author: Ostrander, O. J.

text:
    STONE v. FROHLICH.
    1. Sales — Inspection—Reasonable Time fob Rejection.
    The delay in inspecting and rejecting lumber bought on 60 days’ credit, beyond a reasonable time for examining and refusing the merchandise, was not excused merely because of inconvenience to defendant.
    3. Same.
    A delay of 38 days before inspecting, and of more than 60 days before notifying the shipper that the lumber was deficient in quality, was unreasonable, as a matter of law:
    3. Same — Recoupment.
    Where defendant's testimony showed that the lumber was short in measure, and the court, after asking defendant how much shortage he claimed, deducted the total amount thereof at its highest value from plaintiff’s claim, and directed a verdict for the remainder, defendant was not prejudiced.
    Error to Wayne; Rohnert, J.
    Submitted November 17, 1911.
    (Docket No. 100.)
    Decided December 29, 1911.
    Assumpsit in justice’s court by Fred J. Stone against Edward Frohlich for the purchase price of certain lumber. The cause was removed to the circuit court by appeal. Judgment for plaintiff on a verdict directed by the court. Defendant brings error.
    Affirmed.

      Lucking, Emmons & Helfman, for appellant.

      Fred H. Aldrich, for appellee.
   Ostrander, O. J.

Defendant orally gave plaintiff an order for a car load of lumber. The car was loaded and shipped from some point in Kentucky, January 17, 1908. The invoice went forward to defendant the same day. The terms were 2 per cent., 10 days, or 60 days acceptance. The invoice shows a total of 11,835 feet. There were two sizes of lumber, 5-4 and 4-4, and in the invoice the quantity of each size is divided and billed under different prices per thousand, as follows:

2,293 ft., 5-4, price..............-.................$26 00
5,621 “ “ “ 30 50
1,921 “ 4-4, “ 25 00
2,000 “ “ “ 27 00

The car was placed on defendant’s siding on the morning of February 11th, and was unloaded by defendant on the 17th. Defendant paid the freight. No settlement having been made for the car, plaintiff sued the defendant in justice’s court. There was an appeal to the circuit court, where the cause came on to be tried June 7, 1910, resulting in a verdict for the plaintiff, directed by the court, for $294, which was exclusive of the freight paid, and which allowed the defendant for 20 feet of lumber at the highest price. Defendant moved for a new trial, which was refused.

The testimony of the defendant tended to prove that, because of certain extraordinary conditions attending the delivery of car loads of freight at his yard at about the time when the car in question was delivered, it was inconvenient and deemed to be inexpedient to inspect the lumber as it was taken from the car; that it was unloaded upon the yard, and was not inspected ■ until March 7th, when it was found that only a small portion of the lumber was of the grade of lumber ordered. Being informed of this, the defendant endeavored, he says, to reach plaintiff by telephone at his apartments in Detroit, but was unable to do so, and finally sent him a postal card, and told him to call. He testified:

“ I attempted to reach him a number of times, but he was out of town, and did not answer. Then I dropped him this postal card; he came in. I told him I would not accept the lumber. I told him it was not the quality I purchased.”

This postal card was received by the plaintiff April 14th, on the same day that it was written, and he called upon the defendant on the 15th of April. April 24th defendant wrote plaintiff a letter, stating that he refused to accept the lumber, because it was not the kind of lumber that was sold, and directing him to remove it, pay freight and cost of unloading and storage. Over defendant’s objection, the court ruled, as matter of law, that defendant had not inspected and rejected the lumber within a reasonable time. This is assigned as error.

It appeared that the plaintiff and his family resided in apartments in the city of Detroit, and he had his office in his apartment, and a telephone; that he himself was out of the city two-thirds of his time, but was in and out on short trips. It does not appear at what time, or times, defendant sought to reach plaintiff at his apartments by telephone, or how many times he made the attempt; that he left word, or attempted to, with any member of plaintiff’s family; or that he used the mail for the purpose of sending notice, until a month and seven days after the lumber was inspected, and almost two. months after it was received and unloaded. Counsel agree that defendant was bound to use reasonable diligence to inspect the lumber, and to notify plaintiff that he rejected the car. Defendant testified:

“Our custom usually is to inspect lumber as it was unloaded right from the car. If the car is not up to grade, we notify within a reasonable time, within a few days, within a day or two, if we are able to write them; but if in the city we use the telephone, and call them up. I knew where I could reach him by mail. We did eventually write a card to him when I could not get hold of him.”

Usually, what is a reasonable time for inspecting and rejecting goods tendered in performance of a contract of sale is a question for the jury. But delay may be for so long a time that no two opinions upon the subject can be reasonably entertained. Defendant, appreciating, we assume, the necessity therefor, attempts to excuse his delay in making inspection of the lumber, and his further delay in notifying plaintiff that he refused to accept it. But it is clear that at the best his convenience, and not his necessity, occasioned the delay in inspection, and no reasonable effort to notify plaintiff was made until 3? or 38 days after the inspection, until, in short, the full term given for payment had expired, or was about to expire. We think the ruling made was a proper one.

It is contended that if defendant is held liable to pay for the lumber which was delivered it was for the jury to determine the quantity. Two of defendant’s witnesses testified to a scale of the lumber, one making a total of 11,812 feet, and the other a scale of 11,602 feet, while the invoice calls for 11,835 feet. One of these witnesses tallied the lumber as 5-4 and 4-4, and made 4,695 feet of 5-4, while the invoice calls for 3,921 feet. The same witness made 7,117 feet of 5-4, while the invoice calls for 7,914 feet. Some of the 5-4 was billed at a higher price than some of the 4-4; some at a less price than some of the 4-4. Each of these witnesses also testified that he inspected — graded—the lumber, and the respective quantities thereof are stated with reference to the quality of the lumber. One witness found, he said, only 2,747 feet grading B and better out of a total of 11,602 feet, and that there was a difference in price between B and better and common of about $12 a thousand. It is clear that whether the judgment is too large depends on how the lumber shall be graded, because in no other way can it be determined in what grade of lumber, irrespective of its size, the alleged shortage occurred. Defendant did not inform plaintiff of any shortage. He had the invoice which informed him that the car was loaded with two grades of each size of lumber, and that a price had been charged for each grade of each size. Further than this, the defendant, in answer to questions asked by the court, claimed a shortage in the total quantity of only 20 feet, upon which statement the court acted and deducted the price of 20 feet at the highest price. We think no error is made to appear.

The judgment is affirmed.

Steere, McAlvay, Blair, and Stone, JJ., concurred.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
      In re BALUSS’ ESTATE.
    Appeal and Error — Record—Briefs—Assignments.
    Two oases, heard as one upon a single bill of exceptions that by stipulation counsel used in both cases, are ordered struck from the docket because the printed record contains no assignments of error, references to the record appear in blank, the index is omitted from the record in one case and the record and briefs are very uncertain and confusing.
    Error to Lenawee; Golden, J.
    Submitted November 14, 1911.
    (Docket Nos. 114, 115.)
    Webster C. Jipson presented two claims against the estate of Daniel D. Baluss, deceased. Both were disallowed by the commissioners on claims, and on appeal to the circuit court judgment was entered for defendant estate.
    Stricken from the docket December 29, 1911.
    Smith, Baldwin & Alexander, for appellant.

      Dayton B. Morgan and J. N. Sampson, for appellee.
   Per Curiam.

These two causes were submitted upon briefs. Both causes were tried in the court below by the court without a jury. There appears to have been a single bill of exceptions settled, which counsel have intended to use, and by stipulation seem to have agreed to use, in both causes. The alleged bill of exceptions is printed in the record in the cause first above entitled. It contains no assignments of error. It contains many references to the record which are left blank, indicating that when the record went to ’the printer the paging was omitted, and it has never been supplied. In No. 115, second above entitled, the record contains no index. The bill of exceptions is not printed. The briefs contain numerous references, inserted in ink, to the record in the other case. In addition to this, we have found the records and briefs in both cases so uncertain and confusing that we feel warranted in declining to consider either of these causes upon the records as filed in this court.

An order will be entered striking both causes from the docket.


author: Moobe, J

text:
    SCANLON v. CONNOR.
    Deeds — Intoxication as Affecting Conveyance —Fraud—Setting Aside Instruments.
    A conveyance of real property worth $1,200 and of personal property worth $1,000, procured by defendant while complainant, the grantor, was in an intoxicated condition brought - about by defendant, who paid only $700 for the property, was fraudulent and properly set aside in equity.

    Appeal from Muskegon; Sessions, J.
    Submitted December 13, 1911.
    (Docket No. 129.)
    Decided December 29, 1911.
    Bill by Mike Scanlon against Charles Connor to set aside a deed of realty and a bill of sale of personalty for fraud. From a decree for complainant, defendant appeals.
    Affirmed.

      James E. Sullivan {Turner & Turner, of counsel), for appellant.

      Gross, Vanderwerp, Foote & Boss, for appellee.

       Validity of contract made with intoxicated person, see notes in 54 L. R. A. 440 ; 2 L. R. A. (N. S.) 666; 25 L. R. A. (N. S.) 596.

   Moobe, J

The bill of complaint was filled in this case October 22, 1910, to set aside a deed to real estate and a bill of sale of personal property made October 11th of the same year. From a decree in favor of the complainant, made after a hearing in open court, the defendant has brought the cáse here by appeal.

The complainant was the husband of Ella Scanlon, who lived at Muskegon, Mich., and died as the result of severe burns. Her husband, the complainant, was at that time working at Moline, 111. Her heirs at law were her husband, two living brothers, one of whom is the defendant, one living sister and the children of two brothers, deceased. The defendant lives at Muskegon. The relatives did not notify the complainant of the death of his wife. He learned of that through a letter written him by a friend. It was not until he reached Muskegon that he learned the cause of her death.

It is the claim of complainant that soon after his arrival at Muskegon the defendant and himself began to drink intoxicating liquors, including whisky, furnished by defendant, the defendant drinking much less than complainant; that this continued for two days, when defendant induced complainant to sign the conveyances above referred to for $700. It is his further claim that the value of his interest in the real estate conveyed by him was in the neighborhood of $1,200, and of the personal property nearly, if not quite, a like amount, more than $1,000 of which was money in the bank. His further claim is that what was done by defendant was in law and in fact a fraud upon him. We have already stated that the trial judge who saw the witnesses found the contention of the complainant to be true.

It would profit, no one to set out the testimony here. It establishes clearly that the condition of the complainant • was brought about by the defendant; that defendant employed one of his neighbors to help him procure the conveyance of the property; that the neighbor visited a scrivener without' the knowledge of the complainant, and procured the papers to be drawn; that, after the transaction was completed, defendant paid the neighbor $70 for what he had done; that, when complainant was in the condition indicated above, defendant procured from him for $700 conveyances to property worth, upwards of $2,000, more than $1,000 of which was money in the bank. In Miller v. Sterringer, 66 W. Va. 169 (66 S. E. 228, 25 L. R. A. [N. S.] 596), the court said:

“ The decree is fully justified. In some particulars the evidence is conflicting, it is true, but material facts and circumstances glaringly appear and strongly support the decree. These facts and circumstances make the case distinctly one of fraud and imposition. It may not be a case of absolute want of mental capacity to make a deed. Though the intoxication may have been of less degree than total at the time the deed was executed, yet clearly the evidence establishes that it was the means by which the grantor was misled and deceived to his prejudice. Cases like this one do not so much involve questions of incapacity as they involve questions of fraud and undue influence. Where it is shown that only partial intoxication has been made the means of practicing a fraud in obtaining a deed, or securing a fraudulent advantage, wholly against conscience, equity will interpose. * * *
“The greatest of Virginia law commentators concisely states:
“‘The plea of drunkenness was formerly regarded with as little favor in civil, as it still is in criminal, cases. For although Lord Coke classes a drunkard as non compos mentis, yet he allows him no indulgence on that account. “As for a drunkard,” says he, “who is voluntarius daemon, he hath (as has been said) no privilege thereby, but what hurt or ill he doth, his drunkenness doth aggravate it.” But for more than a century this rigorous doctrine has been much relaxed, and it is agreed that drunkenness invalidates or renders voidable all contracts and transactions where (1) the drunkenness was brought about by the opposite party; (2) a fraudulent advantage was taken of it; (3) it deprived the party of his reason, and of an agreeing mind. * * * The mere fact that one is drunk when he enters into a contract is no ground for setting it aside, at least in equity, unless under one or the other of the circumstances above stated; but when a person’s habitual addiction to intoxication renders him extremely subject to imposition, such habits, though not carried to an excess constituting absolute incapacity, lay a ground for strict examination whether any instrument executed by him does not in itself, or in the attendant circumstances, contain evidence that advantage was taken of those habits.’ 2Minor’s Institutes (4th Ed.), 644.
“In the same connection this author further says that, when the drunkenness is brought about by the party obtaining the contract, the act is so flagrant a badge of fraud that it always renders the contract voidable, both at law and inequity; and that, where a fraudulent advantage is taken of the drunkenness, this, too, is so direct a fraud as always to render the transaction voidable in all courts.
“The principle that is particularly applicable to the case under consideration is that equity will relieve one from a contract made by him in drunkenness, though his reason may not have been wholly overthrown, where fraudulent advantage has been taken, or where the drunkenness has been brought about by the other party. It is recognized clearly in 17 Ann. & Eng. Enc. Law, p. 402; 14 Cyc. p. 1105; 1 Story, Eq. Jur. 231; 2 Pom. Eq. Jur. 949; 2 Page on Contracts, § 905. Some of the many cases in point are: Cooke v. Clayworth, 18 Ves. Jr. 12; Reynolds v. Waller, 1 Wash. (Va.) 164; Wigglesworth v. Steers, 1 Hen. & M. [Va.] 70, 3 Am. Dec. 602; Samuel v. Marshal, 3 Leigh [Va.], 567; White v. Cox, 3 Hayw. (Tenn.) 79; Hotchkiss v. Fortson, 7 Yerg. [Tenn.] 67; Crane v. Conklin, 1 N. J. Eq. 346 (22 Am. Dec. 519); Thackrah v. Haas, 119 U. S. 499 (7 Sup. Ct. 311); Jones v. McCruder, 87 Va. 360 (12 S. E. 792); Weldon v. Colquitt, 62 Ga. 449 (35 Am. Rep. 128).
“ In applying this principle, the following expressions have been used:
“If a party has been led into a hard and disadvantageous bargain, while excited by liquor, equity avoids it. And the same rule applies to persons whose minds are enfeebled by habitual intoxication, although not actually intoxicated.’ Birdsong v. Birdsong, 2 Head. [Tenn.] 289.
“ ‘If, when a man is so drunk as to render him an easy prey to the fraudulent designs of another, an unfair advantage is taken of his situation to procure from him an unreasonable bargain, a court of equity will interfere and rescind the contract, not on the ground of his drunkenness, but of the fraud.’ Calloway v. Witherspoon, 40 N. C. 128.
“A Canadian chancellor, in the consideration of a case very similar to the one before us, has said:
“'It is manifest that a man of intemperate habits, a slave to strong drink, when dealing with the tavern keeper at whose house he lives, and from whom- he obtains the liquor which he craves, and with which he daily stupefies or maddens himself, is as liable to be overreached, and needs for himself and family or heirs the protection of this court at least as much as a client who deals with his solicitor, or as a patient who has transactions with his medical attendant. No man is more helpless than a drunkard is in the hands of those who obtain his confidence, and to whom he looks day by day for the gratification of the morbid craving which has possessed him; and the modern doctrine of both law and equity is against giving up even a poor drunkard, or a drunkard’s property, to be the prey of the rapacious and unprincipled.’ McGregor v. Boulton, 12 Grant, Ch. (U. C. ) 288.”

To permit such a transaction as is disclosed by this record to stand would be a travesty upon justice.

The decree is affirmed, with costs.

Ostrander, 0. J., and Steere, Brooke, and Stone, JJ., concurred.


author: Ostrander, C. J.

text:
    BOARD OF WATER COMMISSIONERS OF THE CITY OF DETROIT v. BUTLER BROS. CONSTRUCTION CO.
    1. Municipal Corporations — Water Supply — Public Works-Actions — Assumpsit.
    Upon the failure or neglect of a contractor engaged in constructing a tunnel for a private corporation, to take sufficient precautions for the protection of municipal water mains, the board of water commissioners were justified in taking reasonable precautionary measures, and could recover the expense thereof in an action against the contractor.

      2. Same — Evidence—Materiality.
    While it was immaterial to offer evidence of the breaking of a pipe which the contractor had paid for and was not involved in the action, the error was not prejudicial.
    3. Same — Evidence—Opinion—Intent.
    Testimony of a member of the water board that the expense was incurred to guard against loss of life and the danger of a conflagration was proper evidence tending to show good faith, and was not an opinion.
    Error to Wayne; Donovan, J.
    Submitted December 11,1911.
    ( Docket No. 41.)
    Decided December 29, 1911.
    Assumpsit by the board of water commissioners of the city of Detroit against the Butler Brothers Construction Company and another for expense incurred in protecting the water pipes of said city. Judgment for plaintiff. Defendants bring error.
    Affirmed.

      Russel, Campbell, Bulkley & Ledyard (Henry M. Campbell, of counsel), for appellants.

      Richard I. Lawson and Walter Barlow (P. J. M. Hally, of counsel), for appellee.
    The board of water commissioners of the city of Detroit is a body created by the legislature with power to lay, construct, secure, and maintain such pipes and and aqueducts as shall be required to furnish a full supply of water for public and private use in said city. In the year 1906 and thereafter, the Detroit Biver Tunnel Company, through Butler Bros. Construction Company, the contractors in that behalf, was engaged in constructing a railroad tunnel under the Detroit river and under the shores and lands bordering the river. As projected and constructed, the tunnel crosses Jefferson avenue in the city of Detroit about midway between Tenth and Twelfth streets at the intersection of Eleventh street and Jefferson; the top of the tunnel being some 37 feet below the surface of the earth. At this point it passes under a 42-inch water main; the top of the main being feet below the surface of the street. Over the water main is a sewer. In the water main are gates, or valves, which can be operated so as to stop the flow of water, if the necessity for doing so arises, one at Tenth street and one at Twelfth street. The operation of these valves is controlled by a key, and three men are required at each key to properly perform the service of closing the gates. The water main is cast-iron pipe, laid in sections, each 12 feet long; one end of each section being inserted into a collar upon the end of the adjoining section, and the joints being closed with hemp and melted lead.
    In 1906, before construction of the tunnel had approached Jefferson avenue, defendant applied to the plaintiff board to furnish two men with keys, one for each valve, under whose supervision the gates could be closed. The men were furnished and were paid by the defendant contractor until September 21, 1908. A plan was prepared for supporting the main and was submitted to and approved by the engineer of the plaintiff board. Before the tunnel reached Jefferson avenue, it was deemed advisable to change the plan, and the new plan was formally submitted to the engineer of the plaintiff, and, while not expressly approved, was not objected to. Without going into details, it is sufficient to say that the pipe was exposed and was suspended clear of the surrounding soil; the weight resting ultimately upon concrete piers which extended below the bottom of the projected tunnel and were outside of its course. After the pipe was exposed, levels were frequently taken with instruments, and men were especially designated by defendant to observe the pipe. While the tunnel was being constructed under the street, observations were made hourly with instruments and a record thereof made and preserved. The tunnel was constructed under the pipe in May, 1909. The level of the pipe was not substantially changed; the maximum change being one-half inch on June 6, 1909, after the tunnel had been opened under the street. There was some, but an inconsiderable, escape of water, easily controlled by tamp-' ing the joints. In short, the precautions taken by the contractor, at a cost of more than $9,000, were, in fact,, sufficient to insure the integrity of the water main.
    On September 31, 1908, the plaintiff board, acting by resolution, without consulting the contractor, put 18 of its. own men to watch the pipe under the direction of the plaintiff. That is to. say, three men were kept at each gate all of the time; each being on duty eight hours. The resolution of the board also directed that the cost be> charged to the contractor. This force of men was continued until June, 1909, when some of the men were withdrawn, and until August 1, 1909, when they were all withdrawn. The aggregate of the charge for these men and supplies was $8,470.78. The appellants declined to-pay the charge, and this suit was brought. At the trial, the jury returned a verdict for the plaintiff for the sum stated, against the defendant contractor.
    Plaintiff’s declaration contained two counts; one alleging an express agreement of defendant to pay the men employed by plaintiff, and the other containing the common counts in assumpsit. The trial court charged the jury that there was no evidence of an express agreement. The questions presented by the assignments of error, and discussed by counsel, are: (1) Whether a recovery as upon a quasi contract should have been permitted; (3) whether certain testimony concerning an eight-inch pipe which broke was admissible; (3) whether certain opinion evidence ought to have been received; (4) whether the charge was prejudicial to defendant.
   Ostrander, C. J.

(after stating the facts). It is conceded that the duty rested on defendant to construct its tunnel without disturbing the water main. It is said that it fully performed this duty. It is argued that inasmuch as the theory of quasi contract relations of the parties rests upon the idea of such a duty, and as elaborate and successful means were taken to perform it, defendant is not liable. It may be doubted whether this statement of the duty resting upon the defendant is complete. The extent of the duty, the enforcement of which by an action of contract is permitted by a fiction of the law, must be determined by common sense and common justice. The duty of the public authorities in the premises should not be overlooked, nor the consequences of a break in the pipe, if the precautions taken had proved insufficient. Indeed, for the purposes of argument only, the appellant assumes that precautions other than the mechanical contrivances for supporting the pipe and for restoring its disturbed level were suggested by the circumstances. The appellant recognized the propriety, if not the duty, of being prepared -to close the valves in the pipe. It did this by applying to the plaintiff to place men at the valves, equipped with apparatus for closing the valves. And in the written protest made in September, 1908, to the plaintiff, the appellant was complaining, not about the propriety of being able to control the valves whenever the soil in the street should be disturbed, but that until the tunnel approached the pipe the additional precautions taken by plaintiff were unnecessary. In part the communication read:

“ In our judgment these men are wholly unnecessary at present. We would, in this connection, call your attention to the fact that for the past year and a half or more you have had a watchman there at our expense and this should be a sufficient safeguard until such time as we get near to the water main with our tunnel, when we again resume the work of excavating. We shall then be glad to have you put on the men that you consider necessary, and shall be willing to assume the expense in connection therewith. We would also point out to you that there should be no necessity for having as many as eighteen men. A force of six men should be sufficient, because we will at all times have our men in the immediate vicinity who could be called upon by any of your watchmen for assistance in closing the gates, whenever required. We would, therefore, respectfully request, when the watchmen are again put on, that only two men be employed in three shifts of eight hours each, making six men for every twenty-four hours. We fully realize the risk involved if a break should occur in this main and we are perfectly willing to stand any reasonable expense in connection therewith for the purpose of safeguarding the city’s interests. We trust your honorable board will take.action as herein requested.”

The difference between the plaintiff and the appellant was not so much one concerning the duty owed by appellant, as it was one concerning the measures to be employed in its performance. They agreed that during a certain period, not arrived, but which did arrive, it would be proper to have more men at the valves, and that appellant ought to pay these men. They disagreed about the number of men necessary to perform the duty and whether the period had arrived when they should be put to work. We do not mean by this to say that the mere offer of appellant to employ additional men was, in the absence of its acceptance, conclusive evidence of the measure of its duty in the premises. But the offer is itself persuasive evidence of the fact that for some period of time, not arrived, greater precautions than had theretofore been taken would be required in the exercise of ordinary care. It is the theory of plaintiff and a proper legal theory, that, if appellant refused to take the ordinary care demanded by the circumstances, plaintiff had the right to do so at its expense. Whether defendant took such care, and whether plaintiff did more than the defendant should have been required to do, were not questions for the court.

It is alleged in the declaration, in the first count, that the defendant threatened to disturb, and did disturb, the water pipes owned by the plaintiff, which water pipes crossed and cross the course of the tunnel, and that plaintiff employed men to watch said water pipes. A witness was asked, “ Do you remember when the eight-inch pipe broke?” and, over objection, answered, “It was on the morning of March 8, 1909.” An officer of appellant, on cross-examination, over objection, testified that he did not protect the eight-inch pipe, that it was cheaper to let it break, and that appellant paid for it. This testimony was commented on by plaintiff’s attorney in his argument to the jury. No recovery was sought because of the breaking of the pipe, and the testimony seems to have been wholly immaterial to the.issue.

A member of the plaintiff board testified that what induced the board to refuse to recall the men and to continue them over appellant’s protest was “to guard against an appalling loss of life, and the dangers of a conflagration that were very imminent in case there was a break in the pipe.” The objection was that the testimony called for by the question was immaterial and incompetent. The testimony called for was not immaterial nor incompetent. It was not opinion evidence. Appellant has given reasons for its refusal to employ more men at the valves. The good faith of plaintiff was material, and the probable results if the pipe should be broken were loss of life and loss of fire protection to a portion of the city. The witness might have answered the question more simply; but no motion was made to strike out the answer, and we think no reversible error was committed in receiving the answer which the question called for.

The criticisms of the charge of the court are not very specific. It is said that on the whole it was prejudicial to appellant. The eighth and ninth requests to charge might well have been given as they were prepared by counsel. The substance of them was given and correctly stated the law. The reference in the charge to the seven modern wonders of the world, and the general want of clearness and of certainty of expression, do not call for a reversal of the judgment.

Upon a careful review of the record and briefs, we are satisfied that no error of law prejudicial to defendant was committed, and, no motion for a new trial having been made, we affirm the judgment.

Steers, Moore, Brooke, and Stone, JJ., concurred.


text:
    BAXTER v. COWHEY.
    Appeal and Error — Instructions to Jury — Requests.
    Though, the court’s charge, in an action by architects for compensation, was not clear or comprehensive, the verdict, which was not against the weight of the evidence, is affirmed, the issue being simple and no requests having been presented by appellant.
    Error to Wayne; Donovan, J.
    Submitted December 11, 1911.
    (Docket No. 184.)
    Decided December 29, 1911.
    Assumpsit by Frank G. Baxter and another against Thomas F. Cowhey for services rendered. Judgment for plaintiffs. Defendant brings error.
    Affirmed.

      Henderson, Martindale & Grose, for appellant.

      William G. Fitzpatrick (C. E. Duffy, of counsel), for appellees.
   Ostrander, C. J.

Plaintiffs, who are architects, wrote to defendant, for whom they were preparing the plans and specifications for a building, a letter which they claim embodied the result of former conversations and agreements. It is here set out:

“February 28,1908.
“Mr. Thomas F. Cowhey,
“Detroit, Michigan.
“Dear Sir:
“Verifying our recent conversation with you we are now at work on drawings for your three-story brick veneered apartment building to be built on Bowen avenue, north of Jefferson. We have agreed to make all drawings, details, blue prints, and specifications necessary for this work for $150.00. If contracts are let and we superintend same we are to receive $175.00 for complete superintendence.
“Yours truly,
“ Baxter & O’Dell.
“$50.00 when drawings are completed, $75.00 on 10th March, ’08, $25.00 when building is plastered.
“B. & O.”

The postscript, as explained by plaintiffs, refers to the payment for the plans, which have been paid for. The building was erected. Plaintiffs claim that they superintended the construction of the building, and are therefore entitled to the contract price of $175, and for this sum they brought their suit. Defendant claims that the letter did not come to him until some time after the erection of the building had begun, that plaintiffs were not employed to superintend, and did not superintend, the construction, and that for such services as they performed, besidés drawing the plans (which were to be in explanation, etc., of them), it was agreed they should be paid the sum of $25. It is agreed that some services were rendered by plaintiffs, or by one of them, after construction of the building was begun. The nature and extent of such services and the number of times the building was visited by the architect were testified to by the parties and by various contractors. It does not appear that either party presented any requests to charge. There was a verdict and judgment for plaintiffs for the amount claimed by them. A motion for a new trial was overruled.

Errors assigned are based upon the charge of the court, which, it is claimed, did not define, but, on the contrary, obscured, the issue, among other things presenting to the jury a theory of recovery based upon an implied contract to pay plaintiffs for services rendered. In a way, the court did advise the jury of the duty to be performed by them. He said:

“ If you are convinced that the plaintiff here is entitled to recover, say so by your verdict, and, if not, say by your verdict. It would be a very simple thing then in balloting, plaintiff or defendant. If defendant, come in and tell us, and, if plaintiff, fix the amount. I will not name any arbitrary amount, but the amount named here claimed by the plaintiff is $175. That is the gross amount, and the amount claimed by the defendant is $25.”

Later on in the charge appears the following:

“They had a jangle once, and they sent for the architect, and then he is there over 20 times, according to his testimony. He is there from the beginning taking what he claims to be the main part, what the defendants claim only a part. Now, whether their minds ever met upon the contract anywhere would depend upon the reading of the letter. It is not exactly clear, and, even if you read it, it does not give the whole transaction, because it is made, according to its date, back in February — that is, before it had been done — and it uses the language of the last clause like this. ‘We have agreed to make all drawings, details, blue prints, and specifications necessary for this work for $150.00.’ Up to there, there is not a word against it, there is not a word of dispute. We have agreed upon that amount, if you believe it up to that date. Now, he goes on, ‘ If contracts are let, and we superintend ( all contracts, within the meaning of that paper ), then we are to receive $175.00, and we do not hear anything more about that.’ ”

The language just quoted immediately precedes that which is especially complained about, which is:

“ Now in law, if one stands by and sees another build a house for him to his advantage, and for his benefit, and he takes the benefit, why the laws will make the contract that a reasonable sum be paid. Even if they never have any contract at all. That is one way of measuring a contract. The law itself implies a contract. A man need not always make a hard and fast contract. And if you remember the Scotch adage, that the house never costs any less than the builder estimated, you will remember that nearly every house and every building put up has something changed, or altered, or amended, in some form in connection with it. So that it is a usual thing that midway in the building of a house a partition is taken down, and another put in, a dormer window or something. They very rarely continue from the beginning of a job to the very end of a job without some alterations, and in this case it is for the 12 men to find out if they made a further arrangement. If they did or did not make further arrangement, whereby they could use more of the architect’s work than they originally intended, if there was one time that they met, or they said, ‘No; I do not want to make any extra bill, I must keep down the bill,’ or words to that effect, or that meaning.”

Excepting the portion in which the jury was told that plaintiffs had the burden of proof, we have set out all of the charge which has any particular reference to the case which was being tried. It is said by counsel for appellees that what was said does not lack all of the requirements of a charge, which may be true, although it is difficult to understand how it could have in any manner aided the jury. We assume that counsel argued this case, and, in view of the simplicity of the issue, are disposed to affirm the judgment, somewhat influenced in this behalf by the fact that counsel for both parties refrained from suggesting amendments to the charge. We are impressed that the jury understood the point to be determined, and the verdict indicates that they believed the plaintiffs and their witnesses. We think the verdict is not so clearly against the weight of the evidence that we should set it aside.

The judgment is affirmed.

Steere, Moore, Brooke, and Stone, JJ., concurred.


text:
    PEOPLE v. KOHLER.
    Criminal Law — Appeal and Error — Municipal Corporations —Violation oe Ordinances.
    A conviction upon' a charge of violating a village ordinance is not reviewable on exceptions before sentence.
    Exceptions before sentence from Monroe; McKay, J.
    Submitted December 14, 1911.
    (Docket No. 195.)
    Decided December 29, 1911.
    Fred Kohler was' convicted of violating a village ordinance.
    Exceptions dismissed.

      John O. Zabel and Willis Baldwin, for the people.

      Smith, Baldwin & Alexander, for defendant.
   Ostrander, C. J.

Respondent was convicted of violating a village ordinance. He seeks to review the record of his conviction upon exceptions before sentence, brought to this court by writ of error.

The cause must be dismissed, upon the authority of People v. Smith, 146 Mich. 193 (109 N. W. 411), and cases cited in opinion, City of Muskegon v. Hanes, 146 Mich. 385 (109 N. W. 674), and Village of Lake Odessa v. Randall, 158 Mich. 205 (122 N. W. 517). The court below is advised to proceed to judgment.

Steers, Brooke, Blair, and Stone, JJ., concurred.


text:
    JOHNSON v. JACKSON.
    Master and Servant — Defective Appliances — Negligence.
    Where a safety device, used to hold the lever which operated a saw carriage, had been employed for six years without accident, and plaintiff’s decedent was injured because the clamp in some conjectural manner became detached and permitted the carriage to start, fatally injuring decedent, there was not sufficient evidence of negligence to submit the case to the jury.
    Error to Emmet; Shepherd, J.
    Submitted December 15, 1911.
    (Docket No. 141.)
    Decided December 29, 1911.
    Case by Andrew Johnson, administrator of the estate of August Johnson, deceased, against Willis K. Jackson, surviving partner of the firm of Tindle and Jackson, for the unlawful killing of plaintiff’s decedent. Judgment for plaintiff. Defendant brings error.
    Reversed.

      Keena, Lightner & Oxtoby (Charles E. Ward, of counsel), for appellant.

      C. S. Beilley (Frost & Sprague, of counsel), for appellee.
   Ostrander, C. J.

Plaintiff’s decedent, 53 years of age, was employed in a sawmill. He was injured January 13, 1910, while engaged in removing a swinging door or casing which covered the band saw on the side next to the carriage track; that being a part of the operation of changing saws. Eor this purpose the mill was stopped. When he was injured, deceased was standing on the track of the log carriage, his back to the carriage, holding the door he was taking down with one hand, and reaching up for a strap used to fasten it in the desired position. The log carriage was discovered'in motion. An employé, who was near the lever used to operate the log carriage, found it out of place, and endeavored by its use to stop the carriage. He was too late, even if he properly used the lever (which he himself doubts), and deceased was pushed against the idle saw, and fatally injured. How the carriage was set in motion is, according to plaintiff, a question of probabilities, and, according to defendant, matter of conjecture only.

It is the theory of the plaintiff that plaintiff’s decedent himself unconsciously set the carriage in motion. It is contended that an arrangement and maintenance of appliances which permitted this rendered the place in which plaintiff was called upon to work an unsafe place, for the condition of which, and of the consequences resulting to plaintiff’s decedent, the employer is liable. The testimony for the plaintiff tended to prove that when the mill was in motion the head sawyer stood in a gangway near the car track and near the enclosed band saw; on one side of him, and operated with one hand, was the lever controlling to some extent the positions of the log on the carriage, and on the other side, operated with the other (the right) hand, was the. lever controlling the movements of the log carriage. When the last mentioned lever was in a vertical position, the carriage could not be moved. As the lever was moved one way or the other from the vertical, the carriage moved to and away from the saw. It was 11-J- inches from the stationary saw frame, and from 16 to 24 inches from the carriage track — nearer 24 inches, the head sawyer testified. To hold the lever vertically, a clip or clamp of iron or steel, open on one side, was provided, which fitted upon the lever and upon a stationary vertical standard, running up some 18 inches above the floor, thus holding the lever to the standard. Both the lever and the standard were iron or steel. A string or strip of leather was fastened to the clip and also to the saw frame at a point somewhat higher than where the clip, when in use, engaged the lever and the standard. When not in use, the clip hung conveniently from the string. It is the theory of the plaintiff that deceased, while holding and lifting the movable door or casing, stood upon one foot, and that his other foot, raised from the floor by his exertions, hit the string and removed the clip from the lever, the lever was tipped out of position, and the carriage set in motion.

The court having refused to instruct the jury that no negligence of the defendant had been proven, having refused, also, to instruct them that there was no proof that the injury was caused because of the string being attached to the clip, and having further refused to instruct that it was no more probable that the injury occurred because the deceased kicked the string or the clip than that it happened in some other way, we have been obliged to give, and have given, very careful consideration to the record, which contains the substance of all the testimony given at the trial.

So far as the clip itself is concerned, and the manner in which it engaged the lever and the standard, making the lever rigid, there is no competent testimony tending to prove that it was an unsafe device. Some testimony was introduced tending to prove that it would have been safer,, so far as the danger of its being kicked off is concerned, if a pin or other device had been placed above it after it was in position; and there was testimony to the effect that if both the standard and the lever had been bored with holes, so that the lever could be held in position by a pin passing through the standard and the lever, there would have been less danger of its accidental removal. One can conceive of many ways of securing the lever, most of them inconvenient and unnecessarily wasteful of time. But the device which was in use did not consist of the clip only, but of the clip and the leather string, and when the clip was in position, holding the lever, the string passed across the 11-inch space between the standard and the saw frame to which the string was fastened. This space was not a passageway in any proper sense of the term, and there is no testimony tending to prove that it was used as a jpassageway, although counsel for the plaintiff used the word in framing certain questions put to witnesses. The employé whose duties placed him near the clip and the string was the head sawyer, who operated the levers. It was his duty to use and remove the clip. The only other persons whose duties called them to the immediate vicinity of this string were the men who helped in the changing of the saws and in removing the door or casing about the band saw. One of them, by the use of a lever, released the tension upon the band saw. The other did what plaintiff’s decedent was doing upon the occasion in question. The door or casing, the position of which he altered, was the one next the carriage track, which had to be swung down and outward across the track, and then lifted up and in, and fastened in position — a series óf movements which were reversed, after the saws had been changed, to put the door or casing back into its original position.

The head sawyer, a man somewhat taller than plaintiff’s decedent, testified that in doing this it was customary to put one foot on the right-hand or east rail of the carriage track, while facing to the north and east. The head sawyer testified that he placed the clip in position when he stopped the carriage. Another witness testified that after the injury occurred the clip was found disengaged, hanging from its string. In connection with this testimony, we have read those portions of the record which explain how plaintiff’s decedent, or any one engaged in the same work, would stand in doing the work, and his proximity to the lever and the string, as well as the nature of the injury which he received. His right leg was torn or cut off at the hip.

It seems to be just as probable that the head sawyer was mistaken, honestly, of course, in supposing that he had securely locked the lever with the clip before he left it, or that the other employé, who was assisting at the work in hand with a lever, in some way disengaged the clip, or that in some manner steam had entered the cylinder controlled by the lever, as that plaintiff’s decedent, standing two feet or more away from the string and lever, exerting himself in supporting and handling the casing or door on the west side of the band saw, lifted his foot or leg against the string, and forced the clip from its position. One may speculate about the matter, but the record affords no basis for doing anything more. The same clip and string appear to have been in use in this mill for six years, which is the length of time that the mill has been running. It was the only device ever provided for holding the lever in a stationary position. The band saws were changed usually four times daily, sometimes oftener. Upon each of these occasions, at least three men, and, as we understand the record, four men, employed themselves in some way with the labor connected with changing the saws. Substantially the same thing was required to be done over and over upon each of these occasions, and the man who did what plaintiff’s decedent did upon the occasion in question, did the same thing each time, and, as is made evident by the record, occupied substantially the same position each time.

It appears that on one previous occasion, some four years earlier, the carriage, supposed to be stationary, was found to be in motion, and was stopped by the use of the lever. We are satisfied that the record will not bear the construction that it was ever started but once, except upon the occasion in question. While several witnesses testified to an occasion when they say the carriage moved without the voluntary action of some one at the lever, they evidently refer to the same occasion. Upon that occasion, according to the testimony of the head sawyer, the clip was knocked off the lever in the operation of taking the saw down from the wheel. Another'witness, describing the same occurrence, thinks that the clip was placed upon the lever wrong side up, which was the occasion for the starting of the carriage, and a third witness, who describes an occasion when the carriage started, and who agrees with the head sawyer with respect to the time of the occurrence, says that the clip was off the standard, and he could not tell whether it had been put on before the carriage started or not. One of these witnesses testified that upon one occasion he knocked the clip off himself, and put it back, and in explanation he says that a lever, used to let the strain off the saw, was laid on the floor directly under this string, and had become covered up with sawdust, so that when the witness reached down to get it and lift it from the floor the end of it caught the string and knocked the clip off.

Assuming that we are right about this, it appears that in the course of six years no one doing the work that plaintiff’s decedent was doing upon the occasion in question had ever reached or touched the string or dislodged the clip, and that no one employed about the mill had ever unconsciously removed it. In this connection, there are other undisputed facts to be considered. Plaintiff’s decedent was not a stranger in the mill. He had been employed there for a number of years, and had frequently performed the work he was doing.when he was injured. The natural, if not the necessary, inference to be drawn from the testimony is that he and the other men employed about the saw and log carriage knew about the appliance used to keep the lever in a vertical position. This knowledge, possessed by a man who was ordinarily prudent, would tend to prevent movements, especially unnecessary movements, likely to disturb the lever. Assuming it to have been possible for plaintiff’s decedent, while in the performance of his duty, to unconsciously lift the string sufficiently to release the clip and the lever, it does not necessarily follow that defendant was negligent in supplying and in using the appliance. Defendant’s duty in the premises is to be measured by probabilities, not by the possibility that the lever could be released in the manner suggested by counsel, but by the probabilities that any employé in the performance of duty in the place in question would ever in such a way release the clip and the lever.

“ The fact of injury and the possibility of guarding against it do not necessarily make out a case of culpable negligence: very few acts in life are done with such care -to prevent accidents as would have been possible; and the law only requires of any one that degree of care and prudence which persons who are reasonably careful ordinarily observe.” Schroeder v. Car Co., 56 Mich. 132, 134 (22 N. W. 220, 221).

See, also, Richards v. Rough, 53 Mich. 212 (18 N. W. 785); Sjogren v. Hall, 53 Mich. 274, 277 (18 N. W. 812); Hewitt v. Railroad Co., 67 Mich. 61, 72 (34 N. W. 659).

We reach the conclusion that the testimony wholly fails to prove the negligence of defendant alleged in the declaration, and that the judgment must therefore be reversed. Being of this opinion, we find it unnecessary to consider other questions presented in the briefs.

Judgment reversed, saving to plaintiff the right, if he shall be so advised, to a new trial.

Steere, Brooke, Blair, and Stone, JJ., concurred.


author: Hooker, J.

text:
    MANOS v. DETROIT UNITED RAILWAY.
    Street Railways — Contributory Negligence — Duty to Look Before Crossing Tracks.
    It was contributory negligence for a person, carrying an open umbrella on a rainy day, after looking for a car at the curb of a street, and seeing one approach half a block distant, to cross the track 11-} feet distant from the curb, without again looking.

      Error to Wayne; Hosmer, J.
    Submitted February 15, 1911.
    (Docket No. 191.)
    Decided March 31, 1911.
    Rehearing denied December 29, 1911.
    Case by Julia Manos against the Detroit United Railway for personal injuries. A judgment for defendant on a verdict directed by the court is reviewed by plaintiff on writ of error.
    Affirmed.

      Patrick J. Kelaher (McHugh & Gallagher, of counsel), for appellant.

      Corliss, Leete & Joslyn (A. B. Hall, of counsel), for appellee.

       For the similar question of duty of person at railroad crossing to stop, look, and listen after entering on first track, see note in 17 L. R. A. [N. S.] 505.

   Hooker, J.

The facts in this case are practically undisputed. The plaintiff herself testified that, on a rainy afternoon in June, she came from a store to a street corner, carrying an umbrella. Before attempting to cross the street, she looked and saw a car approaching about half a block away. It was 11£ feet from the curb where she stood to the-nearest rail. She proceeded, and did not look again; was struck by the car which she had seen, and was injured. The learned circuit judge directed a verdict for the defendant, holding that the plaintiff was guilty of contributory negligence in not looking immediately before going upon the track, while in a place of safety, under the rule followed in a number of cases which we cite herein. We cannot doubt that she believed when she left the curb that she could cross in front of the car without being struck by it.

We have held many times that when one steps upon a track without looking and is struck, when, had he taken the trouble to look, he would have seen the danger, it is contributory negligence. That is not questioned, but counsel seem to contend that this rule has been modified by cases in which we have held that where he did look, and had reasonable ground for believing that he could safely cross, the case was one for the jury, whether common prudence justified his course or not. We will refer to both classes of cases.

In Matta v. Railway Co., 69 Mich. 112 (37 N. W. 54), Mr. Justice Morse held that one driving owed the duty •of looking before venturing upon the track of a steam railroad. He cited the following Michigan cases: Mynning v. Railroad Co., 59 Mich. 257 (26 N. W. 514); Id., 64 Mich. 93 (31 N. W. 147, 8 Am. St. Rep. 804); Haas v. Railroad Co., 47 Mich. 407 (11 N. W. 216); Pzolla v. Railroad Co., 54 Mich. 273 (20 N. W. 71); Potter v. Railroad Co., 62 Mich. 22 (28 N. W. 714); Rhoades v. Railway Co., 58 Mich. 263 (25 N. W. 182).

In Kwiotkowski v. Railway Co., 70 Mich. 549 (38 N. W. 463), a man in Detroit, carrying an umbrella on a dark and rainy night, with an opportunity to see for a distance of 20 feet, stepped on the track, and was struck by a train carrying a headlight capable of lighting the track for a block, and was killed. In the face of the presumption that he was not negligent (see Underhill v. Railway Co., 81 Mich. 43 [45 N. W. 508], and Mynning v. Railroad Co., 64 Mich. 102 [31 N. W. 147, 8 Am. St. Rep. 804]), the court held as matter of law that he did not look as he should have done, and was therefore guilty of contributory negligence. Per Morse, J.

In Gardner v. Railroad Co., 97 Mich. 240 (56 N. W. 603), Mr. Justice Long, with the concurrence of all of his associates, applied the doctrine to a man who had looked at a distance of 20 feet from the track, and did not look both ways when two steps from the track, although his attention was diverted by a switch engine. He said:

“ It was broad daylight, and, %when within five feet of the north rail of the track, it is undisputed that the plaintiff could see 250 feet east along the main track. No one disputes that, if he had but looked, he certainly would have seen the train. It is evident, therefore, that he did not look, or, if he did, he saw the train, and carelessly attempted to cross in front of it; and in either case he was guilty of such negligence as to preclude a recovery. Brady v. Railroad Co., 81 Mich. 616 (45 N. W. 1110); Pzolla v. Railroad Co., 54 Mich. 273 (20 N. W. 71); Grostick v. Railroad Co., 90 Mich. 594 (51 N. W. 667). If the plaintiff’s attention was diverted by the switch engine, as he claims, it is no excuse for not looking for the approach of a train. He was to pass a dangerous' point. He knew there was danger there. He was bound to exercise that degree of care that the situation and surroundings demanded of a prudent and careful person. If the switch engine was making a noise by its bell and by letting off steam, it, at least, was not an obstruction to his view to the east, and it is not so claimed. If he had looked eastward, he would have seen the train before he stepped upon the track. The ringing of the bell and the blowing off of steam from the switch engine did not relieve him from the duty of looking in the other direction. One look eastward, and one less step taken, and he would not have been upon the track. Upon any theory of the case, it was the duty of the court to direct the verdict in favor of the defendant.”

Again, in Houghton v. Railway Co., 99 Mich. 308 (58 N. W. 314), we held:

“A traveler is never justified in assuming that he can surely drive a certain distance, and cross a railroad track, before a train can reach the crossing, unless it be shown that he has had an uninterrupted view of the track for so great a distance as to justify such assumption.”

It will be noticed that we there recognized the doctrine of the cases upon which the plaintiff relies in this case, but held it not applicable to that case.

The case of McGee v. Railway Co., 102 Mich. 107 (60 N. W. 293, 26 L. R. A. 300, 47 Am. St. Rep. 507), written by Mr. Justice Long, related to an electric road. Plaintiff testified that he stopped at the curb, looked both ways, and saw the car with a headlight a block and a half away to the south. He did not expect a car from the north and did not see any. He did not look north again, and was struck. Mr. Justice Long, said:

“ We see no more reason for applying the rule that one must look and listen before crossing the tracks of a steam railway than that one must look and listen before crossing a street car track upon which the motive power is electricity or the cable. In this State it is well settled that persons‘passing over railroad crossings must exercise care. They must look and listen, and, under certain circumstances, must stop, before attempting the crossing. Electric street car crossings are also places of danger. The cars are run at a great speed on this street in question. The city ordinance permits it, and the rule must be that, before going upon such tracks, every person is bound to look and listen. If the view is unobstructed, and the pedestrian takes this precaution, there is not much opportunity for him to be injured. It will not do to say that he has discharged his responsibility, in case of an accident, by looking when some feet away, for he may miscalculate the distance and the speed of the car. To avoid danger he must look just before he enters upon the track.”

Borschall v. Railway, 115 Mich. 473 (73 N. W. 551), was a case where the plaintiff crossed one track safely, to be struck by a car going in an opposite direction. The court said, Mr. Justice Long writing the opinion:

“We think the court was correct in saying that the plaintiff was guilty of contributory negligence. There can be no question upon this record but that, had he looked before entering upon this track, he must have seen the car approaching Elizabeth street. If he did not look, he was clearly guilty of negligence, for, in the absence of something to excuse the performance of that duty, it was incumbent upon him, before attempting to cross, to take proper means of ascertaining whether the way was clear. Fritz v. Railway Co., 105 Mich. 50 (62 N. W. 1007). If he saw the car coming, and then attempted to cross, he took his chances of being injured, and cannot .complain.”

In Henderson v. Railway Co., 116 Mich. 374 (74 N. W. 525), Mr. Justice Montgomery applied this rule to a boy who was crossing a double track:

“ It is evident that this verdict cannot stand, but themore doubtful question is presented as to whether the first request of defendant should have been given. In my opinion, upon this record it should have been. See Ecliff v. Railway Co., 64 Mich. 196 (31 N. W. 180). The plaintiff himself testified that this boy had intelligence enough to appreciate the danger. He placed the boy on the stand, and he so testified. The evidence clearly shows that there was nothing,, except this wagon and the east-hound car, to obstruct the vision. Witnesses for the plaintiff state that, if the boy had looked in the direction of the car, he could have seen it. It was but common prudence in crossing such a thoroughfare to look, not only for the car, but for any vehicle which might be coming. Injury would have occurred from collision with an ordinary wagon just as surely as from running into this car; and from the testimony of the lad himself, he had intelligence enough at the time to know this. Why, then, should it be left for the jury to say that he had not ?”

In McCarthy v. Railway Co., 120 Mich. 400 (79 N. W. 631), Mr. Justice Grant, with the concurrence of all sitting, held:

“A person of mature years, familiar with the situation at a street railway crossing, who went behind a passing car and upon a parallel track, where she was struck by a car approaching from the opposite direction, was guilty of contributory negligence, where the tracks were five feet apart and there was no obstacle preventing her from seeing the car which caused the injury, had she looked for it after the first car had passed.”

In that case the plaintiff had walked about 15 feet without looking.

In Davis v. Railway, 162 Mich. 240 (127 N. W. 323), we affirmed a verdict for defendant by direction; Mr. Justice Blair writing the opinion, concurred in by his associates. The case was much like this. The plaintiff did look when near the track. Plaintiff testified:

“Q. Now, after you looked and had the sleet in your eyes, you advanced a step and was struck by the car ?
“A. No, sir; I had looked a ways before I got to the track, and then started to go across, or I started on; I could not see; I did not see no car; I started on.
“Q. The reason you could not see was because you had this sudden gust and sleet ?
“A. Yes, sir.
“Q. That is the reason you could not see ?
“A. Yes, sir. * * *
“Q. You gave up a car coming from the west when you were farther back ?
"A. I was looking; I could not see towards the west.
“Q. You could not see because your eyes were blinded ?
“A. Yes, sir.
“Q. Farther back ?
“A. Yes, sir.
“Q. You could not see because your eyes were blinded ?
“A. Yes, sir. I started on. I had given up the other car.”

The Court said:

“If plaintiff could not see because of the sudden gust blowing the sleet in her eyes, she should have awaited the cessation of the gust, and it was negligence on her part to proceed to cross, relying upon such a view.”

The defendant’s counsel contend that the foregoing rule should not apply where the car has been seen and the plaintiff supposed she had time to cross in front of the car with safety.

In Chauvin v. Railway, 135 Mich. 85 (97 N. W. 160), we said, when the plaintiff had looked and seen the cars, that the circumstances were such as to make it an open question whether, in the exercise of common prudence {having looked just before entering on the track), he might reasonably have thought there was time to drive across in safety. The same rule is applied to a pedestrian in McQuisten v. Railway Co., 147 Mich. 67 (110 N. W. 118), where the plaintiff looked immediately before entering upon the track. The case was a close one, but we declined to hold that it should have been taken from the jury. It was distinctly put upon the ground that, if in common prudence he had reasonable ground for thinking that he had time to cross," he was not negligent.

Again, Beck v. Railroad Co., 156 Mich. 252 (120 N. W. 983), was another close case. The circumstances were peculiar, and the opportunity of looking immediately before going upon the track was absent by reason of box cars on an intervening track. The plaintiff was alert and stopped at the last opportunity, a short distance from the track, and looked and listened. He heard no train and saw no smoke, and a majority of the court thought the trial court did not err in leaving the question of plaintiff’s negligence to the jury. It was a close question, and we resolved doubts in favor of a submission of the question to the j ury. We think it rightly decided. It falls short of laying down a rule for cases such as that before us now.

The crucial principle in this class of cases is that one who neglects to look for a car when there is an unobstructed view, just before entering upon the track, and is struck by a car before he can walk directly across, is guilty of a neglect of duty in not assuring or reassuring himself that there is not a car directly upon him, of which situation the fact that he is struck is conclusive proof.

We have never held that one may safely rely upon his belief that he has time to cross, or that he may prudently take a chance, and it is only when, after satisfying himself by looking and ascertaining where the car is, he may in the exercise of common prudence reasonably think that he can proceed with safety, that a court or jury may find an absence of negligence. We have held this to be the rule repeatedly, and the learned circuit judge understood the cases and applied the right rule. To say that there is no negligence where one believes he can cross in safety, would send every case to the jury, for we must presume that no one attempts to cross, doubting the safety of the attempt. But many are careless and absent-minded, and the question must turn on the reasonableness of the attempt to cross.

The duty of the court to direct a verdict when a prima facie case is not made out, i. e., when all the evidence with proper inferences therefrom would be insufficient to support a verdict, is clear. A very full discussion of this question will be found in a note to the case of People v. Insurance Exchange, 2 L. R. A. 340, 341, where many cases from this and many other States are cited.

The judgment is affirmed.

McAlvay and Brooke, JJ., concurred. Moore and Blair, JJ., concurred in the result.


author: Brooke, J.

text:
    DETROIT SAVINGS BANK v. LOVELAND.
    1. Estoppel — Contracts—Corporations.
    ■Where a contractor, pending negotiations with a mining company as to the sinking of a shaft for the purpose of mining rock salt, proceeded under an oral agreement with certain of the directors to do preliminary work, for which they were to be liable, but the corporation thereafter passed a resolution accepting the contractor’s bid, and continued for several months to make advancements to the contractor, who continued to sink the shaft until the corporation had incurred an indebtedness of upwards of $7,000, and where he at no, time advised the directors of his intention to hold them personally, or advised them of the progress of the work, but, did acts inconsistent with such a theory, he is estopped to, claim a personal liability.
    2. Same — Definition.
    Estoppel is a bar which precludes a person from denying the truth of a fact which has in contemplation of law become settled by the act of the party himself.
    3. Contracts — Meeting of Minds — Mutuality.
    The necessary elements of a valid contract were laoking between the contractor and the directors, since their undertaking did not extend to the entire cost of sinking the shaft, but to preliminary work, which was not determined by the arrangement.
    Error to Wayne; Mandell, J.
    Submitted November 14, 1910.
    (Docket No. 19.)
    Decided March 31, 1911.
    Rehearing denied March 30, 1912.
    Assumpsit by the Detroit Savings Bank, assignee of George E. Currie, against Ralph Loveland, John A. Russell, George W. Williams, and George N. Skinner, for labor and materials furnished. Judgment for plaintiff. Defendant Loveland brings error.
    Reversed.

      Weadock & Weadock, for appellant.

      Sidney T. Miller and Henry 0. Walters (James Oosslett Smith, of counsel), for appellee.
   Brooke, J.

Plaintiff, as assignee of one George E. Currie, recovered a judgment against defendant in the sum of $8,672.81.

The declaration is in assumpsit and is accompanied by a bill of particulars which shows that the judgment represents the cost of partially sinking a shaft for a salt mine near the city of Detroit, less certain sums paid thereon, for which defendant is given credit. Defendant brings the case to this court for review by writ of error.

It appears that plaintiff’s assignor, Currie, had, prior to 1901, for many years been engaged as a contractor, building railways, sewers, pavements, etc. Some time in the year 1900 one William H. Ashwell, a mining and civil engineer of some repute, having knowledge that a stratum of rock salt existed several hundred feet beneath the surface of the ground in the vicinity of the River Rouge, near Detroit, conceived the idea that it was practicable to sink a shaft to the stratum of salt and to profitably mine the same. He proceeded to prepare plans and specifications for such a shaft and submitted them to Currie, who, on December 1,1900, submitted a tender to Ashwell to sink the shaft 800 feet for $120,000. This tender provided that, if he secured the contract, he would subscribe for $12,-000 of 7 per cent, accumulative, preference stock in the undertaking. From this tender, with its proviso, it is clear that at the inception of the project Currie contemplated entering into a contract for the sinking of the shaft, with a company thereafter to be formed, in which he himself proposed to become a stockholder to the amount of $12,000. Ashwell thereupon secured an option upon the land, necessary for the enterprise, from the Ecorse Land & Improvement Company. On January 12, 1901, the Michigan Rock Salt Company was organized with an authorized capital of $10,000. On the same day the stockholders met and authorized an increase in capital to $600,-000, half common and half preferred, authorized the taking over of the Ashwell option, arid the sale of 8,000 shares of its preferred stock, to provide funds for the sinking of the shaft, etc.

On November 20, 1901, John A. Russell, vice president of the Michigan Rock Salt Company, wrote the following letter to Currie:

“ Detroit, Nov. 20, 1901.
“George E. Currie, Esq.;
“ Detroit, Mich.
“ I enclose herewith a copy of Mr. Ash well’s specifications for shaft sinking. The form of contract which he offers is the ordinary simple form, referring to the specifications and drawings and making them a part of the contract, the contract itself simply providing for the full purchase price.
“Tours truly,
“John A. Russell.”

It appears that at'the same time a draft contract was sent to Currie by Russell, as follows:

“This agreement, made and entered into this thirtieth day of November, 1901, between the Michigan Rock Salt Company, a corporation having its office and place of business in Ecorse, Wayne county, Michigan, party of the first part,_ and George E. Currie, of Detroit, Wayne county, Michigan, party of the second part, witnesseth: That the said party of the second part, in consideration of the agreement of the said party of the first part herein contained, hereby covenants and agrees to and with the above named Michigan Rock Salt Company, party of the first part herein, that he will at his own cost and expense furnish all the labor and such materials as may be required therefor, and in accordance with the plans and specifications designated as contract No. 1 for the sinking of a shaft for a rock salt mine in Ecorse township, Wayne county, Michigan, within the time and in the manner herein provided, for the sum of one hundred twenty thousand ($120,000.00) dollars, being at the rate of one hundred fifty ($150) dollars of shaft sunk, per foot, and no greater price than one hundred and fifty dollars per foot shall be paid for any additional depth.
“ The said contract shall be done in a substantial, thorough and workmanlike manner, and in all respects in accordance with and as specified and required in and by the plans and specifications of the said Michigan Rock Salt Company, hereto attached and forming a part of this contract, and the materials used shall be of the kind and quality named and required in said plans and specifications.
“ Said contract shall be fully performed and completed in the manner herein required on or before the expiration of twelve months from the date of this contract. Said plans and specifications being attached hereto and dated of even date herewith, and signed by the president and secretary of the said Michigan Rock Salt Company, and a duplicate copy hereof signed by the party of the second part hereto. In witness whereof, the party of the second part has set his hand hereto, and the said Michigan Rock Salt Company has caused this instrument to be subscribed by its president and secretary, this 30th day of November, 1901, and its corporate seal to be attached thereto.
“ [Signed]..........[L. S.]
“ Michigan Rock Salt Company.
“By.............President.
“By.............Secretary.
“Examined and approved, Detroit, November 30th, 1901.
' “ [Signed]......Engineer.
“Examined and approved as to legal sufficiency and correctness, Detroit, November 30th, 1901.
“ [Signed]......Attorney.”

The specifications accompanying this contract were very full; we call attention to but a few sections:

“Instructions. — The contractor must follow strictly without delay, all instructions and orders given by the engineer in the performance of his work. * * *
“Compressors. — The company will provide free of expense to the contractor, an air compressing plant, of adequate Capacity, for his use during the progress of the work herein specified, etc.
“ Security. — As security for the proper performance of the work, a bond acceptable to the company of an amount equal to the full amount of the contract, will be required, and the company will pay at the times specified, only ninety (90) per cent, of the monthly estimates of the work properly performed and materials furnished, after deducting all charges against the contractor, retaining the ten (10) per cent, until the completion of the contract and the final acceptance of the work. The cost of the bond shall be paid by the company.”

Prior to and during the month of November, 1901, subscriptions had been solicited to the preferred stock of the Michigan Bock Salt Company by those interested in its promotion. As a result some 3,600 shares of a par value of $25 each were subscribed. The first seven subscriptions were as follows:

John A. Bussell..................................400
Wm. H. Ash well................................100
Geo. N. Skinner.................................120
Geo. N. Skinner, trustee..........................480
M. I. Sullivan...................................120
Geo. E. Currie (subject to tender of December 1,1900) 480
Balph Loveland..................................200

Desiring to interest other capitalists in the enterprise, it was, on November 23, 1901, arranged between Bussell and Currie that Currie should at once go upon the lands of the company and commence, work upon the shaft, so that when prospective investors were taken to the site it would be found that work was actually in progress, and that the project was feasible. The expense of this preliminary work, amounting to $57.94, was personally guaranteed to Currie by Bussell. This was the situation on November 30, 1901, when an inspection trip was arranged, so that intending investors might see the property. Among those who went upon this trip were Currie, Bussell, Ashwell, Williams, Skinner, and Griffin. Currie testifies that defendant Loveland was likewise of the party. Loveland denies that he was present. Skinner likewise swears that Loveland was not present, and Bussell and Williams state that they cannot recall the presence of Loveland upon that occasion. This action is predicated solely upon what is alleged by Currie to have occurred between himself and defendant Loveland at that time.

Currie testifies:

“After we got down to the place where we commenced operation, they looked around a while and then these gentlemen, Mr. Loveland, Mr. Russell, Mr. Skinner, and Mr. Williams, gathered in a little knot, probably 60 or 75 feet from the shaft, and after they had that conversation Mr. Loveland came over to me and said they had decided to have me go right ahead with the work, and he said, ‘We will personally be responsible for what you do here until we notify you to stop,’ and on that assurance I stayed there.”

On the afternoon of the same day on which this alleged conversation took place, a meeting of the directors of the Michigan Rock Salt Company was held, at which were present directors Ashwell, Loveland, Russell, Williams, and Skinner. At this meeting resolutions were adopted :

(1) Authorizing the hiring of W. H. Ashwell & Co. as engineers.
(2) Directing the delivery of the bonds of the company for a deed of the company’s land.
(3) Authorizing the negotiation of leases.
(4) Directing a call to be made upon preferred stock subscribers for an installment of 25 per cent.
(5) Defining the policy of the company.
(6) “ Resolved: That the tender of George E. Currie for the sinking of a shaft for the mining of rock salt from the company’s property be, and the same is hereby, accepted, and that the president and secretary be instructed to enter into a contract with him for the execution of the work under the plans and specifications of William H. Ashwell & Co., the said contract to be for the sum of $120,000 for the sinking of a shaft 800 feet in depth, and to provide explicitly that for any greater depth sunk, the contractor shall receive payment at the rate of $150 per foot, and no more.”

Currie continued to work upon the shaft to June 28, 1902, when, without orders from anybody, he abandoned it because of nonpayment for work performed. During this period he was paid by the Michigan Rock Salt Company, upon estimates furnished by W. H. Ashwell & Co., engineers, the following sums: January 18, 1902, $800; January 21st, $1,000; January 24th, $1,000; February 15th, $500; February 18th, $800; February 19th, $200; February 10th, $750; March 8th, $400; April 26th, $300; June 5th, $250; June 7th, $200; and June 28th, $750.

The method of payment is illustrated by Exhibit 6 which follows:

“Detroit, Mich., Jan. 17th, 1902. No. 1.
“The First National Bank of Detroit:
“Pay to the order of George E. Currie......$800.00.
“Eight hundred dollars.
“Michigan Rock Salt.Company,
“By Emory Wendell, Treasurer.
“John A. Russell, Vice President.”
Indorsed on back as follows: “Geo. E. Currie.”
Stamped: “Paid, Jan. 18, 1902.”
“Detroit, Mich., Jan. 17, 1902.
“Michigan Rock Salt Company,
“ To George E. Currie, Dr.
“Jan. 17, 1902.
“On account of estimate for construction of shaft, $800,00.
“Correct: Thomas E. Griffin, Secretary.
“Approved: John A. Russell, Vice President.
“$800.00. Received Jan. 17, 1902, from Michigan Rock Salt Company, eight hundred ($800) dollars.
“George E. Currie.”

Indorsed on back:

“Check No. 1. Voucher No. 1.
“Michigan Rock Salt Company.
“Name: George E. Currie.
“Date, Jan. 17, 1902.
“ $800.00. Chargeable to shaft sinking, $800.00.”

On January 23, 1902, Currie wrote the following letter:

“Office of Geo. E. Currie,
“General Contractor,
“1250 Jefferson Avenue,
“Detroit, January 23, 1902.
“Michigan Rock Salt Co., City.
Gentlemen: We are now ready to use the steam air compressing plant which you have agreed to furnish for the prosecution of the work of shaft sinking. We are operating a pump at a depth of 60 feet with steam and have no way of purifying the air in the shaft, where the fumes of sulphur are so strong that it'is difficult for the men to work in the shaft at present.
“In about three days we will reach the rock and it will be impossible to do any drilling without compressed air. I have three Sergeant drills on the ground and have an organized force of men and am prepared to prosecute the work vigorously, but can do absolutely nothing until you comply with your part of the agreement.
“ Yours respectfully,
“ George E. Currie.”

On February 20, 1902, he again wrote:

“ Detroit, Feb. 20, 1902.
“Michigan Rock Salt Co., City.
Gentlemen: I find it absolutely impossible for me to continue the work of sinking shaft unless I receive my pay as fast as the work is done. I have built 72 feet of shaft with 12-inch wall which would amount to $10,-800.00, and 80 per cent, of it, the amount I should have received, amounts to $8,640.00. On this amount I have received $4,550.00, which leaves a balance due me of $4,090.00.
“ In addition to this I have relined about 60 feet of the shaft. In consideration of relining the shaft down to the rock, I was to be permitted to build a shaft 12 feet in diameter inside, all the way down in lieu of 15 feet as originally intended.
“ If I am compelled to stop work through lack of funds I will expect to be paid for this extra work at a price to be agreed upon between your engineer and myself. Unless I receive the $4,090.00 on or before Saturday, February 22nd, I shall be compelled to stop work on that date and will hold you responsible for all losses occasioned by suspending work.
“ Trusting you will take immediate steps to avoid this inconvenience, I am,
“ Yours respectfully,
“ Geo. E. Currie.”

After this letter was written the company made five payments to Currie, amounting to nearly $2,000, but as the work continued the balance in his favor grew larger until, in June when he quit, it amounted to some $7,000.

On November 14, 1902, Currie wrote:

“ Office of George E. Currie,
“General Contractor,
“ 1250 Jefferson Avenue.
“Detroit, Mich., Nov. 14, 1902.
“ Michigan Rock Salt Co., City.
Gentlemen: Unless we can adjust the amount of your indebtedness to me and make a satisfactory settlement in the very near future, I will be compelled to bring suit to get a settlement.
■“ Yours respectfully,
“ Geo. E. Currie.”

Soon after the writing of this letter, Currie claims to have written letters to defendant Loveland and to Skinner, Russell, and Williams, demanding payment. He kept no copy of the letters, and their receipt was denied.

The account for the labor and material furnished by Currie for this work was carried upon his books under the caption “ Michigan Rock Salt Co., Shaft Contract.”

After the abandonment of the work by Currie, matters seem to have remained stationary for. more than three years, when, on July 22, 1905, this suit was commenced.

At no time during the progress of the work did Currie advise defendant Loveland of its condition, or demand payment therefor as it became due. On the contrary, he presented his estimates to Mr. Russell, the vice president of the Michigan Rock Salt Company, and continually urged that company to respond by paying. He did the work according to the plans and specifications prepared by the engineers of the Michigan Rock Salt Company and accepted the estimates of those engineers.

It will be remembered that the specifications required Currie to give a bond for the faithful performance of the contract, which was to be paid for by the company. Attempting to comply with this provision, Currie made written application for such bond. The company applied to, having refused to issue it, he executed a personal bond to the Michigan Rock Salt Company and himself secured the signatures of sureties thereon. The specifications likewise required the company to furnish, at its own expense, an air-compressing plant for Currie’s use during the progress of the work. After he had been at work nearly two months and had earned, according to the terms of his contract, $9,000, he wrote the letter of January 33,1903, to the Michigan Rock Salt Company calling attention to the fact that he was ready for the air compressor and stating that:

“I am prepared to prosecute the work vigorously, but can do absolutely nothing until you comply with your part of the agreement.”

Every act of Currie’s from November 30, 1901, to November 14, 1903, is inconsistent with his claim that he had a contract with defendant Loveland, and is entirely consistent with the fact that he had, or believed he had, or expected to have, a contract with the Michigan Rock Salt Company, and did the work in question in reliance thereon. It is the claim of the defendant that the plaintiff, who is the assignee of Currie, and is in no better position than he, should be held to be estopped from recovery by reason of Currie’s own acts, as to which there is no controversy upon this record.

Estoppel is a bar which precludes a person from denying the truth of a fact which has in contemplation of law become settled by the act of the party himself, express or implied. If one’s conduct induces another to believe in the existence of certain facts, and the other acts thereon to his prejudice, the former is estopped to deny that the state of facts does in truth exist. 16 Cyc. p. 680, and cases there cited. Bigelow on Estoppel (5th Ed.), p. 570.

Applying this familiar principle to the facts disclosed by this record, we are of opinion that it must be said that Currie, and therefore the plaintiff, is estopped from denying that the labor performed and material furnished were performed and furnished for the Michigan Rock Salt Company. It must be borne in mind that defendant Loveland was a director in the company, and that as such director the course of Currie’s dealings with the company were within his knowledge. If the alleged conversation of November 30th actually occurred (a matter which we will discuss later), Currie’s own acts thereafter were such as to lead Loveland to believe that he (Currie) was proceeding with the work, relying upon the resolution of that date awarding him the contract, rather than upon the conversation. Currie never notified him of his obligation under the conversation, advised him of the progress of the work, nor demanded pay from him during its progress. He went on, expending nearly $15,000, without one word of warning to the man he now claims to be liable for this large sum, and by his conduct leading that man to believe that the company, not himself, was held by him (Currie) to be responsible. He will not now be permitted to deny the legal effect of his own acts. Maxwell v. Bridge Co., 41 Mich. 453 (2 N. W. 639); Pearson v. Hardin, 95 Mich. 360 (54 N. W. 904); Peninsular Stove Co. v. Osmun, 73 Mich. 570 (41 N. W. 693); Fifth Nat. Bank of Grand Rapids v. Dunham, 109 Mich. 23 (66 N. W. 870); Schmoltz v. Schmoltz, 116 Mich. 692 (75 N. W. 135); Barnard v. Patterson, 137 Mich. 633 (100 N. W. 893); Great Western Smelting, etc., Co. v. Evening News Ass’n, 139 Mich. 55 (102 N. W. 286); Scripps v. Sweeney, 160 Mich. 148 (125 N. W. 72).

Again, assuming that the conversation occurred, Did the minds of the parties meet in such manner as to produce a legal contract? It is unquestioned that the amount of work to be done by Currie and its cost to Love-land was not agreed upon. Currie himself testifies that he did not understand the undertaking of Loveland to extend to the entire contract of $120,000. He considered the arrangement merely temporary until the Michigan Rock Salt Company could so finance itself as to be able to take over the contract. At what time, or after how much work was performed, this was to be done, Currie was unable to state, and it is not claimed that Loveland fixed any time or amount. It would seem that the necessary elements of a valid contract are not present, though a conclusion to this'effect is unnecessary, in view of our conclusions upon the question of estoppel. It is unnecessary to determine whether or not the conversation occurred on November 80,1901, as alleged. It is sufficient to say that it is inherently improbable that defendant Loveland upon that occasion voluntarily undertook an obligation of such magnitude as the present demand indicates. The weight of the evidence is, in our opinion, against the alleged fact of its occurrence. It is, we think, clearly apparent from this record that Currie proceeded with the work, relying solely upon the credit of the Michigan Rock Salt Company, and that this situation continued until he found that credit exhausted, when he determined upon the course of action indicated by this suit.

The judgment is reversed, and a new trial ordered.

Bird, McAlvay, Blair, and Stone, JJ., concurred.


text:
    MARTIN v. JERRY MADDEN SHINGLE CO.
    1. Master and Servant — Personal Injuries — Warning and Instructing Servant — Contributory Negligence.
    It was a question of fact for the jury to determine whether or not an inexperienced employé who had not been warned of the danger of removing a sliver from between saws, and whose arm was jerked into the saw by a long sliver which he tried to remove, was guilty 'of negligence contributing to his injury.
    3. Same — Sufficiency oe Instruction.
    The question of the sufficiency of his employer’s instruction and of the necessity of warning the servant, who had been told to watch another employed at similar work, and had observed him for half an hour before commencing to work, was also for the jury.
    3. Same — Acts of Fellow-Servant.
    Defendant having introduced evidence to show that plaintiff had received a warning from a servant of defendant not to remove splinters from the saw by hand, the court erred in charging the jury that he would be bound only by a warning from some person who was known by plaintiff to have had experience about gang saws.
    Error to Delta; Flannigan, J.
    Submitted February 14, 1911.
    (Docket No. 160.)
    Decided March 31, 1911.
    Rehearing denied March 30, 1913.
    Case by Frederick P. Martin against the Jerry Madden Shingle Company for personal injuries. Judgment for plaintiff. Defendant brings error.
    Reversed.

      Cf. E. Empson, for appellant.

      John E. Tracy (H. O. Fairchild, of counsel), for appellee.
   Hooker, J.

The plaintiff, a young man about 19 years of age, applied for work in defendant’s sawmill, and was employed by the foreman to act as helper on a gang saw. It was his duty to remove the lumber as it came from the gang saws, and the accumulations of sawdust,, etc., for which a pole was provided. He was directed to watch another helper perform his duties, and see how his work was done. This he did for about half an hour before beginning work as helper. A few days later a sliver became fast between two of the saws, and he attempted to remove it, standing back of the saws at the time. He took hold of it with his hand and attempted to pull it out, and instantly his arm came in contact with the saw and was injured, so that amputation became necessary. He was unable to explain just how it happened, but his counsel’s theory was that, owing to the tendency of the back teeth of the saw to move upward and forward, the stick was caught and dragged forward, taking his hand and arm with it. He testified that the stick protruded beyond the saws about eight inches, and he took hold of the four inches farthest from the saw. The negligence charged is, in substance, that defendant failed to warn the plaintiff of the danger attendant upon the removal of slivers from the saws. Upon the part of the defense, it was claimed that he was properly instructed in the performance of his duty, that the danger was obvious, and that, moreover, he had been distinctly warned by two persons, and was guilty of contributory negligence. A judgment for $2,500 has been appealed from by the defendant.

In the light of what happened, it is easily seen that seizing a stick as this defendant did was a most dangerous course to take, and a jury might readily and properly conclude that an inexperienced young man, whose attention had never been called to the subject, would be unlikely to understand, or even consider, the possibility of the consequences of the movement of the saw toward the front. That it was a serious menace to any one who should take hold of a sliver is now apparent. We are not satisfied that this was so obvious a danger as to justify our taking the question from the jury, or to say that the direction to watch another helper is a sufficient instruction, where there are particular dangers attendant upon the operation of a machine, that might not, and perhaps would not, and in this case did not, become apparent to the operator. Instruction may be incomplete, if it does not warn against serious known dangers not necessarily apparent, or if it fails to advise the novice of the safer way, when the danger is not obvious to the uninitiated. We think this case, though a close one, falls within the rule laid down in Allen v. Jakel, 115 Mich. 484 (73 N. W. 555); Ertz v. Pierson, 130 Mich. 160 (89 N. W. 680); Kolodziejski v. Seestadt, 143 Mich. 38 (106 N. W. 557); and Braasch v. Stove Co., 147 Mich. 676 (111 N. W. 197).

We do not lose sight of the fact that a buzz saw is so obviously dangerous that, as was said in Willis v. Besser-Churchill Co., 126 Mich. 659 (86 N. W. 133):

“ It does not require a very high degree of intelligence to know that a rapidly revolving saw, more than four feet in diameter, is a source of danger to any one working in its immediate vicinity.”
“Plaintiff must be held to have known that the method adopted by him was unsafe, and, having been informed of a safe way to do the work, he would be guilty of contributory negligence in adopting the unsafe way.”

See, also, Wight v. Railroad Co., 161 Mich. 216 (126 N. W. 414); Van Wyck v. Dickinson, 148 Mich. 418 (111 N. W. 1033); Johnson v. Hovey, 98 Mich. 343 (57 N. W. 172); Torongo v. Salliotte, 99 Mich. 41 (57 N. W. 1042); Lindstrand v. Lumber Co., 65 Mich. 254 (32 N. W. 427). The distinction between those cases and the one now before us is in the character of the danger, and the uncertainty that it would be understood or foreseen by one unfamiliar with such saws, and the failure to warn against a danger which the master must have known.

We do not mean to be understood that a warning must be given against all sorts of dangers, obvious and rare, as well as concealed, but inevitable. The latter should be explained, and instruction as to the safer way given, and the reason made plain. A case distinctly in point is Parkhurst v. Johnson, 50 Mich. 70 (15 N. W. 107, 45 Am. Rep. 28). See, also, Reynolds v. Railroad Co., 64 Vt. 66 (24 Atl. 134, 33 Am. St. Rep. 908); Ingerman v. Moore, 90 Cal. 410 (27 Pac. 306, 25 Am. St. Rep. 138); Pullman’s Palace Car Co. v. Harkins, 55 Fed. 932, 5 C. C. A. 326; Pullman’s Palace Car Co. v. Laack, 143 Ill. 242 (32 N. E. 285, 18 L. R. A. 215); 26 Cyc. pp. 1172, 1173, and note 35. In Sullivan v. Manufacturing Co., 113 Mass. 399, the court said on this subject:

“ It may frequently happen that the dangers of a particular position for, or mode of doing work, are great, and apparent to persons of capacity and knowledge of the subject, and yet a party, from youth, inexperience, ignorance, or general want of capacity, may fail to appreciate them. It would be a breach of duty on the part of a master to expose a servant of this character, even with his own consent, to such dangers, unless with instructions or cautions sufficient to enable him to comprehend them, and to do his work safely with proper care on his own part. It was therefore competent for the plaintiff to show that there had been such a breach of duty on the part of the defendants, and, although he had in fact 'gone to work in the place pointed out, assenting so to do, yet that he was incapable of appreciating the dangers to which he exposed himself, or of doing the work safely without instructions or cautions which he did not receive.”

The claim of contributory negligence raised a question for the jury. There was testimony in the case that one Noel, a filer, twice warned the plaintiff against using his hands to remove sticks and slivers from the machine. The testimony was disputed. After retiring, the jury returned, and asked the court:

“Would a warning given by another employ é constitute a warning, and prevent the plaintiff from recovering?”

The court then said:

“ If another employe warned the plaintiff that it was dangerous to attempt to remove slivers by means of his hands, the plaintiff was bound to give heed to such warning; and if, after such warning by another employé, he used his hand, he would be guilty of contributory negligence, and cannot recover: Provided, you find that the employé who gave him such warning, notice, or caution was known by the plaintiff to be an employé experienced in and about the gang saws.” '

It is urged that the limitation, by the proviso, to men whom plaintiff knew to be experienced in and about the gang saws, was error. The case of Sullivan v. Manufacturing Co., supra, is in point here, as it affirmed the following instruction:

“ The plaintiff contended that any cautions given by the overseer would not avail to protect the defendant. But the court ruled that, if the plaintiff had such instruction, caution, information, or knowledge as would enable him, with a reasonable exercise of care on his part, to do his work with safety to himself, the defendant was not liable, and that it made no difference whether he derived it from the defendant’s officers, from a second hand in another part of the room, from a stranger, or from his own perceptions and intelligence.”

The proviso was erroneous, and the judgment is reversed, and a new trial ordered.

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