author: Ostrander, J.

text:
    MIDLAND COUNTY SAVINGS BANK v. T. C. PROUTY CO.
    1. Vendor and Purchaser — Assignment of Vendee’s Interest —Liability of Assignor.
    The assignment of a land contract by the vendee does not relieve the vendee from the payment of the purchase price or create a liability therefor against the assignee.
    2. Same — Indebtedness Secured — Lien.
    Under a land contract which creates no lien for the unpaid purchase money and no forfeiture for a default in its covenants, the right of the vendor or its assigns remains merely . a debt secured by the contract.

      3. Same — Remedies.
    Upon a default in the contract an action at law for the debt or foreclosure in equity of the vendor’s lien include the remedies of the vendor.’
    4. Same — Lien—Personal Property.
    No lien is created by land contract, without express provisions, on personal property placed upon the premises.
    5. Debtor and Creditor — Equitable Remedies — Lien on Assets of the Vendee — Corporations.
    . While the vendor may have an equitable lien upon the property of the vendee for the amount of the unpaid indebtedness, after a transfer thereof by the debtor to a copartnership, upon an assumption of the liabilities of the vendee, no personal liability is created by such conveyance and agreement, except by a promise to the creditor to pay his claim.
    Appeal from Midland; Dodds, J.
    Submitted June 9, 1909.
    (Docket No. 22.)
    Decided December 10, 1909.
    Bill by tbe Midland County Savings Bank against the T. C. Prouty Company, Limited, and tbe T. C. Prouty Company for tbe foreclosure of a land contract. From a decree for complainant, defendant partnership appeals.
    Modified and affirmed.

      William D. Gordon, for complainant.

      E. P. Bice and Alfred J. Mills (S. F. Master, of counsel), for appellant.
   Ostrander, J.

Complainant holds the legal title to certain premises and is the assignee of'the former owner, the vendor in an executory contract for the sale of the premises to T. C. Prouty Company, a corporation. The T. C. Prouty Company, Limited, a partnership, is, it is claimed, the assignee of the vendee in the land contract. This fact would not relieve the corporation (Foley v. Dwyer, 122 Mich. 587 [81 N. W. 569]), nor create any liability to the complainant on the part of the assignee.

The land contract contains no provision for a forfeiture. It creates no lien for the unpaid purchase money, and no security therefor, except insurance upon the buildings. The demand of complainant is, therefore, an ordinary money debt secured by the contract. Fitzhugh v. Maxwell, 34 Mich. 138. Complainant had its remedy at law against those whose promise to pay it holds (Foley v. Dwyer, supra), or the remedy it has chosen, to foreclose the vendor’s lien. Fitzhugh v. Maxwell, supra; Gray v. Hill, 105 Mich. 189 (63 N. W. 77); Walker v. Casgrain, 101 Mich. 604 (60 N: W. 291).

The court below determined and stated the amount due, and the amount to become due upon the land contract, ordered a sale of the premises described in the contract, found the defendant the T. C. Prouty Company, Limited, to be “personally liable for the debt secured by said contract,” and ordered it to pay any deficiency arising from the sale. It also found and stated and made provision for the enforcement of a lien “ in the nature of a chattel mortgage in favor of said complainant ” and against a large quantity of personal property and machinery belonging to and in the possession of said partnership. It is clear that the vendor in a land contract, in the absence of agreement, acquires no lien upon the property which the vendee in taking possession moves upon the premises. It might be that the failure to place the property on the premises and the removal of it from the premises would in a particular case be a violation of the contract, but I do not perceive how it would create a lien for the purchase money upon the property so removed.

There is no evidence of a promise of the defendant partnership to the complainant to pay the debts of the corporation. Complainant can reach the assets of the corporation which were transferred to the partnership only upon the theory that it is a creditor of the corporation out of whose assets it was and is entitled to make its debt. It may do this, and may be held to have a lien upon the assets of the defendant corporation which were transferred to the defendant partnership, to be enforced if the defendant partnership does not pay the debt.

It appears that the assets of the corporation transferred to the defendant partnership were valued at a considerable sum over and above the debts of the corporation which were assumed by the partnership. But I do not think the defendant partnership can be held to be “personally liable for the debt,” and that the decree in this respect should be modified. The effect of the change may be inconsiderable in fact. It will at least save the rights of the defendant partnership as against those stockholders whose interest in it was paid for by the assets of the corporation.

The decree should also provide that the complainant convey to the purchaser if a sale is made, or to the defendant partnership if it pays the debt. In other respects the decree should be affirmed.

Grant, Montgomery, Hooker, and Moore, JJ., concurred.


source: Caselaw Access Project

author: Moore, J.

license: Public Domain

text:
    MOERS v. MICHIGAN UNITED RAILWAYS CO.
    1. Parties — Joint Defendants — Discontinuance as to One Defendant-Amendment of Declaration — Time to Plead.
    Under a declaration containing four counts, of which the first two joined the railway company and a municipality as defendants in an action of negligence, and the second two, added by amendment, charged the railway company alone with neglect, it was properly held by the trial judge that the several counts might be tried alone after discontinuing the case against the municipality, and that the case was at issue as to the amended counts on a plea filed to the two original counts, and not amended or replaced by a demurrer within ten days, under Circuit Court Rule 10a.

      2. Damages — Negligence—Estates of Decedents — Profits — Parent and Child.
    In estimating the damages sustained by a father, whose minor son was in his employ at the time of his death from negligence of the defendant, the profits which he made from his son’s labor and could have secured by employing a substitute for the deceased, should not be included.
    3. Negligence — Street Railways — Carriers—Riding on Platform or Running Board — Joint Liability — Proximate Cause.
    The deceased, while riding on the running board of defendant’s street car, which the evidence showed to have been crowded, was swept off by another passenger who was riding in a similar situation, and who was struck by a pile of bricks left close to the track by the municipality in whose streets the railway company operated its cars. The bricks had been so situated for several weeks, during which time the defendant operated its cars with reference thereto. The trial court refused to submit to the jury the question of the negligence of the municipality as the proximate cause of the accident, and charged that if the brick were piled so close to the railway track as to endanger passengers riding upon the steps or running board of the defendant’s cars, its duty to its passengers required it to warn them of the danger, and not to permit passengers to remain in a position upon its cars where they might come in contact with the piles of brick. Held, that the ruling and instructions were proper.
    Error to Ingham; Wiest, J.
    Submitted June 10, 1909.
    (Docket No. 39.)
    Decided December 10, 1909.
    Case by Peter J. Moers, administrator of the estate of Edward J. Moers, deceased, against the Michigan United Railways Company for the negligent killing of plaintiff’s intestate. A judgment for plaintiff is reviewed by defendant on writ of error.
    Reversed.

      Sanford W. Ladd, for appellant.

      John J. Zimmer and Frank L. Dodge, for appellee.
   Moore, J.

This action is brought by Peter J. Moers, as administrator of the estate of Edward J. Moers, deceased, against the Michigan United Railways Company and the city of Lansing for damages arising out of the instant death of the decedent on the 2d day of September, 1907 (Labor Day), while a passenger on one of the cars of the Michigan United Railways Company, in the city of Lansing, on Michigan avenue. Plaintiff’s decedent, at the time of the accident, was seated on the step with his feet on the running board; the steps and running boards being from eight to twelve inches wide. Several other boys were seated on the north side of the motor car on the steps and running boards of the motor car, one of whom, Edward Daman, was seated nearer the front of the car, and he also was killed. Several weeks prior to the date of the accident, the city of Lansing had been removing the brick in the pavement from between the tracks of the Michigan United Railways Company and piling them on each side of the company’s track in the street along Michigan avenue. The bricks were removed from the pavement and replaced in the pavement and piled along the tracks by men employed by the city of Lansing and under the supervision of the superintendent of public works of the city of Lansing, who, in turn, received his instructions from the committee of the common council appointed for this purpose. Whether Edward Moers, plaintiff’s decedent in this case, was hit by the bricks and thus knocked off, or whether Edward Daman, after being knocked off from where he was sitting on the car, grabbed Edward Moers in passing and thus Moers was pulled from the car by Daman, is a disputed question.

The plaintiff originally filed his declaration with two counts against the city of Lansing and the Michigan United Railways Company. Plaintiff afterwards amended his declaration by adding two counts against the railways company alone. The jury returned a verdict in the sum of $1,846.28, upon which verdict judgment was entered. The case is brought here by writ of error.

After the jury were sworn, the plaintiff discontinued the case as to the city of Lansing. The defendant then moved that the case be discontinued as to it, for the reason that the first and second counts were joint counts against it and the city of Lansing, and, the later counts being only against the appellant, the several counts could not be combined in one declaration. This motion was overruled. Another motion was made. We quote from the brief of counsel:

“ This motion being denied, the defendant railways company moved for a continuance of the case on the grounds that the third and fourth counts of the declaration were not at issue for the reason that the rule would not operate to enter the plea theretofore entered to the first and second counts of the declaration, for the reason that the first and second counts were joint counts and joint only, the third and fourth counts were Beveral counts and several only, and that the same plea could not be entered to the third and fourth counts that had been entered to the first and second counts.”

This motion was also overruled. It is claimed the court erred in the disposition of each of those motions. This contention is decided against the appellant in the case of Michigan United Railways Co. v. Ingham Circuit Judge, 155 Mich. 478 (119 N. W. 588).

The second group of assignments of error requiring notice grow out of the admission of certain testimony of the plaintiff, an example of which is as follows :

“Q. I want to ask you at the time of your son’s death what were his services and time reasonably worth to you per day ?

“Mr. Ladd: If your honor please, I object to that for the reason that it does not incorporate in the question, or it does not eliminate from the question the profit which an employer is entitled to from the services of his employes, and the loss sustained by Mr. Moers would be the loss occasioned by the loss of his son, and what he could get another to take the place and do like work for. * * * The question should be what Mr. Moers was paying his son, or, at least, what he could get another man to take his place for, not what he received by virtue of his services as an employer.

“Q. I will ask it with a slight variation, for the services such as you have described that your son rendered for you and your business, what were they fairly and reasonably worth per day ?

“A. Well, he would be worth—

“Q. To you?

“A. Four dollars a day to me.”

Defendant requested the court to charge as follows:

“ If you come to the question of damages, I instruct you that, in determining the earnings of Edward J. Moers, you shall not take into consideration the profit of which Peter J. Moers, his father and employer, made upon the services of his son as an employe in his concern.”

This was not' given except as covered in the general charge. It is insisted that this action allowed profits to enter into the verdict which should not have been allowed. Upon that feature of the case the jury were charged:

“ The plaintiff sues as administrator of the estate of Edward J. Moers, deceased, and seeks to recover such damages as you, gentlemen, under the evidence, shall deem • fair and just with reference to the pecuniary injury resulting from such death to his father and mother. Edward J. Moers at the time of his death left a father and mother. His father and mother in case you award damages in this action to the plaintiff will take such damages in equal shares, provided it is reasonable to expect they will live during the period Edward J. Moers would have lived, had he lived to reach 21 years of age. * * *

“The damages, if any, awarded in this case, have reference only to the pecuniary injury resulting from the death of Edward J. Moers to his father and mother, and are limited to the period from the date of his death to the day he would have reached the age of 21 years, had he lived, and will not go that length unless it is reasonable to expect, and you so find from the evidence that had Edward J. Moers not have met with this accident he would have lived to reach the age of 21 years. * * *

“ If you come to the question of damages, it is your duty to take into consideration the age of Edward Moers and the experience he had had, the wages he could have commanded had he lived, with his degree of experience and knowledge. Had Edward J. Moers lived, what wages would he have been able to earn up until he was 21 years of age, if it is reasonable to expect he would have lived to be that age ? What would have been the expense of his maintenance, his clothing, his board, his washing, and those things incident to life ?”

The same rule was stated in various forms. Ordinarily the above statements would be regarded as a statement of the rule of damages. At the time of the accident decedent was 18 years and 4 months old. The testimony varied as to the wages he could earn. The amount of the judgment indicates that the jury may have acted upon the statement of the father that the young man’s services were worth to him $4, which would include a profit upon the work he did. In view of the testimony which was allowed to remain in the case, we think the request which we have quoted should have been given. It is obvious that a like profit could have been made upon the services of another employe.

The other group of errors requiring attention is covered •by the following quotation from the brief of counsel:

“ The brick knocked the boys from the car. The brick was piled in the street by the city. The city can compel the railways company to operate its cars. Can it be said that the proximate cause of this accident was not the brick that was piled in the street by the city officials? We submit not, and that the record discloses that at least it should be a question of fact to be submitted to the jury as to whether or not the proximate cause of the accident in question was not the piling of the brick along the tracks of defendant railways company in the street along Michigan avenue that caused this accident, and that the circuit judge in refusing the requests of the defendant railways company and charging as already pointed out in the several paragraphs of his charge committed an error which was prejudicial to the defendant railways company beyond all shadow of doubt, and that for this reason this case should be reversed, if for no other.”

The jury were charged as follows:

“Evidence has been introduced showing the city of Lansing piled the brick alongside of the railway track, and that the railway company has the right to use the street; that is, the railway • company and the street car system. If the city of Lansing piled the brick so close to the railway track as to endanger passengers riding upon the step or running boards of defendant’s street cars, then it was the duty of the railway company, its duty to its passengers, if any were on the step or running board, to warn such persons of the danger, and not permit them to remain in a position upon its cars where the running of the car might bring them into contact with the brick so piled. And, if defendant failed under such circumstances to do this, then its negligence or failure of duty to its passengers renders it liable, and it is no excuse for it to say the city piled its brick there.”

The jury were fully and properly instructed upon the question as to whether a notice or warning had been given as to the duty of deceased to observe conditions and to exercise due care.

For the error above stated, we think the judgment must be reversed, and a new trial ordered.

Grant, Montgomery, Ostrander, and Hooker, JJ., concurred.


author: Ostrander, J. Moore, J.

text:
    SCHULTZ v. MICHIGAN UNITED RAILWAYS CO.
    1. Negligence — Street and Interurban Railways — Operation oe Cars — Pleading.
    A declaration against a street railway company is not subject to the objection that it does not state the means by which a car was suddenly started, when it alleges that the defendant first slackened the speed of the car as if to stop for the station at which the plaintiff intended to alight, then suddenly and negligently started the car forward with great and unreasonable force and swiftness, throwing the plaintiff from the car.

      2. Same — Contributory Negligence — Conduct of Passenger— Alighting from Cars.
    It is not negligent, as a matter of law, for a passenger to leave her seat as the car slackens speed in approaching a station and to go towards the exit preparatory to alighting.
    3. Same — Operation of Cars — Acceleration of Speed.
    It is not negligence for the servants of a carrier of passengers, in ignorance of the fact that the plaintiff had left her seat for the purpose of alighting at her destination, to suddenly increase the speed of the car.
    4. Same.
    The decrease and increase of speed in the operation of electric cars are the ordinary incidents of travel and are’ not proof of negligence.
    Moore and Montgomery, JJ., and Blair, C. J., dissenting.
    Error to Calhoun; North, J.
    Submitted April 29, 1909.
    (Docket No. 23.)
    Reargued October 11, 1909.
    Decided December 10, 1909.
    Case by Susie R. Schultz against the Michigan United Railways Company for personal injuries. A judgment for plaintiff is reviewed by defendant on writ of error.
    Reversed.

      Sanford W. Ladd, for appellant.

      William E. Ware, for appellee.
    Plaintiff recovered a verdict and judgment for injuries sustained August 23, 1906, while she was a passenger on one of .defendant’s interurban cars in the city of Battle Creek. She boarded the car at the station of the company in the city to ride to a point in the outskirts of the city at the intersection of Marshall and Marjorie streets, where there is a waiting room maintained by defendant and a landing, at which defendant’s cars usually stop upon request. The station is known as “ Postumville.” She was Parrying a parasol and a flatiron holder. Testimony introduced in her behalf tends to prove that she paid the usual fare to the conductor, signified to him her desire to alight at Postumville, and received by word of mouth or otherwise the acknowledgment of the conductor that he understood her desire. She did not thereafter communicate with the conductor. It does not appear that he was near her, or that he saw her when she started to leave the car, or that the motorman knew of her desire to leave the car. She understood that the car upon which she was riding was known as a limited car, had often ridden over this part of defendant’s line, knew the cars made quick time — fast time — that they were heavy and operated by powerful motors, stopped quickly, and started quickly. The car was 60 feet in length, and it was stated at the argument that it weighed 39 tons. She and her sister occupied the last seat in the car; the extreme rear of the car being occupied as a smoking compartment.
    She testified:
    “ When we got up to Postumville, the car slackened up for me to get off, and I gets up and goes out, and just as I gets out where I am going to step down he jerked the car full force and pulled the bell rope, and that is the last I remember, and I struck on this shoulder [indicating] first.
    “ Q. Now, when you got up from your seat, where did you go ?

      “A. I went to get out. The car was slacking for me to get out.
    “ Mr. Ladd: I object to that, and move to strike it out as a conclusion of the witness.
    ‘ ‘ The Court: The part ‘ for me to get off ’ may be stricken out.

      “Q. Now, I want you to be careful, and tell me where the car was in reference to Postumville station when, as you say, the car slackened up ?

      l‘A. Right there by the station.

      “Q. Now, you may describe as near as you can how the ear was running before it slacked up and how it run when it did slack up.
    ‘ ‘A. It was running with quite full speed after it crossed the Grand Trunk tracks [80 rods west of Postumville], and, when it got up there toward this little waiting room, it slacked up and it kept slacking up until it got almost to the station where I was to get off, and it slowed down, and I thought it was slowing down for me to get off, so I gets up out of my seat, and says to my sister, ‘ Good-bye,’ and I went out, and just as I got to where I was just stepping down on the platform, I was in the little entrance, the motorman jerked the car full force, and he rung the bell.

      “ Mr. Ladd: I object to the statement about the motorman jerking the car full force, as being a conclusion of thé' witness not based upon fact, and move to strike it out.
    “ The Court: I think the part with reference to the motorman may be stricken out.

      “Q. Now, you say the car slowed down and was going very slow, and as it was going along slowly you may state what happened.

      “A. I was thrown from the car when they started it .up full force. It threw me out. That was the last I remember until I was picked up.
    ‘ ‘ Q. Did the car stop ?

      “A. No, sir; it did not.

      “Q. Did you’ make any attempt to get off of your own accord except to go to the back end of the car ?

      “A. No, sir. * * * After being thrown from the car, Mr. Miller immediately picked me up. Mr. Martin was there also. There was no one else there that I remember of at the present time, but my husband was near by there.”
    She further testified that she thought she struck the ground a dozen feet east of the station, but did not realize she was hurt until she was picked up, and that she walked home with her husband, a distance of about two blocks. On cross-examination:

      “Q. Just when you got to that rear door, the car had been slacking down before this, you say ?

      “A. Yes, sir.

      “Q. Then the car suddenly started up, and threw you out of that door and off, is that correct ?

      “A. It jerked, the car gave a jerk, and they rung the bell. * * * It threw me out. This door was between the aisle that we have been talking about and the rear platform of the car, because I struck my shoulder there. * * *

      “Q. And, just as you got to this rear door expecting to get out, the car started up suddenly with a jerk, didn’t it ? Is that correct ?

      “A. It jerked and threw me out.

      “Q. And threw you through this rear door ?

      “A. Yes, and out into the street. It threw me through the door and onto the platform and onto the ground.”
    The vestibule of the car was inclosed on three sides. Only the side on the south or station side of the car was open. The waiting room referred to was on the south side of Marshall street, in which defendant’s tracks are laid, and to the east of it and connecting with the walk running north from the Postum Cereal Company’s plant is a landing. The car was going east. There was an upgrade east of the station. The car made no stop until it reached Marshall. Plaintiff’s witness Martin testified that he saw plaintiff just after she struck the ground and went to assist her; that she got up without assistance, and that he should think she struck the ground about 20 feet east of the private walk which has been referred to. Prank Miller, a witness called for the defendant, testified that he was standing five feet east of the platform or landing; that he saw plaintiff on the platform of the car as the car passed, and there were three or four men also on the platform ; that she alighted or fell to the ground, and struck the ground about 15 feet east from him. The sister of plaintiff rode on the car to Marshall, and did not know until the next day that plaintiff had been hurt. She testified that at the time the car passed Postumville the conductor was in the forward end of the car, kneeling down for some purpose; that she noticed the slacking of speed as the car approached the Postumville waiting- room, noticed the increased speed; that the increase of speed was sudden, nearly jerking some packages which she had in her lap off her lap. To the west of Postumville station defendant’s line is double tracked. Directly north of the landing which has been referred to and from thence east there is a single track; the switch points being substantially north of the center of the landing. The car approached the station on the south track; its direction immediately north of the waiting room and landing being upon the curve to the north and to the single track. The duty of the defendant and the negligence averred in the first count of the declaration — the second count was withdrawn from the attention of the jury by the court — is as follows: '
    “And thereupon it then and there became and was the duty of the said defendant to safely and securely carry and convey the said plaintiff from its said station in the said city of Battle Creek to its said station at Postumville aforesaid in the said car, and, upon the arrival of said car at said station at Postumville aforesaid, to stop the said car there, and give the said plaintiff reasonable time and opportunity while exercising due care and prudence on her part to safely and securely alight therefrom to the-ground, and to so control, manage, and operate said car by its servants and employés then and there in charge and control of said car as not to impel and throw said plaintiff from the said car to the ground at its said station at Postumville aforesaid. Yet the said defendant by its. said servants and employés then and there in charge and control of said car carelessly and negligently, disregarding the said duties of said defendant in the premises, then and there upon the arrival of said car at the said station at Postumville did not stop said car there, and give the said plaintiff reasonable time and opportunity while exercising due care and prudence on her part to safely and securely alight therefrom to the ground, and did not so control, manage, and operate the said car as not to impel and throw the said plaintiff from the said car to the. ground at its said station at Postumville aforesaid. But the said defendant by its said servants and employés upon the arrival of said car at said station at Postumville. aforesaid, and as the said car was approaching near to the said station, slackened the speed of said car as it approached the said station, and then and there at the said station, while the said plaintiff with all due care and prudence on her part was standing within the said car and near the rear doorway thereof through which it was necessary for her to pass in order to reach the rear platform of said car and the steps leading therefrom out of the said car to the ground, and while the said plaintiff, with all due care and prudence on her part, was standing there-near the said doorway ready to pass from within the said car upon and over the said platform and steps of said car to-alight from the said car to the ground should the said car be stopped at the said station to enable her to safely and securely alight therefrom to the ground there, and while the said car was still as aforesaid, moving slowly along there, carelessly and negligently suddenly started and moved the said car forward with great unnecessary and unreasonable force and swiftness, and with such force and swiftness as to impel and throw her, the said plaintiff, violently and swiftly out through the said rear doorway of the said car and off the said car to and upon the ground there at the said station at Postumville aforesaid with great force and violence and against the will of her, the said plaintiff.”
    The opening statement of counsel for the plaintiff having been made to the jury and plaintiff sworn as a witness, objection to the introduction of any testimony was taken upon.the ground that the declaration did not state a cause of action, and that the opening of counsel did not state a cause of action. When the plaintiff rested, the court was moved to direct a verdict for defendant because (a) the declaration did not state a cause of action; (6) proofs did not conform to the allegations of the declaration; (c) no negligence of the defendant had been proven; (d) the proofs did show plaintiff to be guilty of contributory negligence. A witness having been sworn for the defendant, who gave testimony concerning the speed of the car as it passed the station at Postumville, and that it was moving at the rate of eight or ten miles an hour (this testimony is not disputed and is the only testimony upon the subject), and after some rebutting testimony had been introduced, the court was again moved to direct a verdict for the defendant for the reasons already stated.
    Instructions to the jury included the following:
    “And I also instruct you at this point that the failure of defendant company to stop its cars at Postumville for the plaintiff to get off the car is not the proximate cause of the injury, and did not cause the injury sustained by the plaintiff, and this case is not submitted to you upon that theory at all. It is upon the theory that, if the plaintiff has any right of action at all, it is because of the negligent and careless manner in which the car was operated while in motion at the time when the plaintiff was in such a position as the circumstances justified after having given the conductor reasonable notice of her intention and desire so to do, if you find these things established from the evidence in the case.
    “If you find that the plaintiff became a passenger on one of the defendant’s cars by paying her fare to the stopping place at Postumville, I charge you it was the duty of the defendant company on arriving at the place of plaintiff’s destination upon being notified by the plaintiff of her desire to leave the car to stop its car a sufficient length of time to enable the plaintiff with the exercise of reasonable diligence to alight in safety, and if upon reaching her stopping place the plaintiff gave the conductor of the car reasonable notice of her desire to leave the car, and as the place was approached, this stopping place, that the car slowed down in such a manner as to lead the plaintiff to reasonably believe that the car was about to stop to let her off, then I charge you as a matter of law that it would not necessarily be negligence on the part of the plaintiff to start to the rear of the car so that she would be in a position to alight with celerity upon the stopping of the car, but in doing so she is bound to exercise reasonable care and caution to avoid accident or injury. If you find from the evidence that the plaintiff did so attempt to approach the rear of defendant’s car and that, as she reached the rear end of the car, the defendant, through its employés, carelessly and negligently accelerated the speed of the car as it reached the place where plaintiff was to alight, and in consequence thereof and without any negligence on the part of the plaintiff she was thrown from the car and injured, she has a right to recover in this case, provided she sustained damages as the result thereof, but the plaintiff, as I have stated to you before, is bound to observe such precautions for her own safety as reason and prudence might dictate, and, if disaster came to her by reason of her failure to do so, then she cannot .recover in this case.”
   Ostrander, J.

(after stating the facts). Confining discussion to the points made by appellant, we find the ■objection to the declaration to be that it does not state by what means the car was suddenly started. It is alleged that the defendant first slackened the speed of the car, and then carelessly and negligently suddenly started and moved the car forward with great unnecessary and unreasonable force and swiftness. The consequences to the plaintiff of such movement, it being alleged that she was careful, are stated. The implication is that defendant’s servant voluntarily controlled the movement of the car. The objection is without force.

It is next contended there is no evidence of defendant’s negligence, for which reason a verdict for defendant should have been directed by the court. This contention is, under the peculiar facts of the case, so intimately connected with the subject of plaintiff’s negligence that the subjects may properly be considered together. It is clear that those operating this car did not intend to stop the car at Postumville. They did not operate it, and did not intend to operate it, so as to permit her to alight there. The reasonable, perhaps the necessary, inference to be drawn from the testimony, is that this car was in control of the motorman, was in proper running order upon a proper track, and that the increase of speed complained about was occasioned by the application of power. The movements of cars to and over switches are incidents of railway travel. It is neither negligent to decrease the speed of an electric car in approaching and. passing a switch nor negligent to increase its speed after passing the switch by the application of power or the release of brakes, or both. Ordinarily such operation is regarded as prudent operation. Assuming that none of the passengers upon the car desired to alight at Postumville, the testimony wholly fails to show negligence in its management or its operation. It is only by assuming that because defendant owed to the plaintiff the contract duty to permit her to alight there, and because her position in the car was due to reliance upon a performance of this duty, and the diminished speed, therefore the car was negligently operated, and therefore plaintiff was without fault. This assumption involves the duty of defendant in the exercise of due care to. anticipate that plaintiff would leave her seat, as passengers often and perhaps commonly do, and approach the door of the car before arriving at the station. It is not claimed that any servant of defendant saw plaintiff during her passage from her seat to the door. Under the circumstances disclosed, it cannot be said, as matter of law, that in passing to the door while the car was in motion the plaintiff was negligent. Bradley v. Railway Co., 94 Mich. 35, 38 (53 N. W. 915); Etson v. Railway Co., 110 Mich. 494, 496 (68 N. W. 298). Neither should it be said that the operation of the car, otherwise proper, was negligent operation because plaintiff did leave her seat. She had the right to remain in her seat until the car had stopped. Defendant was not bound to take notice that she would do what her testimony disclosed she did do. If it were otherwise, the fact of prudent or imprudent operation of cars would depend upon the actions of those individuals who insist upon boarding and leaving a car before it arrives and without regard to the immediate presence or absence of those in charge of the vehicle. I am not able to distinguish the case in principle and Etson v. Railway Co., supra. In that case the car, by a sudden acceleration of speed, moved forward to its stopping place while plaintiff was in the position — out of his seat — assumed by him for the purpose of quickly alighting. In the case at bar, the car did not stop at the regular place for alighting, but, with an increase of speed, ran by the station.

The judgment is reversed, and a new trial granted.

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

Moore, J.

(dissenting). I cannot agree with the conclusion reached by Justice Ostrander in this case.

The plaintiff got upon the car at the station of the company in the city of Battle Creek to ride to a point in the outskirts of the city, where there is a waiting room maintained by defendant, at which defendant’s cars usually stop upon request. The station is known as “Postumville.” Testimony introduced in her behalf tends to show that she paid the usual fare to the conductor, and at the same time told him she wanted to alight at Postumville, and received by word of mouth or otherwise the acknowledgment of the conductor that he understood her desire. The record also shows that she had frequently taken this car and alighted at Postumville. She testified:

“ "When we got up to Postumville, the car slackened up for me to get off, and I gets up and goes out, and just as I gets out where I am going to step down he jerked the car full force and pulled the bell rope, and that is the last I remember, and I struck on this shoulder [indicating] first.

“Q. Now when you got up from your seat, where did you go ?

“A. I went to get out. The car was slacking for me to get out.

Mr. Ladd: I object to that, and move to strike it out as a conclusion of the witness.

“The Court: The part ‘for me to get off’ may be stricken out.

“Q. Now, I want you to be careful, and tell me where the car was in reference to Postumville station when as you say the car slackened up ?

“A. Right there by the station.

“Q. Now, you may describe as near as you can how the car was running before it slacked up, and how it run when it did slack up.

“A. It was running with quite full speed after it crossed the Grand Trunk tracks [80 rods west of Potsumville], and, when it got up there toward this little waiting room, it slacked up and it kept slacking up until it got almost to the station where I was to get off, and it slowed down, and I thought it was slowing down for me to get off, so I gets up out of my seat and says to my sister ‘ Good-bye,’ and I went out, and just as I got to where I was just stepping down on the platform, I was in the little entrance, the motorman jerked the car full force and he rung the bell.

“Mr. Ladd: I object to the statement about the motorman jerking the car full force as being a conclusion of the witness not based upon fact and move to strike it out.

“The Court: I think the part with reference to the motorman may be stricken out.

“Q. Now, you say the car slowed down and was going very slow, and as it was going along slowly you may state what happened ?

“A. I was thrown from the car when they started it up full force. It threw me out. ■ That was the last I remember until I was picked up.

“Q. Did the car stop ?

“A. No, sir; it did not.

“Q. Did you make any attempt to get off of your own accord except to go to the back end of the car ?

‘A.' No, sir. * * * After being thrown from the car, Mr. Miller immediately picked me up. Mr. Martin was there also. There was no one else there that I remember of at the present time, but my husband was near by there.”

She further testified that she thought she struck the ground a dozen feet east of the station, but did not realize she was hurt until she was picked up, and that she walked home with her husband, a distance of about two blocks. On cross-examination:

Q. Just when you got to that rear door, the ear had been slacking down before this you say ?

“A. Yes, sir.

Q. Then the car suddenly started up, and threw you out of that door and off ? Is that correct ?

liA. It jerked, the car gave a jerk, and they rung the bell. * * * It threw me out. This door was between the aisle that we have been talking about and the rear platform of the car, because I struck my shoulder there. * $ *

“Q. And just as you got to this rear door, expecting to get out, the car started up suddenly with a jerk, didn’t it? Is that correct ?

“A. It jerked and threw me out.

“Q. And threw you through this rear door ?

“A. Yes; and out into the street. It threw me through the door and onto the platform, and onto the ground.”

We have, then, a situation where the testimony tends to show that a passenger has taken an electric car for a given station, has paid to the conductor her fare to that station, has told him where she wishes to alight, and has his assurance that she will be permitted to alight at that station. This is followed by the further fact that, as the car approached the station, it ran much slower, as though it was about to stop at the station to which the fare was paid, and where the passenger had told the conductor she desired to alight, and where she had been assured he understood her. Was she guilty of contributory negligence in doing what she testified she did ? What constitutes contributory negligence has been defined in many cases and text-books. The following is a fair statement of the law:

Contributory negligence means the failure to observe that degree of care which ordinarily careful and prudent persons usually observe under the same or similar circumstances to protect themselves from harm, which failure helped or caused the injury. McLaughlin v. Louisville Electric Light Co., 100 Ky. 173 (37 S. W. 851, 18 Ky. Law Rep. 693, 34 L. R. A. 812).” 2 Words & Phrases, p. 1543.

Was what was done by plaintiff contrary to this rule ? It is a matter of common knowledge that passengers upon electric cars as their street or station is approached, and the car lessens its speed, arise from their seats, and go toward the exit of the car preparatory to alighting. It is a matter of common knowledge that this is expected of them by conductors. So far as I know, it has never been decided that to do this is not the exercise of that degree of care which ordinarily careful and prudent persons observe under like conditions. Whether, under the facts disclosed by this record, plaintiff was guilty of contributory negligence, presented a case peculiarly within the province of the jury.

But it is said no negligence is proven on the part of defendant. It has already appeared that her fare was paid and accepted to Postumville; that the conductor was informed where the passenger desired to alight; that she was assured he understood; that the car slackened as though, to stop; that the passenger proceeded, as she had a right to proceed, toward the exit, with a view of alighting where she had a right to expect she would be allowed to leave the car, and, while she was where she had a right to be, without warning, the car is suddenly started with such violence as to throw her with great force out of the open doorway. If, under this proof, the court may say, as a matter of law, that the inference of negligence may not be fairly drawn by the jury, then there remains little for the jury to do in this class of cases.

I think the judgment should be affirmed.

Blair, C. J., and Montgomery, J.. concurred with Moore, J.


author: Montgomery, J.

text:
    CITY OF ALPENA, for use of ZESS, v. TITLE GUARANTY & SURETY CO.
    1. Municipal Corporations — Contracts for Public Improvements — Statutory Bond to Protect Materialmen.
    An action for the benefit of materialmen may be maintained on a bond given to the city of Alpena to provide, at the charge of the principal, all labor and materials required in the performance of a contract for public improvements, and to indemnify the city, its officers, council, and the people of the State of Michigan from all claims to become due on account thereof, as upon a statutory bond given in compliance with 8 Comp. Laws, § 10748, even though the obligee of the bond was not the people, but the city.
    2. Same — Construction Bond — Public Officers.
    Failure to require such a bond as substantially complies with the statute renders the officers charged with the duty liable to the injured materialmen or laborers.

      3. Same — Principal and Surety — Bonds—Construction and Interpretation-Exhausting Remedy Against Obligee.
    A clause in. such bond containing an agreement to furnish, at the principal’s cost and charge, the labor and materials used, is intended to require the-payment of all such claims, and not merely to indemnify the officers of the city after an action to charge them is brought and determined.
    Error to Alpena; Emerick, J.
    Submitted June 16, 1909.
    (Docket No. 110.)
    Decided December 10, 1909.
    Assumpsit by the city of Alpena, for the use and benefit of Isaac Zess, against the Title Guaranty & Surety Company upon a statutory bond. A judgment for plaintiff on a verdict directed by the court is reviewed by defendant on writ of error.
    Affirmed.

      Luman W. Goodenough, for appellant.

      O’Brien & Francis, for appellee.
   Montgomery, J.

On the 15th of May, 1905, the Murray Company entered into a contract with the city of Alpena for the construction of a crib, conduit, etc., which contract provided, among other things, that the contractor should, at its own proper cost and charges, “provide all manner of labor, materials, apparatus, utensils and cartage of every description needful for the due performance of the said several works.” At the same time a bond was executed by the defendant, reciting the execution of said contract, and with the condition—

“That if the said the Murray Company shall well and truly keep and perform all terms and conditions of said contract on its part to be kept and performed, and shall indemnify and save harmless the said city of Alpena, the city council and officers thereof, as herein stipulated, and shall save harmless the people of the State of Michigan, against all claims due from said contractor, or from subcontractors under them, which may accrue to any person, firm or corporation, on account of any labor performed or materials furnished under and by virtue of this contract, then this obligation shall be of no effect; otherwise it shall remain in full force and virtue.”

The statute (section 10748, 3 Comp. Laws) imposes the duty upon public officers, contracting for work of this character, to require sufficient security by bond for the payment by the contractor and all subcontractors for all labor performed and materials furnished in the erection, repairing or ornamenting of such buildings, works, or improvements. It has been frequently held that an action may be maintained upon such a bond by the parties in whose interest it is required. It is also established that a total failure to require such bond is such a breach of duty as authorizes an action by the party injured against members of the board or municipal body in their individual capacity.

The purpose of this bond to protect the officers against such action is clear. This purpose is not defeated by the fact that the bond is not in the precise form required by section Í0744, or by the -fact that the obligee in the bond is the city of Alpena, instead of the people of the State of Michigan, as required by the said section. See Board of Education of Detroit, v. Grant, 107 Mich. 151 (64 N. W. 1050).

It is contended, however, that this is merely a bond of indemnity, and that it is not conditioned for the payment of the claims for labor and material, and ■ that an action upon the bond can only be had, if at all, after the city or its officers have been damnified by an action; that is, after a recovery has been had against them. But, if this interpretation be given to the condition, it is very doubtful if the bond can be given any effect for the purpose intended. There are in fact three conditions, only two of which need be here referred to: The first that the Murray Company should well and truly keep and perform all terms and conditions of said contract on their part to be kept and performed, and should indemnify and save harmless the said city of Alpena, the city, council and officers thereof, as therein stipulated, and should save harmless the people of the State of Michigan against all claims due from said contractor or from subcontractors under them, which might accrue to any person, firm, or corporation, on account of any labor performed, or materials furnished, etc.

Now, if we turn to the contract, we discover no stipulation for saving harmless the city council and officers, except the provision that the Murray Company shall, at its own proper cost and expense, furnish the. labor and material. If these two provisions are read together, therefore, it imports an obligation* to save harmless the city council and officers thereof by furnishing at their own proper cost and expense the labor and material required. So construed, we think this provision falls properly within the reasoning adopted by this court in the recent case of Stoddard v. Hibbler, 156 Mich. 335 (120 N. W. 787). In that case we held that an obligation to perform a building contract according to its terms and conditions imported an obligation, not only to furnish the labor and material, but to pay for the same. It is true that in that case the failure to pay for the material and labor resulted in a mechanic’s lien in favor of the laborer and material-men. But it was strongly urged that the condition to perform the contract on the part of the principal did not imporkan obligation to pay. In that respect the case is like the present, and, when it is seen that the only method stipulated in the contract by which the city council and officers are to be saved harmless against claims of laborers and materialmen is by the Murray Company furnishing the same at their own cost and expense, the case cited is authority that the bond covers such an obligation. The words, “furnish at his own cost and expense,” may well be held to have the sa'me import as was given them in the case cited. See, also, Korsmeyer Plumbing & Heating Co. v. McClay, 43 Neb. 649 (62 N. W. 50), and Morton v. Harvey, 57 Neb. 304 (77 N. W. 808).

The circuit judge was of the opinion that an action could be maintained upon this bond for the use and benefit of the materialmen. In this conclusion we concur, and the judgment in favor of the plaintiff will be affirmed.

Blair, C. J., and Grant, McAlvay, and Brooke, JJ., concurred.


text:
    HULL v. DETROIT UNITED RAILWAY.
    1. Negligence — Street Railways —Carriers op Passengers — Boarding Cars.
    Starting a oar while the passenger stands on the running board, assisting another passenger to board the car, constitutes actionable negligence for a resulting injury.
    2. Same — Proximate Cause — Damages—Question op Fact.
    Evidence that the plaintiff was injured on the back of his hand sufficiently to start the blood; that a short time after the injury he got his hand in some thistles and that blood poisoning developed; that his physician considered the result to have followed from a blow upon the back of the hand, raises a question of fact for the jury, though the defendant’s expert witness testified that the thistles might have caused blood poisoning.
    3. Trial — Instructions to Jury.
    While an instruction by the court that one physician,said, “in his judgment the injuries were due to an accident received in a street car ” was not strictly accurate, it could not be said to constitute reversible error, where the testimony of the physician tended to establish such a conclusion.
    4. Expert and Opinion Evidence — Weight.
    It is not error to instruct the jury that opinion evidence is not testimony as to facts, and is entitled to such weight as the jury may, in its sound judgment and discretion, think it should have, where the court further charged that the jury should accept the opinion which seemed to them the more reasonable under all the circumstances.

      Error to Wayne; Mandell, J.
    Submitted June 11, 1909.
    (Docket No. 14.)
    Decided December 10, 1909.
    Case by Robert E. Hull against the Detroit United Railway for personal injuries. A judgment for plaintiff is reviewed by defendant on writ of error.
    Affirmed.
    Brennan, Donnelly & Van De Mark, for appellant.
    Lehman, Biggs & Lehman, for appellee.
   Montgomery, J.

The plaintiff, a man 76 years of age, brought this suit to recover damages which are claimed to have been the result of an injury received while boarding a street car belonging to the defendant company, some time in the month of July, 1904. The plaintiff’s claim is that, as he was boarding the car, having helped his wife and grandson on the running board, and stepped on the running board himself, the car started and threw him down. He was not thrown to the pavement, but a Mr. Boring who was with him, and had not yet got on the car, caught him and kept him from being thrown off the running board. Plaintiff’s testimony tended to show that his right knee was skinned, a place about as large as a half dollar, and that his right shin and right hand were also skinned. He testified that his right hand was skinned from the knuckles down to the wrist; that c< it was roughened up and bled a little. The skin was not broken to make the blood run, but the blood oozed out a little.”

The evidence shows that a week or two after the street car accident the plaintiff was pulling a hill of potatoes in the garden, and started to use his right hand for that purpose and got Canadian thistles in his hand, and one of the most important questions in the case is whether the results hereinafter stated were due to the injury received at the hands of the defendant, or were due to the Canadian thistles. The testimony, shows that when his hand began to swell, he poulticed it, and gave it treatment for a considerable time, but got no relief. It was a year or more later that he consulted Dr. Mulheron, and was treated by him from time to time, and finally, in the spring of 1906, was compelled to undergo an operation and submitted to the loss of his hand. The case was submitted to a jury, and a verdict found for the plaintiff of $1,500. The contention is made in this court that this verdict is so clearly against the weight of evidence as to call for a reversal, and it is further contended that there is but the barest scintilla of testimony to support the plaintiff’s claims.

Upon the question of whether the plaintiff suffered an injury at the hands of the defendant, the testimony is very clear. The real question in doubt is as to whether the subsequent suffering which he endured, resulting in the loss of his arm, was due to that injury, or is traceable to the contact with the Canadian thistles a few days later. Upon this question the jury were aided by the testimony of two able and competent physicians. The testimony of Dr. Mulheron, who saw the hand, was that he discovered in the palm of the hand nothing to indicate any injury; that the swelling was on the back of the hand, and that the injury was such a one as would result from a blow such as the plaintiff claims to have received, and that the plaintiff developed a disease called periostitis, which means an inflammation of the periosteum. Dr. Spitzley, called for the defendant, testified that this periostitis might have been occasioned' by getting Canadian thistles in the palm of the hand, and that the swelling on the back of the hand would not necessarily negative this theory. Dr. Spitzley also testified that an injury such as the plaintiff described might have resulted in an affection which would develop periostitis.

It is urged that the testimony left the jury to guess as to the cause of the injury. We think it is not open to this objection in a legal sense. It is true that the jury had to determine which was the more probable theory of the two, but, in view of the testimony of Dr. Mulheron that he, even in the absence of knowledge of the previous injury to the back of the hand, had not ascribed the condition to the injury occasioned by contact with the thistles, we think there was room for balancing the probabilities, and that the jury were amply justified in finding the verdict which they did. It is a case with a question peculiarly for the jury, and the verdict is not so clearly against the weight of the testimony as to justify us in reversing the conclusion. The foregoing discussion answers the further contention that there was the barest scintilla of evidence to establish the plaintiff’s case.

The circuit judge in the course of his instructions charged the jury as follows:

If you reach that point, whether he is entitled to compensation for the loss of the arm and the pain and suffering that was incident to the injury that was in his arm, whether caused by this or something else, then, gentlemen of the jury, you should determine from the facts in the case whether that injury was due to the accident, or whether it was due to some other cause, and, in considering that, take into consideration all the testimony that was offered here. With regard to that, some expert testimony has been offered on both sides. One physician, the physician who treated Mr. Hull, who saw the hand, gives his opinion as to the cause of the conditions he saw. Another physician gives bis opinion with regard to the results that were found. All that testimony, gentlemen of the jury, is opinion testimony, and with regard to opinion testimony I will say this: That you may take into consideration, and give the opinion testimony that is offered on both sides, such weight as you think it is entitled to. But, after all, opinion testimony, gentlemen of the jury, is not the testimony of persons who testify as to facts, and it is entitled, therefore, only to such weight as you, in your sound judgment and discretion, think that it is entitled to. It is very proper in matters of this kind that require scientific "knowledge — that require more knowledge, as far as technical points are concerned, than you or I, being laymen, are expected to have — it is proper to bring in persons who, by reason of long study and knowledge in the technicalities involved, are competent to express their opinions upon the subject. In cases tried in this court we have nice questions in engineering, and nice questions in medicine, and sometimes nice questions in law, and you are entitled, on these technical questions and subjects, to the opinion of persons learned in these sciences; and in this case you have heard the opinions of the two physicians. One physician said in his judgment these injuries were due to an accident received in a street car, and the other physician says in his judgment and opinion the results that were obtained were due, or more likely due, to the injury received from the grasping of this thistle. Now, gentlemen of the jury, study over carefully, therefore, all that testimony, and be guided by the opinion that seems to you to be the most reasonable under all the facts and circumstances as they are offered in testimony in this case.”

Complaint is made of that portion of the charge stating, One physician said in his judgment these injuries were due to an accident received in a street car.” While this, is not strictly accurate, we think no possible harm could, have been done the defendant by the use of this language. The testimony of the witness Dr. Mulheron was that such an injury as was described might have resulted in the condition which he found, and he further testified as follows:

“Q. You diagnosed it as a result of an injury ?

“A. Yes, sir.

“Q. What do you mean, an injury from force or a blow or striking against something ?

“A. Well, from contact with something, a blow or otherwise.

“Q. A blow or falling against something ?

“Mr. Lyster: He said a blow or otherwise.

“Q. Could it have come from falling or striking against a hard substance ?

“A. Certainly.”

Without quoting from his testimony at further length, it is apparent 'that his theory of the cause of this injury was a blow. He qualified this by saying that it was possible that he might get blood poisoning from other accidents than from a blow, where there was a condition of irritation of the skin and the blood. As against this theory, was opposed that of the witness for the defendant. We think the jury could not have been misled by this instruction, as the testimony of Dr. Mulheron was substantially to the effect that in his judgment the injuries were due to an accident received from a blow; and, as there was no other testimony in the case' of a blow or injury to the hand, except the blow received through the fault of the defendant and the injury of the thistle, no injury could have been done in so stating the case.

A further criticism is made of the instruction relating to the value of opinion testimony, and a portion of the charge is quoted. The concluding portion is omittod from that quoted in the brief of counsel. We think this omitted portion very important. It reads as follows:

“Now, gentlemen of the jury, study over carefully, therefore, all that testimony, and be guided by the opinion that seems to you to be the most reasonable under all the facts and circumstances as they are offered in testimony in this case.”

We think this properly defined the duty of the jury.

Complaint is made of the argument of counsel, but, we think, without merit.

As to whether the injury to plaintiff’s hand was the proximate cause of his losing his arm, we think this was clearly a question of fact, and was left to the jury under proper instructions.

The judgment is affirmed.

Grant, Ostrander, Hooker, and Moore, JJ., concurred.


author: Brooke, J. Blair, C. J.

text:
    CONNER v. LAKE SHORE & MICHIGAN SOUTHERN RAILWAY CO.
    Negligence — Obvious Risks — Contributory Negligence.
    The plaintiff was injured by catching his foot under the pilot of a locomotive which he, with other employés, was turning on a turntable. He had previously complained to a superior agent of the defendant that the handles of the push bar were too near the pilot, and the agent had. assured him that the defect complained of should be remedied. By turning the engine in the opposite direction no danger would have been incurred, and the evidence tended to show that plaintiff knew and appreciated the advantage of the safer method of operation. Held, that it was his duty to select the safer method, and failure to do so bars his recovery. Blair, C. J., and Moore, J., holding that the question was one for the jury.
    Error to Lenawee; Chester, J.
    Submitted June 18, 1909.
    (Docket No. 107.)
    Decided December 10, 1909.
    Case by Thomas G. Conner against the Lake Shore & Michigan Southern Railway Company for personal injuries. A judgment for plaintiff is reviewed by defendant on writ of error.
    Reversed.

      Herbert B. Clark, for appellant.

      Smith, Baldwin & Alexander, for appellee.
   Brooke, J.

This is an action to recover damages for personal injuries sustained by the plaintiff on March 14, 1904, while assisting in turning an engine on defendant’s turntable located at Adrian. Plaintiff had been in defendant’s employ since 1888, first as a carpenter, then in the waterworks department, and finally, for the four years preceding his injury, as machinist, making general repairs on locomotives in the roundhouse. The turntable connected with the roundhouse had for years been difficult to operate because of the fact that it had been built to carry lighter engines than those in use on the defendant company’s lines at the time of the injury to plaintiff. This extra weight had a tendency to press downward the ends of the table, causing the small wheels under each end to rest heavily on the circular rail inside the pit and sometimes to bind. When this situation developed, and it appears to have done so every day and sometimes many times each day, it was the custom of the hostler and his helper to call to their aid other employés in and about the roundhouse, including plaintiff. He testifies that, during all the time he worked in the roundhouse, it was customary for him to help in turning engines when called upon; that he understood the mechanism of the table, and was as familiar as anybody with its operation and surroundings, including the approaching tracks. In the fall preceding, the table had been repaired and strengthened. In this process its surface was raised to a height of about four inches above the connecting rails leading to it. These connecting rails were thereupon raised up to the proper level; but no additional ballast was at that time placed between them. The depression caused by the lifting of the approaching tracks was soon filled, however, with snow thrown from the pit and with cinders from the engine smokestacks. So long as the weather remained cold, this operated as well as if it had been properly ballasted. In March, shortly before the plaintiff was injured, warm weather came on, causing the ice and snow to melt. This left in places between the rails depressions about four inches lower than the bottom of the rail. A push-bar was attached to either end of the table at a proper height for the men to push upon and long enough so that two, three, or even four, might reach it. In turning engine No. 50 (the one which caused the injury), it was necessary to so place it upon the table that the pilot extended about its entire length beyond the edge of the table and alongside the push-bar at that end of the table. This left but a narrow space between the pilot and the push-bar. In turning the engine in one direction, the men would stand between the push-bar and the projecting pilot, and, as the table revolved, the pilot would follow along behind the men in close proximity to their heels. In turning it in the other direction, the push-bar would be between the men and the pilot; the pilot swinging around in front of the pushing men.

The plaintiff described the accident as follows:

“ On this night in question, I was called out to help on this turntable. It was in the evening, after dark. It was a dark night. There wasn’t any lights around the turntable. They had engine 50 on the turntable. The trouble was they couldn’t turn the engine; but the causes for the trouble was sometimes one thing and sometimes another. The causes that time was they couldn’t turn the engine; but generally the trouble would be — that is, it would sometimes, in balancing these engines on the turntable, they — the condition that the turntable was left in. We would run an engine on the turntable and balance it, and by — as soon as we would have it balanced, why, the pilot would come down on top of the approaching rails to the turntable and stick, so that we couldn’t move it. It was rigid and fast. We would then be obliged to back the engine up far enough to raise the pilot above the rails so that it would swing out over, back it back on to the end, and throw the weight on one end, and then it was almost impossible for us to turn it at all. Sometimes we would and sometimes we wouldn’t, and sometimes we’d get them balanced so that they wouldn’t — the pilot would happen to be a little higher, and it wouldn’t hit the rails, then it would hit high places in the circular rail. The engine would bear down so heavy on the circle rail that it would tighten on that end and be impossible to turn it. There were various causes that— When I got out there that night, the pilot of the engine was headed towards the roundhouse. It was standing about northwest. The pilot was overreaching the turntable just as far as it could and keep the wheels on the table. The pilot would probably extend about 5, 5£ feet over these tracks on the outside. It would depend somewhat on the length of the pilot. There were various lengths of the pilot. That engine had a long pilot, I should judge 5 or 5£ feet long. If I recollect right, the engine was stuck so that you could (not) move it, and we moved it back to the south a ways to get a kind of run on it. It was necessary most of the time to get speed on it with what help we had to get around with it. We would get started and strike those rails, and we couldn’t get around with it, and it was necessary to put speed on. We would move it as fast as we could, and that would help it over these bad places. I had hold of this push-bar inside next to the turntable pit. We were on the northwest corner of the table. That is where we were pushing. I was standing in between the engine and the handle. I had hold of the handle. It was about 3\ feet, probably, above the top of the rails. Frank Beyer had hold of the bar withme. I don’t know for sure who were at the other push-bar, at the other end of the table; but I think there were four men at the end that I was on. There was one man with me; the other two being behind the pilot. I don’t remember who they were; that is, there was the hostler’s helper, if I remember right, and the other was a man that worked in the roundhouse that night. After we got the engine pushed back south, we started it toward the north again. We weren’t going very fast, maybe at the beginning as fast as a man would walk. Sometimes you would have to reach quite a ways to get a step, and sometimes you wouldn’t. Your steps were a good deal as you could get them.

“Q. Yes. Well, now, as you were going around to the east and pushing on that bar, just tell the jury what took place.

“A. Well, I — the pilot caught my foot, and—

“Q. Well, now, just how did that — now, how were you caught, and where were you caught ?

“A. Well, I was leaning forward at an angle, probably about 45, pushing on this bar, and stepping along over the rails, and the pilot was swinging right around close to the top of the rails, swinging right around after me, and I stepped over a rail onto the ground, and the pilot — I didn’t step away quick enough so but what the pilot — come right on top of my foot, my right foot, up above my heel a little ways, and as it was coming along I hung onto this bar. As the pilot was pushing me along, I hung onto this bar, . and I put my left foot right back of me onto the pilot, and as it turned a little bit it turned my foot so that it broke loose, and I pulled it out; that is, I pulled it as the engine kept a going. And I think we came to a stop after I got out; but I couldn’t say, as the engine stopped going, but I — when I was fast I called to the fellows to stop, hollered, ‘My foot is fast,’ and of course I was trying to get out, and X—

“Q. Well, now, was there space enough there at that time under that pilot so that it, — where did it catch your foot, if it did ?

“A. Well, it caught me right on the top of the heel there, right just up above my heel.

“Q. Well, now, where was that? Was that clear under the pilot ?

“A. Yes, sir; my foot was under the pilot, and it went • far enough so that it turned my foot over, turned my toe, straightened it out back, and, as it came around, it was a circle, and it released me a little, and X pulled, and pulled it out.

“Q. Yes. What was the condition there, where your foot — where you got caught in that place ?

“A. Well, there was — the condition was that there was a hole there sufficiently large enough to leave my foot go low enough so that the pilot would come over on top of it.

“Q. Well, now, the — previous to the time that you were injured, or the last time that you had helped turn an engine around on there, was there any such hole there ?

“A. I don’t understand what you mean.

“Q. X say, previous to the time that you were injured, or the last time before you — the time that you were injured, when you had helped to push an engine around there, was that hole there ?

“A. No.

“Q. Did that hole exist ?

“A. No, I didn’t know that any holes was there at that time, it was the — the last time that I was out there would be probably several days before. I don’t just remember when it Was, but there was no holes there the last time I was there.

“Q. Yes, and the last time that you had helped to move an engine around there previous to the time that you were injured, was there any such place as this hole - where you could get your foot caught under the pilot ?

“A. No, sir; there wasn’t.

“Q. And at the time that you were injured and caught there, did you have any knowledge that that hole existed there ?

“A. No, sir; I didn’t.”

On cross-examination witness testified that, in the absence of Mr. Duerr, he looked after things at the round house by request of the management. He also testified that the hole or depression between the rails in which his foot was at the time of the accident had not been observed by him before that time, and he had not complained to any one of the lack of ballast about the table, but that he had frequently complained to Mr. Hogue of the bad condition of the table, and upon one occasion, a week or two before his injury, he complained to Mr. Hogue about the location of the push-bars, that they came straight out (parallel with the tracks on the table), thereby bringing the men too close to the pilot. Upon the occasion of each complaint, plaintiff claims to have received general assurances from Mr. Hogue that “he would have this work attended to.”

The plaintiff claimed, and the learned circuit judge agreed with him, that he had a right to go to the jury as to whether or not the handles or push-bars were put on at the proper angle, and, if they were not, then whether complaint was made to the proper officer, and whether a promise to repair was given and relied upon by plaintiff in continuing to use the appliance. The defendant requested the court to direct a verdict in its favor upon the ground that it was conceded that the turntable would turn in either direction with equal facility, and that the plaintiff had chosen the dangerous, rather than the safe, method of operation. The court refused to direct a verdict for defendant, but charged the jury upon this point as follows:

“You are also instructed that if there were two meth- ■ ods, or two ways, of using this turntable in question, or two ways in which it could be turned, one of which was safe and one of which was dangerous, both of which were known to plaintiff, then, under those circumstances, it was the duty of the plaintiff to select the safer method, and if he did not do so he cannot recover for the injury sustained upon this claimed ground of negligence.”

Upon the examination of Henry Duerr, a witness produced by the defendant, the following occurred:

“ By Mr. Clark, counsel for defendant:

Q. Now you may state whether or not that table would turn either way.

“A. Certainly it will.

“Q. Did you sometimes turn engines one' way and sometimes the other ?

“A. Yes, sir.

Mr: Smith (counsel for plaintiff): Just half a second, Mr. Clark. I, of course, haven’t been here. Is there a claim on our part that it couldn’t be done both ways ?

“Mr. Clark: No, I guess not.

The Court: No.

Mr. Clark: I haven’t so understood it. Mr. Conner testified that it could.

“Mr. Smith: Well, I was wondering why you were proving it.

‘‘ The Court: Well, it is possibly conceded here that this table would go either way.

“ Mr. Clark: Well, is it so conceded?

Mr. Baldwin (also counsel for plaintiff): Why, it would go either way, of course, with sufficient help. That is the only question.

“Mr. Smith: Well, was there any difference in the power that it took to turn it one way or another ?

Mr. Baldwin: No.

“Mr. Smith: Like a street car, go just as well one way as the other, as I understood it; but that is why I inquired.”

We have, then, this clear and unequivocal admission that the table turned with equal facility in either direction. Is it equally clear that to turn it in one direction involved the taking of risk, while to turn it in the other there was no such risk ? We think it is. It is entirely obvious that, had the engine been moved in the opposite direction, the pilot would have been in front of the plaintiff and his companions, and could not have caused his injury. The plaintiff himself, too, seems to have recognized and appreciated the danger, for he made complaint about the position of the push-bars, and testifies that others of the men had complained to him that the following pilot was too close. Upon the authority of Davey v. Hall & Munson Co., 122 Mich. 206 (80 N. W. 1082), and cases there cited, the defendant was entitled to the direction of a verdict in its favor, and the judgment must be reversed upon that ground, provided the record is in such shape as to warrant it.

It is urged on the part of the plaintiff that the certificate of the circuit judge to the bill of exceptions does not comply with Circuit Court Rule 47ci, in that it fails to state that the bill contains all or the substance of all the testimony. A careful examination of the record seems to bring it within the rule laid down in Godkin v. Obenauer, 113 Mich. 94 (71 N. W. 456), and cases there cited. Particular attention is directed to Ironwood Store Co. v. Harrison, 75 Mich. 197 (42 N. W. 808), where the record seems to have been in all essential points identical with the one under consideration.

Judgment reversed, and a new trial ordered.

Grant and Mo Alv ay, JJ., concurred with Brooke, J.

Blair, C. J.

I concur in the result. I think, however, that the facts in the record present a case' for the jury if presented upon the proper theory.

Moore, J., concurred with Blair, C. J.