called extraordinary.”

This designation of the degree of care required is within the terms used by the authority before cited, where it is stated that some courts in stating this rule employ the word “utmost,” others, “greatest,” and still others, “extraordinary” care.

“The difference in the statements, however, is merely a choice of words, and does not denote conflicting views.” 4 R. C. L. p. 1147, supra,.

The case of Michigan, etc., R. Co. v. Coleman, supra, was written more than 40 years ago, when railroads in Michigan and the United States were in their infancy and when the present complexity of speed, appliances, and instrumentalities used in railroading were undreamed of, and yet this court as then composed laid down the law that the degree of care which the carrier must observe for the safety of a passenger, to exonerate it from liability for injury, was “extraordinary.” Courts of today of equally high character are now declaring that carriers of passengers are bound to exercise the highest degree of care. There is no good reason why this court should not also so declare. Such holding does not relieve a plaintiff from proving negligence, nor does it make the carrier of passengers an insurer, but, considering the nature of the business, the agencies and instrumentalities used, and the high rate of speed attained, the law requires of the carrier the exercise of the highest degree of care and skill. This is an interpretation of the word “extraordinary,” adapted to modern exigencies.

In the instant case the neglect charged was in failing to furnish a reasonably safe and fit roadbed, by reason of unsound and defective ties, and in maintaining a too high rate of speed over such road, which contention has been determined by the jury in favor of plaintiff, thereby finding defendant was negligent in that respect, for which it should be held liable for injuries sustained. The charge in the instant case as given by the court which is excepted to did not declare that defendant carrier was an insurer. It amounted to no more than declaring that it was the duty of defendant to exercise the greatest care and caution, consistent with the practical operating of its road, in maintaining its roadbed with ties that were suitable and proper as to soundness, so it would be reasonably safe and fit for the transportation of plaintiff over it. This portion of the charge as given was not erroneous.

The following portion of the charge as given by the • court is also objected to:

“And it would make no difference whether the derailment resulted from the spreading of the rails because the ties were so rotten that they would not hold the spikes, or the breaking of a T rail, if you find such spreading of the rails or breaking of the T rail was caused by the decayed and unsound condition of the ties, which rendered the track and roadbed not reasonably safe.”

The contention is that this charge was erroneous because it was not supported by the declaration in the case, and that under the charge the jury was given the right to find that if the defendant was negligent under any circumstances, a verdict could be found against it, and that the jury was left to guess what caused the accident. The allegation in the declaration, after stating the unsafe and dangerous condition of the railroad ties permitted by the defendant, states:

“And while said train Number Four was passing over it the rails spread and broke and by reason thereof the said train was derailed.”

The record upon this trial, as well as upon the first and second trials, shows that as far as the defective condition of the road was concerned plaintiff relied solely upon the decayed and unsound condition of the railroad ties, and the charge of the court to the jury was that in any event they must find that the decayed and unsound condition of the ties caused this wreck. It is clear that there was but one proximate cause which it was claimed brought about this disaster, and that was the decayed and unsound condition of the ties, and the jury was not left to guess or conjecture such cause. This charge of the court is not subject to the criticism of the defendant, and was not erroneous.

The next error is upon the refusal of the court to grant a new trial. So much of the contention of defendant under this subdivision as was passed upon in what we have said relative to the refusal to direct a verdict in favor of defendant does not require further discussion. We have already said that there was evidence in the case which required that it be submitted to the jury.

It is next claimed that the verdict was not based upon the evidence and was against the weight of the evidence. From an examination of all of the evidence in the case our conclusion is that there was evidence in the case to support the verdict of the jury, and that it was not excessive.

No error appearing in this case, the judgment of the circuit court is affirmed.

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


text:
    DARLING v. GRAND RAPIDS, GRAND HAVEN & MUSKEGON RAILWAY CO.
    1. Master and Servant — Weight of Evidence' — Negligence — Comparative Degrees.
    Evidence tending to show that plaintiff was a motorman of an interurban car which was ordered to follow a car upon the same route and which, obeying the rule of the defendant company, left the station three minutes behind the other car or section; that there was some fog which obscured the view of the motorman; that the car in advance ran past a station to which it was compelled to return to discharge passengers and that it stopped an unusual or unreasonable length of time; that plaintiff was unable to see the car in time to avoid a collision, with conflicting testimony relative to the speed of the second section: held, to sustain a verdict for the plaintiff upon motion for a new trial based upon the contention that the verdict was contrary to the overwhelming weight of the evidence.
    2. Evidence ■— Surrounding Circumstances — Negligence — Master and Servant.’
    Testimony relating to the speed of the two sections immediately prior to the collision, the length of delay of the first section at the crossing because it was compelled to back up, and as to delay in failing to leave the station after so doing, also, as to failure to throw out a fusee upon the track, the speed of the second car, and other evidence relating to the physical facts connected with the accident was material and relevant: the court did not err in the reception of the same and in submitting the case to the jury.
    3. Same — Appeal and Error.
    The Supreme Court will only reverse a judgment in reviewing the denial of a motion for a new trial when the verdict is clearly against the great weight of the evidence.
    4. Same — Expert Testimony — Witnesses—Conclusions.
    Testimony of two physicians, in a personal injury action, called to examine plaintiff for the purpose of giving evidence at the trial, that certain motions of the limb were very painful to the man. and were limited and indicated an apparent fracture was not objectionable on the ground that the testimony was incompetent as an improper conclusion.
    5. Same — Hypothetical Question.
    There was no error in declining to strike out the answer of a medical éxpert, in response to a hypothetical question whether plaintiff’s injury might have resulted from a collision in which the plaintiff was thrown some twenty feet to the ground, that the injuries to plaintiff’s hip and spine, described in the question, could have resulted from the accident.
    6. Master and Servant — Comparative Negligence — Contributory Negligence — Street Railways — Interurban Lines.

      Held, also, that there was evidence tending to establish plaintiff’s theory that his negligence was less in degree-than that of the defendant’s employees in charge of the preceding car. (Act No. 104, Pub. Acts 1909.)
    Error to Kent; Perkins, J.
    Submitted January 21, 1914.
    (Docket No. 96.)
    Decided March 18, 1915.
    Case by Willis L. Darling against the Grand Rapids, Grand Haven & Muskegon Railway Company for personal injuries. Judgment for plaintiff. Defendant brings error.
    Affirmed.

      Carroll, Kirwin & Hollway, for appellant.

      Smedley, Linsey & Lillie, for appellee.
   McAlvay, J.

Plaintiff, who was in the employment of defendant, brought this action to recover damages for personal injuries claimed to have been received by him on the night of September 10, 1911, at Thompson’s Crossing, in Ottawa county, a point on the line of defendant’s railway, in a rear-end collision of two cars on the rear one of which he was acting as motorman. He recovered a judgment in the case, which defendant has brought to this court for review upon errors assigned.

The following are the material facts in the case necessary to be stated: Defendant operates an electric railway, the main line, of which extends from Grand Rapids to Muskegon, with a branch at a point on the main line called Grand Haven Junction. Cars on the Grand Haven branch are operated back and forth from Grand Haven Junction to Grand Haven, and meet all cars on the main line at the junction, where passengers going either way are transferred. The dispatcher’s office is at Fruitport, from which place orders to the train crews on each car are transmitted by telephone through station agents. Grand Haven Junction is a regular registering point where all car crews are required to sign their names and time of arrival and departure of cars. They get their orders at that point direct by calling up the dispatcher. On a busy day an operator is kept at the junction, and orders from the dispatcher are given to the car crews through him.

Plaintiff was an experienced motorman, and had been employed as such for about seven years before this accident, September 10, 1911. On this date he was working in that capacity on a freight car, and made his regular run from Grand Haven to Grand Rapids, arriving at the latter place between 6 and 7 o’clock in the morning. Shortly after he arrived home he was notified by defendant’s agent that he would be required to “triple” train 38 from Fruit-port, which was a point beyond Grand Haven Junction, to Grand Rapids, leaving Fruitport at 6:10 p. m. In pursuance of this order he left Grand Rapids on the 5:00 p. m. interurban car for Fruitport, and arrived there about 6:18, and went to the dispatcher’s office for orders, which he received to run from Fruit-port to Grand Haven Junction. The crew, plaintiff acting as motorman, took this car from Fruitport to the junction, and arrived there at about 7:15 p. m. A car then arrived over the Grand Haven branch loaded with passengers, which was to be run from the junction to Grand Rapids. The regular car from Muskegon also arrived there in charge of Harvey Town, motorman, and A. E. Munyon, conductor, which was made the first car, or section, of train No. 38.

Plaintiff was assigned as motorman to car No. 2 above described, which came from Grand Haven, with one William Smith, as conductor. This car was to run as second section of train No. 38. These cars were placed in position to make the run to the city of Grand Rapids, and the motormen received their running orders in writing from the dispatcher at the junction through the operator. When he received his funning orders plaintiff called the attention of the operator to a mistake in the number of his car, which was given in the order as 15, instead of 2, and told the operator to notify the dispatcher. This was done, and the mistake was at once corrected.

The first section of train 38 then left the station between 7:19 and 7:20, and plaintiff took the orders in duplicate, gave one to the conductor, and read the order to him, saying: “There is no meet order on it.” He then went to the front end of the car, took off the green light which was there, put it out, got onto the cab of his car, put down the lantern, reached out of the window and took in the green flag. At that time the conductor gave him two bells, and, as the three minutes’ time required by rule in which the second section of a train must delay before leaving after the first section, had not expired, he waited. The train-master of the road, who was there leaving on another car from Muskegon, said: “All right,.boys; go ahead when your time is up.”

Plaintiff started the car when the three minutes had expired. Johnson’s Crossing is the first public crossing east of the junction and the only one between the junction and Thompson’s Crossing. The distance from the junction to Thompson’s Crossing is 1.81 miles. We do not find the exact distance from the junction to Johnson’s Crossing stated, but the testimony indicates the distance to be about one-half mile.

The first section of train 38 carried about 55 passengers, and after it left the junction it ran at full speed, 40 or 45 miles an hour, until the conductor gave the motorman the bell to stop at Thompson’s Crossing, where a passenger was to alight. Between these two points on the road the weather was foggy and sometimes in clouds quite dense. The car overran this crossing, and it was necessary to back up to the platform, when the passenger left the car. Here is where this car stood when the rear section ran into it.

Between the junction and Thompson’s Crossing the track is straight and downgrade. This grade is sharper after going east from Johnson’s Crossing. The second section, after it left the junction until it reached Johnson’s Crossing, ran at full speed of from 40 to 45 miles an hour. At this crossing the motorman of the second section testifies he turned off the current, as required by rule, and allowed the car to coast down the grade. The speed became less, and a short distance beyond the car was going about 40 miles an hour.

When about halfway to Thompson’s Crossing, because the fog became heavier, the motorman tested the air brakes and reduced the speed. Before reaching the whistle post for Thompson’s Crossing the motorman applied the air again and slackened speed. The proper whistle was sounded at the whistle post. No bell from the conductor or other notice to stop at this crossing was given the motorman of the second section. No torpedo was upon the track and no fusee had been dropped by the first section. Suddenly, not to exceed 100 feet distant ahead, plaintiff saw the tail light of the first section. Plaintiff at once applied the air brakes, and, seeing that a collision was inevitable, started for and reached the door of his car when the collision occurred. He was thrown from the car 20 feet, striking on the ground, which rendered him unconscious for considerable time.

The foregoing is a brief outline of the facts in this case up to the instant of the collision. In order to intelligently understand the dispute between the parties to this litigation, it is necessary to state the claims of each as to the causes which resulted in the injury to plaintiff, for which he has brought suit.

On the part of plaintiff the claim is that he was operating his car with due care and without negligence; that the presence of the first section of this train at that time at Thompson’s Crossing was caused by the negligence of Conductor Munyon, who, after his car had run past this station, backed it up for a passenger to alight, and unnecessarily and negligently held it while he talked with, and made change for, a passenger until more than the three minutes’ running time between the sections had elapsed, and neglected to give his motorman the starting signal at the proper time. Plaintiff also claims that, if he was in any respect negligent, such negligence was of a lesser degree than the negligence of defendant, its officers, agents, and employees.

On the part of defendant it is claimed that plaintiff started his car from the junction in less than three minutes from the time the first car started; that plaintiff ran his car at a high and excessive rate of speed; that plaintiff should have so operated his car that he could have stopped it at all times within the range of his vision; and that the negligence of plaintiff was at least equal to the negligence of Conductor Munyon.

• This case is brought under Act No. 104, Pub. Acts 1909, of this State, entitled “An act to prescribe the liability of common carrier railroad companies to their employees.” The contention of plaintiff is that by reason of this statute defendant company is liable for the negligence of Conductor Munyon, who was in charge of the first section of train 38 on the night in question. The declaration consists of three counts, in each of which is charged the duty of defendant in the premises and the neglect of such duty by its agents and servants. Such duties and negligence are briefly stated in plaintiff’s brief, as follows:

“(1) It was the duty of the defendant, through its conductor and motorman, to see to it that said first car did not stop at Thompson’s Crossing longer than was necessary to allow the passenger to alight, and as soon as the passenger did alight it was the duty of this conductor to give the motorman the proper signal to go ahead.

“(2) The car being delayed at the crossing for a period of about three minutes, by reason of running over the crossing, backing up, and the conductor stopping to make change and talking with passengers on the rear of said car, it was the duty of Conductor Munyon to light a fusee and throw the same upon the track, so as to warn plaintiff that his car was in that vicinity, and especially so on account of the foggy conditions which existed that night.”

The allegations of the third count need not be stated, for the reason that the ease was submitted to the jury upon the first and second counts of the declaration.

From the requests of counsel of both parties submitted to the court to charge the jury, and also from the charge of the court, it appears that the case was prosecuted, tried, and submitted with reference to the following provisions of Act No. 104, Pub. Acts 1909:

“In all actions hereafter brought against any such common carrier railroad company, under or by virtue of any of the provisions of this act, to recover damages for personal injury to an employee * * * the fact that an employee may have been guilty of contributory negligence shall-not bar a recovery: Provided, that the negligence of such employee was of a lesser degree than the negligence of such company, its officers, agents or employees.”

A motion for a new trial was made by defendant, one of the grounds of which was as follows:

“Because the verdict rendered by the jury in said cause was not supported by a fair preponderance of the evidence, but, on the contrary, was against the weight of the evidence.”

This motion was denied, and exceptions duly taken.

The- errors assigned and relied upon by defendant which are discussed relate to the refusal of the court to grant a new trial on the ground that the verdict was against the weight of the evidence, and to the refusal of the court to strike out certain testimony of two physicians who were witnesses for plaintiff.

The contention urged most strongly on the part of defendant in its brief is that the judgment in this case should be set aside because it is clearly against the great weight of the evidence; in fact, it is claimed it is against the overwhelming weight of the evidence. This is the crucial question in the case.

Before proceeding with the consideration of this-question, a few. words relative to the statement of facts given in this opinion will be proper. This statement, in so far as it relates to the conduct and management of both sections of this train, from the time they left Grand Haven Junction until the collision occurred, is naturally, and to a considerable extent, based upon the testimony of the motorman and conductor of each section, for the reason that they were, in fact, the principal actors, and most closely connected with all of the incidents which were knit together in the entire transaction. There are some disputes and differences between these principal parties, but no more than ordinarily develop in this class of cases.

Other witnesses who were in each of these sections during the entire trip from Grand Haven Junction strongly dispute the ■ testimony of some of the train men, including plaintiff, and others as strongly favor such testimony. This testimony related principally to the time each section left Grand Haven Junction; the speed of the sections on the way down to Thompson’s Crossing; the delay of the first section at that crossing by reason of having overrun and backing up to discharge a passenger; the delay in failing promptly to pull out from that station on time; the neglect to throw out the fusee; also the speed of the second section in coming to Thompson’s Crossing; and many other matters. All of this testimony, as far as the physical facts surrounding the accident are concerned, was material and relevant to the issue, and clearly for the consideration of the jury.

The record shows that during the entire course of the trial the end and aim of each side was to show that each section of this train was operated with greater negligence than the other. When we consider the nature of this case we will appreciate that each party was warranted in taking such course, for the reason that, the case having been brought under Act No. 104, Pub. Acts 1909, quoted supra, the contest naturally resolved itself into one of the comparative negligence of the crews operating these sections.

In cases where the question of the weight of the evidence is presented to this court, the obligation always rests upon it to read with great care and weigh with deliberation all of the evidence, and in arriving at a conclusion to do so in accordance with the familiar rule we have repeatedly stated, that this court will only reverse a case upon the question of the weight of evidence when the verdict is clearly against the great weight of such evidence. Gardiner v. Courtright, 165 Mich. 54, at pages 61, 62 (130 N. W. 322); Fike v. Railroad Co., 174 Mich. 167, at page 208 (140 N. W. 592).

In onr determination, upon the weight of all of the evidence, we do not agree with the contention of appellant upon this question, and our conclusion is that the verdict for plaintiff was not clearly against the great weight of the evidence in the case. It follows that the circuit judge was not in error under the evidence in this case in denying a new trial.

Two other questions are raised and discussed by appellant relative to certain testimony of two physicians. Each of these physicians examined the plaintiff at or about the time suit was commenced, for the purpose of testifying in the case. The testimony of both of these witnesses was evidently offered as bearing upon the question as to whether the injury which plaintiff received at the time in question was permanent. Dr. Hastie was first called, and on direct examination testified as to his examination made upon the body of plaintiff in manipulating the right leg, stating, among other things, that:

“Bringing the limb away from the body — abduction — it was very limited, and evidently very painful to the man. The rotary motion also was very limited, * * * which indicated that there was some injury in this case to the hip joint. There was apparently an indication of a fracture.”

The following hypothetical question was asked him:

“Q. The history of the case shows that on the 10th of September, 1911, Mr. Darling was injured in the wreck on the interurban, * .* * and that it will appear when he takes the stand he suffers pain, considerable pain, more or less, all the time on the right of the spine in the small of the back. Whether or not that could come from the hip or injury to the hip?

“A. Yes; and the muscles moving the hip with this limited motion pulling against that, would give him pain.”

He further testified that, in his opinion, the injury would be permanent. No objection was made to this direct examination or to any question then asked. After proceeding with the cross-examination and showing that the examination of plaintiff was made preparatory to being a witness, counsel for defendant made the following motion:

“Now, if your honor please, I move to strike out the answer of the witness where he stated that the plaintiff was suffering pain, or said he was suffering pain.”

Counsel for plaintiff denied that the witness had so testified, and considerable colloquy occurred between counsel, which does not require quoting. The motion was denied by the court, and an exception was taken. The doctor was testifying to the condition in which he found plaintiff’s hip. He volunteered that a certain condition, explaining it, “would give him pain,” and further stated that a certain movement was very limited and evidently very painful. We do not think that any prejudicial error was committed in denying the motion.

The objectionable testimony given by Dr. Corbus is as follows:

“Doctor, the evidence shows that on the 10th of September, 1911, Mr. Darling, the plaintiff in this case, was a motorman on an interurban car running between this city and Muskegon; that he was on the rear car and ran into a head car, the car that was ahead; a serious collision resulted which threw him from the cab a distance of some 20 feet on to the ground; that previous to that he was well, strong, suffered no pain in his hip, or in the small of his back to the right of his spine; that he could walk normally; that he had received no other injury to his person since that time. Now, I will ask you whether or not, in your opinion, the condition you found there in his hip could result from such an accident?

“A. Yes.”

Counsel for defendant moved to strike out both, the question and answer as conclusions, incompetent, and not susceptible to the application of expert testimony. This was overruled, and an exception taken.

It appears that the witness testified somewhat out of the regular order of proof, for his convenience, and testimony was later introduced in the case to cover, as we understand, all of the facts included in the hypothetical question. We think the testimony was competent, as showing the character of the cause which might have produced the injury. This has been so recognized by this court. Smith v. Railway, 155 Mich. 466 (119 N. W. 640), and cases cited.

The case was properly submitted to the jury by the learned trial judge in a charge with which defendant in its brief finds no fault, and resulted in a verdict in favor of plaintiff. .The question was one of comparative negligence, and the finding of the jury was warranted by the evidence.

We find no prejudicial error in the case.

The judgment of the circuit court is affirmed.

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