author: Moore, O. J.

text:
    FERGUSON v. LAKE SHORE & MICHIGAN SOUTHERN RAILWAY CO.
    Railroads — Master and Servant — Negligence — Statutes — Fellow-Servant.
    A mason’s tender, employed by a railroad corporation to assist in constructing an addition to its roundhouse, working on a scaffold inside the uncompleted wall, was entitled to recover for injuries sustained because of the negligence of a fellow-servant in constructing a defective scaffolding: plaintiff was within the provisions of Act No. 104, Pub. Acts 1909, and did not come within the exception created by section seven of the act, providing that it should not apply to employés working in shops or offices.
    Error to Hillsdale; Chester, J.
    Submitted October 16, 1911.
    ( Docket No. 31.)
    Decided March 29, 1912.
    Case by Sharon Ferguson against the Lake Shore & Michigan Southern Railway Company for personal injuries. Judgment for plaintiff. Defendant brings error.
    Affirmed.

      Herbert B. Clark, for appellant.

      Fitzpatrick & Grommon, for appellee.
   Moore, O. J.

This is an action for damages for personal injuries, brought by the plaintiff against the defendant in the circuit court for the county of Hillsdale. Plaintiff recovered a judgment for $738 and costs, and the case is brought to this court by the defendant on a writ of error.

The facts are not in dispute, but are contained in a written stipulation, agreed upon by counsel, which reads in part as follows:

“During the month of June, 1910, defendant was engaged in the construction of an addition or extension to its roundhouse in the city of Hillsdale, Mich. In the doing of this work, it employed certain carpenters and masons; plaintiff, a mason’s tender, being one of the number. * * * The walls of the extension were being constructed of brick, and the north wall, extending easterly and westerly, had been completed to the height of the tops of the windows. Just south of this wall, and inside of the addition that was being constructed, was a scaffold, seven or eight feet in height and about four feet wide, extending the entire length thereof. * * *
“On June 21,1910, in the afternoon, plaintiff and three other men were carrying a window cap up onto the scaffold to be placed in position, had placed the window cap upon the higher scaffold from the lower scaffold, and were proceeding westerly with it on the higher scaffold, when one of the putlogs, because of a knot in it, broke, thereby precipitating plaintiff to the ground. As he fell, the scaffold came down upon him, together with the brick, mortar board, and other materials on the scaffold, thereby causing the injuries complained of. Plaintiff had nothing to do with the construction of the scaffold in question. It is conceded that the addition in question was being built on the north end of the roundhouse and extended the whole length of it, a distance of about 73 feet, and was to consist of three rooms, an office, an oilroom and supply room, and a machine shop, and that the window cap that was being carried at the time of the accident was to be placed over a window in what was to be the oil-house, and that the accident happened in that part of the addition. The roundhouse in question is located on the south side of the tracks, and about 40 or 50 rods west of the depot, and contains six stalls for the storage of engines, three of which stalls on the southwest corner had also been extended on the westerly side a distance of about 16 feet.
“It is conceded, for the purposes of this record, that plaintiff was injured in the manner complained of, and that the negligence was that of a fellow-servant in failing to select a suitable putlog to put into the scaffold. It is conceded that there was no negligence on the part of plaintiff contributing to his injury. It is also conceded, for the purpose of this record, that defendant furnished proper and suitable materials for the construction of the scaffold, and employed competent servants to construct it. It is also conceded by the plaintiff that no recovery could be had in this case, except for Act No. 104, Pub. Acts 1909, doing away with the fellow-servant rule, which has been in force in this State, as to certain employes of railroads. Plaintiff claims the right to recover by reason of that act, and concedes that, in the absence of the act, he could not recover; while defendant claims that plaintiff was working in a ‘shop,’ within the meaning of the act, thus coming within the exception. The act was not pleaded by either party; but no advantage is sought to be taken of that fact by either. It is conceded that the verdict was not excessive for the injuries sustained. The facts being conceded, no error is assigned upon the rulings of the court as to the admission or rejection of evidence; the only assignment being made upon the refusal of the court to direct a verdict for the defendant, on the ground that the fellow-servant rule applied, and plaintiff was working in a ‘ shop,’ within the meaning of the exception in Act No. 104, Pub. Acts 1909.”

It will be observed that the one question for our consideration is whether the fellow-servant rule applies.

The provisions of Act No. 104, Pub. Acts 1909, material to this case, read as follows:

“Section 1. Every common carrier railroad company in this State shall be liable to any of its employés, or, in case of his death, to his personal representative for the benefit of his widow and children, if any; if none, then for his parents; if none, then for his next of kin, for all damages which may result from the negligence of any such railroad company or from the negligence of any of its officers, agents or employés, or by reason of any defect or insufficiency due to the negligence of any such common carrier railroad company in its cars, engines, appliances, machinery, track, roadbed, works, boats, wharves, coal docks, or other equipment.”
“Sec. 7. The provisions of this act shall not apply to employés working in shops or offices.”

It is the claim of defendant that plaintiff comes within the provision of section 7; while plaintiff claims this section does not apply. The statute is comparatively new, .and has not been construed by this court.

We have examined with care the cases cited by counsel. No one of them construes a statute precisely like ours. The case nearest in point is that of Louisville, etc., R. Co. v. Melton, 218 U. S. 36 (30 Sup. Ct. 676). In the opinion filed in this case appears the following:

“The court below held that the Supreme Court of Indiana had construed the statute as applicable both to persons and corporations operating railroads. It further held that the statute embraced the case in hand, because Melton came within the category of persons injured in the operation of a railroad, as ‘ the construction of a coal tipple is * * * essential to the operation of a railroad.’ As thus construed, the repugnancy of the statute to the equal protection clause of the Constitution of the United States was considered. It was decided that, for the purpose of abrogating or modifying the common-law doctrine of fellow-servant, it was competent for the lawmaking power of a State, without offending against the equal protection clause, to classify railroad employés because of the hazard attached to their vocation; and that a statute doing this need not be confined to employés who were engaged in and about the mere movement of trains, but could also validly include other employés doing work essential to be done to enable the carrying on of railroad operations. Thus, referring to the alleged distinction between railroad operatives engaged in train movement and those who were not, the court said:
“ ‘We are unable to see the force of this distinction. A railroad cannot be run without bridges; bridges cannot be built without oarpenters. The work of a bridge carpenter on a railroad is, perhaps, no less perilous than the work of an operative on one of its trains. Coal tipples are no less essential to the operation of a railroad than bridges, because the engines cannot be operated without coal. The construction of a coal tipple is therefore essential to the operating of a railroad. As has been well said, the legislature cannot well provide for all subjects in one act. Legislation must necessarily be done in detail, and an act regulating railroads violates no constitutional provision, because it is made to apply only to railroads. Indianapolis, etc., R. Co. v. Kane [169 Ind. 25], 80 N. E. 841 [81 N. E. 721] ; Schoolcrafts v. Railroad Co., 92 Ky. 233 [17 S. W. 587, 14 L. R. A. 579] ; Chicago, etc., R. Co. v. Stahley, 62 Fed. 363 [11 C. C. A. 88]; Callahan v. Railroad Co., 170 Mo. 473 [71 S. W. 208, 60 L. R. A. 249, 94 Am. St. Rep. 746]; Id. 194 U. S. 628 [24 Sup. Ct. 857] ; Railroad Co. v. Ivy, 73 Ga. 504.5
“The railway company asked a rehearing for the sole purpose of a reconsideration of what was referred to as the very important Federal question involved, viz., ‘the unconstitutionality of the Indiana statute, as applied to the facts of this case.’ ”

The court affirmed the judgment below. The language quoted by Justice White from the opinion in the court below appeals to us. The plaintiff was aiding in the construction of an addition to the roundhouse used for the storage of engines. He was hurt while carrying a window cap to be placed over a window in the oil room, which presumably is used for storing the oil used in the engines housed in the roundhouse while being prepared to be used in drawing trains.

We think the plaintiff comes within the provisions of section 1, and is not within the exceptions of section 7, of the act. See, also, Indianapolis Street R. Co. v. Kane, 169 Ind. 25 (80 N. E. 841, 81 N. E. 721); Chicago, etc., R. Co. v. Stahley, 62 Fed. 363, 11 C. C. A. 88; Swoboda v. Railroad Co. 87 Neb. 200 (127 N. W. 215 138 Am. St. Rep. 483).

Judgment is affirmed.

Steers, McAlvay, Brooke, Blair, Stone, Ostrander, and Bird, JJ., concurred.


source: Caselaw Access Project

author: McAlvay, J. Blair, J.

license: Public Domain

text:
    SCOTT v. BOYNE CITY, GAYLORD & ALPENA RAILROAD CO.
    Master and Servant — Railroads — Negligence — Brakeman — Defective Switch.
    Where plaintiff claimed that decedent, a brakeman, was killed by catching his foot in a defective blocking of defendant’s switch, and was run over by its freight train that he was trying to board, but the evidence left it a matter of conjecture whether he caught his foot in the blocking or in the spaces between the ties, which were cleared out and remained unballasted, leaving numerous places where his foot might have caught, the question of defendant’s negligence in failing to provide sufficient blocking should not have been submitted to the jury. Moore, C. J., and Blair and Bird JJ., dissenting.
    Error to Otsego; Sharpe, J.
    Submitted February 14, 1911.
    (Docket No. 166.)
    Decided March 29,1912.
    Rehearing denied June 1, 1912.
    Case by Samuel Scott, administrator of the estate of Frank D. Gibbs, deceased, against the Boyne City, Gay-lord & Alpena Railroad Company for the negligent killing of plaintiff’s decedent. Judgment for plaintiff. Defendant brings error.
    Reversed.

      Harris & Ruegsegger (Rollin H. Person, of counsel), for appellant.

      De Vere Hall, for appellee.

       Liability of railroad company for injuries to servants owing to want of blocking at switches, see note in 16 L. R. A. (N. S.) 715.

   McAlvay, J.

Plaintiff, as administrator, brought suit for damages against defendant for negligence in causing the death of Frank D. Gibbs, who at the time of his death was employed by defendant as a brakeman upon a logging train operated by it upon its railroad. This railroad is largely engaged in the transportation and delivery of saw-logs and other forest products for the owners of the same, who operate mills where such products are manufactured at Boyne City. The logs from the woods are transported on what are called “ Russell ” cars, which are cars consisting of two sets of trucks connected by timbers called “leaders,” each seven by eleven inches, across which are short heavy timbers called “bunks,” to support the logs. At each end of these cars the leaders extend beyond the bunks three or four feet, and to these the drawbars and car couplings are attached. Across the ends of the leaders is a timber called the “ brake hanger beam,” from which the brake beam is hung by iron rods. The brake beam, from six to eight inches square, which carries the brakes, hangs down back of the wheels, and extends clear across from outside to outside of the wheels, with the lower side less than six inches from the tops of the rails.

Plaintiff’s decedent was employed by defendant as a brakeman during the spring of 1909, and continued such work until the accident on June 2d following. He was an experienced brakeman, well acquainted with the manner in which these logging trains were handled, and the manner in which the cars were switched in at the different sidings.

Defendant’s road enters Boyne City from the east, and in the eastern part of the city there is a switch, known as the “cooperage switch,” leading into a sawmill known as “Mill Three,” and also to the plant of the Elm Cooperage Company. There is a downgrade towards the west on the main line where this switch is located, and heavy trains from the east intending to back in on this switch, to get speed enough, must run past the switch some distance on the upgrade east of it. A telephone system is used by defendant for dispatching its trains.

On the day of the accident, a logging train, consisting of 19 of these cars, loaded with sawlogs, was running towards Boyne City from the east. The crew consisted of the conductor, engineer, fireman, and brakeman Cibbs, plaintiff’s decedent. At a telephone station about 10 miles east of Boyne City, the conductor reported, and received orders to set out certain cars of this train at the unloading place on the siding beyond this switch. He communicated this order to Brakeman Gibbs, who remained on the end of the train, and then the conductor walked forward to the engine to give the engineer the order, and rode on the engine until he came to this switch, where he got off on the south side to throw the switch for the train to go in on the siding. When the end of the train came to the switch, Brakeman Gibbs also dropped off, saying, as he saw the conductor, that he did not see him get off. The conductor threw the switch and started to walk in on the siding towards the place where the cars were to be left, so as to be in position to signal the brakeman and control the movement of the train when it came in. This siding leaves the main line on the north side of the track and, curving northeasterly, runs so that some sheds obstruct the view from the engine to the place where cars are to be left, making it necessary to have a brakeman about the middle of the train to receive the signals from the conductor and give them to those in charge of the engine. Plaintiff’s decedent waited for the train to come back, standing on the north side of the track not far from the switch. The exact place is not fixed. It is evident that his purpose was to get onto the train while in motion in order to get into position to take signals from the conductor. While standing there he was seen by two persons. One, a girl about 12 years old, saw him standing opposite the switch on the north side of the track signaling the train while it was backing up, and saw no more after the train cut off her view. She was on the back porch of her father’s house on the south side of the railroad about 20 rods away. The other person was a man named Betterly, who testified that from the porch of his house about 16 rods south from the track, across a street and some vacant lots on which grass and weeds grew a foot or 18 inches high, he saw Gibbs standing on the north side of the track outside of the ties east of the switch, but could not give the exact place. He says :

Just at the right of the switch, between the switch and the blocking. When the middle of the train which was backing from the west came to him, he undertook to get on. He went to step in there to get on between the cars. As near as I can see, he took hold of this brake hanger beam and he straightened right out.”

He could not see decedent’s feet from where he was, but saw him disappear. He further says:

“ I didn’t know that he had got caught. I didn’t know but what he had caught on. Didn’t occur to me that anything had happened to him until after the train had got over him and I seen him there.”

This is the substance of all the testimony of the witnesses of what they saw just prior to and at the time of the accident.

The switch is what is called a “split switch.” It is a standard switch in use by railroads. Such a switch is constructed with movable points, which are both inside and between the rails of the main line. The movable ends, of these points are held in position by iron bars called a “bridle.” In this case the west ends of the points, being the sharp points, were bolted to the first switch bar attached to the switch stand, and the second bridle bar, about two feet east, was also bolted to the points. These points are sections of steel rails which are beveled on the side next the lead rail to a sharp point, and at this switch with joints at the east ends by which the north point is attached to the north rail of the main line, and the south point to the south rail of the siding track. When this switch is so operated as to throw the points north, it is set for the main line; when thrown south, as on this occasion, the switch is set for this siding upon which this train was backing. There is a target on the switch stand which informs the engineer for which track the switch is set. When this switch was set for this siding, it was thrown south, and the north point was inches from the inside of the north rail of the main track, and the south point was close against the inside of the south rail. In split switches the throw rails of necessity cannot be blocked, because the points must be brought close against the lead rail on whichever side it is thrown. Such switches are only blocked at the places between the siding rails and the main line where the movable throw rails are attached. At this point on the north side of the main track there was a block three feet long driven in between the diverging rails from the east as far as possible up to the east end of that switch point. This is the only blocking used in split switches.

After the disappearance of Gibbs from the view of witness Betterly, the train, which was going at the rate of .five miles an hour, continued to back in on the siding, and when the body of Gibbs was discovered it stopped and blew two whistles for the conductor. The body was cut in two, square across at about the hips. The trunk of the body was lying north of the north rail of the siding at right angles with the north rail of the main track. It was 15 feet east of the blocking above described, and 30 feet east of the switch. The lower part of the body was lying nearly at right angles with the rails about the middle of the main line track 6 feet farther east than the trunk. The left shoe was found in the middle of the main track not far east from the blocking. The shoe string was broken and but little of it left. The “ upper ” of the shoe on the left side near the back of the heel was started from the heel, upon which were marks evidently caused by pressure and the stiffening above the heel was bent over to the right. There was grease on the opposite side of it. Otherwise the shoe was not injured. The doctor who was present before the body was moved, on direct examination by plaintiff, among other things, testified relative to the condition of the left foot, as follows:

“ There was a slight contusion on the left foot. There was no crushing. There was a slight bruising, not much discoloration, just a slight bruising on the outer surface of the foot from the external malleolus (ankle bone) extending towards the small toe.
icQ, Well, you know what a oar wheel is ?
“A. Yes. .
“Q. Had anything run over the foot so as to crush it there, or was it merely pressed and bruised ?
“A. I would never consider, in my experience with railroad accidents, that a car wheel could have run over it, because it would have amputated it entirely with a load of logs on.”

The record shows that brakemen were in the habit of getting on these trains when in motion by stepping onto the brake beam and taking hold of the brake hanger beam to get up on the leaders. The record shows without dispute that split switches are considered dangerous for brakemen to go over.

During the trial, when defendant was undertaking to show that the movable throw rails of the split switch could not be blocked, the following colloquy took place, after a remark by the court:

“ Counsel for Defendant: That may be true, your honor, but I want to get in the record whether or not a block could be put in there the whole distance.
By the Court: Counsel on the other side conceded that it could not be. * * *
“By Mr. Hall: Well, we plant our case upon the fact that the foot was caught at the block upon the north side of the track. * * * If it didn’t catch there, this plaintiff doesn’t ask for a verdict.”

The case proceeded upon that theory and claim. Testimony was introduced tending to show that the blocking referred to was in such a condition, on account of being slivered off at the west end, that a foot could slip in between the blocking and the ball of the rail and be held fast. At the conclusion of the evidence, defendant requested a verdict to be directed in its favor, on the ground that the proofs do not show that decedent was injured by catching his foot in this blocking, and that it is a pure conjecture how the accident occurred, and also that decedent was guilty of contributory negligence. The motion was denied and exceptions taken. The case was submitted to. the jury under the charge of the court. A verdict was returned against defendant. A motion for a new trial based upon the same grounds as the motion for a directed verdict, and also for refusing certain requests to charge, was made and denied, to which denial defendant excepted.

The principal errors assigned before this court relate to the questions first raised upon defendant’s motion for a directed verdict, and it will not be necessary to consider any others.

It is insisted by appellant that the exact cause of the accident was not proven, and- the jury was allowed to speculate and guess at it. The motion on the part of the defendant for an instructed verdict was urged upon the ground that the proofs did not show that the decedent’s foot was caught in the blocking; that from such proofs it was a pure matter of conjecture as to how the accident occurred. The plaintiff urges the contrary of this proposition. The dispute, apparently, is not what the law is upon the question involved, but upon what the proofs presented by this record show.

Up to the time that plaintiff’s decedent undertook to get on the moving train, there does not appear to be any dispute as to what had occurred. It will therefore be unnecessary to repeat the facts up to that point. The exact place where he stood at this time is not definitely fixed. Betterly and the girl Biskie are the only witnesses who saw decedent standing near the switch on the north side of the track. The girl attempts to give no definite place. Betterly’s testimony places decedent near to and at the right of the switch between the switch points and the defective blocking. He says he saw him swing in west of this blocking, and his testimony indicates that he thought he was about half way between the switch and the blocking. He continually modifies his statements by saying that he cannot tell exactly where he stood. It is without dispute that the distance between the switch and blocking was about 15 feet, and also that between these two points the earth under the rails and between the ties was all cleared out so that the ties there were as if laid on the ground with the rails fastened on top of them, which condition was necessary to safely operate a split switch. It is also undisputed that for this distance the switch point on that side of the track was thrown to the south, leaving between such point and the north rail of the siding an opening 5% inches wide at the west end of the movable point, and the 3£ inches at its east end. The undisputed facts show that between the west end of this switch point and the claimed defective blocking there were 21 places into which the foot of a person attempting to board a train at that place might be caught as in a trap, not counting the defective blocking where plaintiff insists decedent’s foot was caught. The only testimony in the case as to where decedent stood when he attempted to board the moving train is that of the witness Betterly, who placed him half way between the switch stand and the defective blocking. In that distance, at some unknown point of which he crossed the rail, there were 12 places exclusive of the defective blocking into which his foot. could have been caught. The conclusion from this record is forced upon us that the evidence did not warrant the court in refusing to grant defendant’s motion for a directed verdict. The cause of the accident was not proven, and the jury were allowed to speculate and guess as to such cause.

Plaintiff has rested his case upon the claim that decedent caught his foot at the defective blocking. If the foot was caught at any place, which we do not determine, it is from this evidence as probable that it was caught before he reached the defective blocking, and while he was passing over this gridiron of holes, the presence of which was not only not negligence, but a necessity in case of a split switch.

The law is well settled that a case should not be submitted to the jury where a verdict must rest upon a conjecture or guess. Fuller v. Railroad Co., 141 Mich. 66 (104 N. W. 414); Powers v. Railroad Co., 143 Mich. 379 (106 N. W. 1117).

Plaintiff urges that the finding of decedent’s shoe in the. middle of the track opposite the defective blocking, and the mark on it as if crushed by the flange of a wheel, and grease upon the opposite side of it, tended to show that it was caught at the blocking. The foot was not crushed, only bruised at the left ankle bone. If the shoe was caught at the blocking and crushed by the car wheel, the foot was not then in the shoe. The evidence shows that it would have been crushed. If the foot was caught at any of the other places, the shoe might have been marked and the foot not crushed, for the reason that there would be nothing like solid blocking under the foot to keep it up against a crushing wheel. The other places were all open to the bottom of the ties.

From the foregoing it clearly appears how and where the injury occurred is a matter of pure conjecture. To further illustrate, the record contains no direct evidence that decedent came to his death by reason of catching his foot in any of the numerous possible ways suggested. His body was found cut in two by the car wheel, square across at the hips; the head and trunk lying outside the north rail, and the lower portion inside, both at right angles with the rail. From this it might be reasonably inferred, not that his foot was caught and he was dragged from his hold on the brake hanger, but that his feet on the brake beam slipped to the south and his body fell square across the north rail. It would be' a reasonable inference that the body stretched lengthwise with the rail, if caught and crushed by the wheel, could not have been cut square across at the middle.

The instant case is distinguishable from Parker v. Union Station Ass’n, 155 Mich. 72 (118 N. W. 733). In that case no one saw the accident, and defendant claimed that the proximate cause of the accident was entirely conjectural. A brief quotation from the opinion will make apparent the point upon which the case turned:

“ Plaintiff’s theory was that, while engaged in performing his duties as switchman, decedent’s foot was caught in a guard rail by reason of defective blocking, and that he was run over before he could extricate it. Defendants contend that the proof conclusively shows that just prior to his injury he was riding on the footboard of the locomotive, and that it is as reasonable to suppose that, in changing from one side of the engine to the other — of which there was some circumstantial evidence — he fell off from the footboard, and was run over, as .that he stepped into the dangerous and defective place, and therefore that the cause of the accident is conjectural. Assuming that this was all of the testimony, we are of the opinion that this would be true; but it is not all. There was testimony that, when decedent was found, his foot was firmly wedged in the space between the guard rail and the main rail, the sole and heel pressed down flat.”

In answer to defendants’ contention “that it was as reasonable to suppose that the flange of the wheel pressed his foot in there, as that he stepped into it and was caught before being run over,” the court quotes at great length from the testimony relative to the position and condition in which decedent’s foot was found, after which the court says:

“ While it is true that proof must establish a probability, and where the testimony can be said to be as consistent with a theory that relieves a defendant from liability for accident, as it is with one involving his liability, there can be no recovery, we have often held that circumstances shown may justify inferences which bring liability within the realm of probability, rather than leaving it a matter of conjecture merely.”

No new rule of law was declared in that case. It was held that the evidence warranted its submission to the jury because, in the opinion of the court, legitimate inferences might be drawn from it which would bring liability within the realm of probability, rather than leaving it a matter of conjecture merely. No such legitimate inferences can be drawn from the evidence in the instant case.

The instant case is also distinguishable from the case of Erie Railroad Co. v. White, 187 Fed. 556, 109 C. C. A. 322, a recent Federal case, in which Judge Denison wrote the opinion of the court. The negligence charged was a deficiently blocked guard rail. One shoe was found near the guard rail, and its broken lacing indicated that the foot had been torn out while the shoe was held fast. There is nothing to indicate that there was any evidence tending to show that there was any other place except the one defective blocking where decedent’s foot might have become caught. The court says, “the action was brought and the judgment rendered upon the theory that the blocking was deficient, and decedent’s foot was caught in it while walking between the cars endeavoring to open the coupling,” and held that under the evidence the case was properly submitted to the jury.

Our conclusion is that the trial court was in error in denying the motion of defendant for an instructed verdict upon the ground discussed

The judgment of the circuit court is reversed, and a new trial ordered.

Steers, Brooke, Stone, and Ostrander, JJ., concurred with McAlvay, J.

Blair, J.

(dissenting). I am unable to concur in the opinion of Justice McAlvay that the cause of the accident was purely speculative. This is not a case for the application of that doctrine but for the application of the rule that, “where different inferences maybe drawn from the same facts, it is the province of the jury to draw such inferences, and not of the court.” Brunelle v. Ruell, 140 Mich. 256 (103 N. W. 602).

According to the measurements made by Mr. Van Auken:

From south bar to west end of block I measured with a square 13 feet and 8-|- inches. Width between rails, west end of block, 3f inches. West end of block is on seventh tie from the switch beginning easterly, or long switch tie, being No. 1. Ties stick out north side of rail, counting from the switch east No. 1 tie. That is the first tie from the long tie where the bar is, counting toward the block. The first tie, No. 1, stuck out 15£ inches from the rail; No. 2, 16 inches; No. 3, 13£ inches; No. 4, 15£ inches; No. 5, 15 inches; No. 6, 14& inches; No. 7, 14f inches. That is as far as I counted them. That brought you to the block. Distance from the bottom of the rail to the ground, measuring on the north side of the rail between the ties, between No. 1 and No. 2, 6 inches; between No. 2 and No. 3, 5£ inches; between No. 3 and No. 4, 4 inches; between Nos. 4 and 5, 4£ inches; between Nos. 5 and 6, 21-inches; between Nos. 6 and 7 it was level. This level part was opposite the block. * * * I don’t remember measuring how much the blocking was below the lower ball of the rail. I put my foot on or in there. I have done it on quite a good many occasions. I did on the first day I was there and on the second, and the conditions were the same each time. I placed myself in a position facing the east and stepped as though I was stepping hastily and aimed my foot at the same time to go in that place and springing forward, and my foot would catch each time between the blocking and the rail.”

According to the testimony of Mr. Betterly and his location of the place where Gibbs stood by the red cross marked by him on plaintiff’s Exhibit 1, he stood about opposite the fifth tie from the switch bar. The train was backing past him, and, naturally, he would step in moving with the train. When he stepped in he caught hold of the brake hanger beam, and at once his body straightened out as though his foot was held. Betterly illustrated to the jury the position Gibbs’ body assumed, as nearly as he could.

The coroner testified:

“ The left shoe was about opposite that block and between the rails. No part of his body or clothing was between this blocking and the switch stand. The nearest object to the blocking was his left shoe. The shoe was between the rails of the main line and about opposite of the block. * * * The heel of the left shoe was bruised. The left shoe had been torn off the foot. The foot was bruised from being twisted outward from the external malleolus to the little toe, blueish color. * * *
“Q. And you notice the shoe lace there is almost en—
“A. That appeared to be cut.
"Q. What is that?
“A. They were all severed.
“Q. At that time?
“Ü. At that time.
“Q. Well, will you say there was just about as much shoe string left when you saw it as appears here?
“A. It looks like that. * * * The legs were about 36 feet from the switch — I mean the crossbar connecting the rails. The body was about 30 feet from the switch, and the shoe about 14 feet. The block was 14 feet and the shoe was right opposite the block. The shoe lay about opposite the block between the rails of the main line and the switch. * * * When I speak of the shoe being torn off, I mean it was off, and the shoe was bruised, and that is why the entry was made. The laces appeared just as they are in that shoe now. They appeared to be either torn or cut.”

The only reasonable inference from Betterly’s testimony is that decedent’s foot was caught and held between the north side track rail and the north throw rail. At least, the jury were warranted in drawing such ah inference from his testimony. The important question then presented was: Where was the foot caught ? The defendant’s witness Randall, the engineer of the train in question, testified:

“ The danger of getting the feet caught is where the guard rails are or cross-rails. Where a person has to step over the rail running in there to step on a car, if you have to step over a switch rail, there is a chance there of obstruction. There isn’t very much danger of getting caught between the ties, although there is a chance for a person to stumble there. * * * If a man went in between those cars to get on the leaders between those Russell cars, he would choose a clear place — a clear footing — because he would have to make a few steps in order to get on.”

Betterly’s testimony eliminates stumbling from the case, and Randall’s testimony would warrant the jury in finding that it was not probable that his foot was caught between the ties. In fact, the whole case indicates that his foot was caught between the fixed and the movable rail. Gibbs stood some four or five feet west of the west end of the block; his shoe lay about opposite the east end of the block, which was three feet long. Somewhere within this seven or eight feet the foot was caught. Unless it was caught within the four or five feet west of the west end of the block, then it was caught over the block, where Van Auken’s experiments clearly demonstrated it would be likely to be caught if Gibbs stepped there. In stepping-in he would step with the moving train. According to Randall, a man would take two or three steps. The train was moving four or five miles an hour, and a step or two would take Gibbs to the block. The shoe was a conclusive witness that he had not passed the block before he was caught. The shoe and the foot were potent witnesses that the foot was caught; that Gibbs tore his foot loose from the- shoe, bursting the strings, before the following wheel caught his foot; and that the shoe was then forced in about two feet towards the center of the track. The train was moving east. The flanges of the wheels on the north side were against the inside of the north fixed rail. The blocking extended to the south some three inches. The drag of the train, the efforts of Gibbs to release his foot, the flange of the wheel crowding his foot to the south, when the foot came loose, threw his feet to the south, and the flange pushed the shoe in the same direction. The trap was set to catch a man’s foot. Van Auken demonstrated that the trap was in good working order. The man’s foot had the appearance of having been caught in the trap. His shoe bore plain marks of having been caught in the trap, and, furthermore, the shoe lay beside the trap. It appears to me to be a very reasonable inference from the facts that the foot was caught in the trap. As said at the beginning, this is not a matter of guesswork or speculation at all, but merely the ordinary case upon circumstantial evidence of drawing reasonable inferences from proven facts.

In my opinion, the inference which the jury drew is by far the most reasonable and probable inference which the facts will admit of, and the jury deal with probabilities and not with certainties.

The evidence was in conflict as to whether the deceased was negligent in trying to mount the car at the particular place chosen by him, and the evidence warrants the conclusion that except for the negligence of the defendant he would have safely hoarded the train. I think, therefore, that the court did not err in refusing to instruct a verdict on the ground of contributory negligence.

The other questions raised do not seem to me to present prejudicial error, and in my opinion the judgment should be affirmed.

Moore O. J.. and Bird, J., concurred with Blair, J.


author: Moore, C. J.

text:
    MINKKINEN v. QUINCY MINING CO.
    1. New Trial — Appeal and Error — Motion.
    After settling a bill of exceptions, and after issuance of a writ of error from the Supreme Court, the circuit court has no jurisdiction to grant a new trial.
    2. Appeal and Error — Saving Questions for Review.
    The point that there was a variance between declaration and proofs will not be determined on appeal if it was not presented to the trial court.
    3. Master and Servant — Mines and Minino — Assumption of Risk — Contributory Negligence.
    Evidence examined and held, to present questions of fact whether plaintiff assumed the risk of rock falling from a hanging wall under which he was working, or whether he was guilty of negligence barring his recovery.

      Error to Houghton; Streeter, J.
    Submitted December 14, 1911.
    (Docket No. 80.)
    Decided March 29, 1912.
    Rehearing denied June 1,1912.
    Case by Nick Minkkinen against the Quincy Mining Company for personal injuries. Judgment for plaintiff. Defendant brings error.
    Affirmed.

      Hanchette & Lawton, for appellant.

      O’Brien & Le Gfendre, for appellee.
   Moore, C. J.

This is a personal injury case. The plaintiff was a trammer, working for defendant company, and was injured by some rock falling upon him while he was scratching down ore upon a soller at the foot of the stope, in order to fill his car. At the close of the testimony on the part of the plaintiff, and again at the close of all the testimony, the defendant moved for a directed verdict. These motions were overruled, and the case was submitted to the jury, which returned a verdict in favor of the plaintiff. Judgment was entered in favor of the plaintiff. The case is brought here by writ of error. The accompanying cut will help to understand the situation.

The first sketch shows the stope with its hanging wall, its foot wall, the stulls in place to receive the ore as it is broken down, the platform called a soller, upon which the ore rests when it is let through the opening, shown in the second sketch, from which platform it is loaded upon the car standing upon the rails, shown in the first sketch and opposite the soller or platform. The stulls, the opening between them, and the platform shown in the second sketch are what the witnesses call a “mill.”

The record is to the effect that the vein is taken out between the foot wall and the hanging wall and the hanging wall which is left is a permanent roof, which is supposed to be and is usually kept reasonably safe by barring down any loose pieces of rock which may be loosened by blasting or otherwise. The hanging wall is not blasted. The trammers do not attempt to tram it out. It is the custom for men, known as barmen, or for miners, to take down whatever is loose in the hanging wall. The work of stoping out a piece of ground may last for months.

Sketch of portion of stope on 59th level south of No. 7 shaft.

Miners must go up and down under the hanging wall from underneath which the copper rock has been blasted. Trammers must go up in the stope for the purpose of scraping down the rock to the soller or level to be shoveled into the tram car. The trammers are not given tools to keep this hanging wall safe. They may be required to work under it for months. The evidence shows, also, as will appear more in detail later, that the shift boss also goes around and looks over the hanging to see that it is safe.

Counsel for defendant discuss the assignments of error under the heads of assumption of risk; contributory negligence of plaintiff as a matter of law; variance between the pleadings and proofs; error in denying a motion for new trial because of excessive verdict; errors in the translation of testimony, and other reasons not necessary to further state.

We will take up the last of these groups first. The bill of exceptions was signed November 9, 1910, and a writ of error taken out. The motion for a new trial was made February 1, 1911. This being the situation of the case, the judge very properly held the case was out of his court, and that he had no jurisdiction to dispose of the motion. We, of course, cannot review his action in that regard.

As to the variance between pleadings and proofs, we have searched the record in vain for anything to indicate that this question was presented to and passed upon by the trial judge. For that reason we decline to consider it.

It is claimed the plaintiff assumed the risk of the conditions as he found them, which resulted in his injury. It is also claimed that he learned what the conditions were, and that, knowing these conditions, his continuing to work was negligence which contributed to his injury, and that for each of these reasons the court should have directed a verdict in favor of defendant, counsel citing, in support of their contention, Petaja v. Mining Co., 106 Mich. 463 (64 N. W. 335, 66 N. W. 951, 32 L. R. A. 435, 58 Am. St. Rep. 505); Ritzema v. Brick Co., 152 Mich. 75 (115 N. W. 705); Lukovski v. Railroad Co., 164 Mich. 361 (129 N. W. 707), and many other cases. It becomes important to consider that part of the testimony most favorable to plaintiff to decide whether there was a case to be submitted to the jury.

One of the witnesses testified:

“ On the day of the injuries to Nick, Nick and I were working together. We were tramming rock on the fifty-fourth level, tramming it out to No. 7 shaft. We had trammed out 15 cars during the day. We got those 15 cars from the drift and cutting out and from the stope also. Two cars I think we took from that stope. I am speaking now of the stope where Nick was afterwards hurt. We got two cars from that stope.
“Q. When did you get those cars ?
“A. I recollect it being in the forenoon, somewhere around 9 o’clock in the morning. Up to the time we got those cars, the shift boss had not come around and seen us that I know. While we were getting those cars from the stope, we heard rock fall from the hanging wall. We believed it came from the hanging in the stope. We were then shoveling dirt from the soller into the car. The soller is the place where the dirt is run down, and from there shoveled to the car. When we got through hauling those fifteen cars of rock out to the shaft, it was 4 o’clock. Then we put on our coats and we sat down, near the shaft. Captain Maunders came there then. I refer to the same shift boss I have spoken of before. I had a talk with Captain Maunders. The captain asked ‘How many cars have you filled?’ I told him 15 cars. He says that was too little. We told him that there was no more dirt, and that was a poor place. I might in some way give the conversation in English that I had with the captain. (Witness speaks English.) Captain say, ‘How many car you fill?’ I say, ‘ Fifteen cars.’ Captain say. ‘That’s small number.’ He say, ‘Go fill one more car.’ I say, ‘No more dirt, that place no good.’ He say, ‘That place all right. I see today. Go fill one more car or else go up.’ I told the captain about I see rock fall there. (Witness speaks English.) I see that place no good. I see small rock down on hanging.
"Q. Then what did the captain say ?
“A. He say, ‘That place bully good. I see today.’
“Q. And he told you to go ahead and go to work there or go up, did he ?
liQ. After that, what did you men do then ?
“A. Then we went in.
“Q. Well, what stope did you go into ?
“A. The inside stope.
CCQ. Was that the one the captain referred to ?
"A. Yes; all of the rock then had been taken away from the soller already. We went then in the stope to get rock. Nick Minkkinen went with me. We went up from the soller approximately between 15 and 20 feet. I went on the south side of the mill, and Nick went on the north side. I might have been 10 feet or so away from Nick. We were working up there less than half an hour before Nick got hurt, not a full half hour. During that half hour, Nick and I shoveled dirt down into the soller. While we were working there the rock fell down from the hanging, and injured Nick. I saw it just then when it fell down. It was lots of it, and I can’t just state how many, but it was a big pile. I don’t know that our work in shoveling down there, my work or Nick’s work in shoveling the rock into the mill, loosened the rock in any way, but it should not loosen any way because we shoveled from the foot wall. We were shoveling the loose rock that had been blasted down by the miners before. The rock that we were shoveling was copper rock, and this rock that fell was from the hanging wall.
“ When Nick was struck with the rock, he fell on the foot. I went to see him, what happened to him. I found him. There wasn’t much dirt on him. There were two rocks on him, the hanging rock. Not at first I didn’t examine Nick to see how he was hurt. I didn’t have time. I was just trying to move him away from that place. I moved him towards the place where I was at that time. Then two miners came over there, and together with them we carried him down, put him on the motor, and carried him out to the shaft. I can’t state positively how big a stope that was, how long it was along the level. It might have been 50 feet or more. It might have been more or less. There were miners working up to the top of the stope from the place where Nick and I were working at the time he was hurt. The miners were working 60 or 70 feet. That part of the stope was worked out, and the miners had carried this stope up 60 or 70 feet above that place. The rock that the miners blasted fell down the same level that is now in question; that is, it would run down the foot wall.
“Q. And you men had shoveled out all that ran down there naturally ?
“A. Yes; we were put there for the purpose of shoveling down enough to fill this car. The vein there between the foot and the hanging wall, at the place where Nick and I were shoveling down this rock, might have been eight or nine feet, and it might have been a little over. This rock that is blasted by the miners, the copper rock, might fill a portion of the space between the foot and hanging near the stalls, but not very extensively anyhow; so that, if I were standing on the foot there or on the rock that was lying on the foot, this hanging would be eight or nine feet above my head; right straight up it was very much higher, the stope running up, but, if you reached directly across to the hanging wall, it would be just about so you could reach it. I think it might have been eight or nine feet. The miners had not blasted that day in that stope before Nick got hurt. They usually blast once a day, in the evening. That’s just before quitting. Quitting time is about 5 o’clock.
“ I have had quite a little experience as a trammer. I don’t recollect at once how long I was tramming before this injury occurred. I had trammed over a year then. During that time I had worked in the Quincy Mine altogether. In the Quincy mine as tramming is carried on there and was carried on before this injury, it didn’t belong to the trammers to look after the safety of the hanging wall. I think it’s'the captain’s work to look after the hanging wall in regard to loose rock, so that rock would not fall. I refer to the shift captain. That would be Captain Maunders.
“Q. And do you know what men are employed under him to remove the loose rock from the hanging wall and inspect the wall ?
‘‘A. There were such as barmen pinching it down.
“Q. Now, did Captain Maunders use to hire and discharge men ?
“Q. (Last question read to witness.)
“A. Yes; I know that positively because he is the one took me to work, and I saw him discharging the men.”

This witness explained that, when the captain said “go ahead and go to work there or go up,” he understood it meant to go to work or be discharged.

On the cross-examination he said in part:

“ Minkkinen and I were about 10 feet apart at the time the accident happened. I was on the south side of the mill and he was on the north side. I think it was 15 or 20 feet from the stulls; that is, we were 15 or 20 foot on the foot wall from the foot of the stulls. This third man that was helping us might have been near me, I am not positive about that, just where he was standing, but he was the same side as I was anyhow. I was scratching down dirt that was piled up there so as to bring it on the soller. Minkkinen was doing the same on his side. I had my back towards Minkkinen.
ICQ. Now, could you touch the hanging with your hand there where you were standing ?
“A. Not straight up we couldn’t touch the hanging.
“Q. Well, could you touch it at all by reaching back a ways ? *
“A. Well, according to my estimate, the hanging was eight or nine feet, and we could reach that.
“Q. You could reach that?
“A. Yes.
“Q. Now the hanging that was right over you, was that all good, nice hanging?
“A. It must have been because nothing came down.
“Q. You could see it could you, nicely
“A. Yes; I could see that.
“Q. And Minkkinen could see the hanging near him, could he?
'‘A. Yes.
‘ * Q. Now did you look the hanging over that time when, you went there to get enough dirt for the last car ?
“A. No; we didn’t have time to examine.
“Q. Well, you looked at it, didn’t you ?
“A. We looked at it.- _ .
_ tsQ. Now is it customary when you go to a mill to fill a car to look around to see if it is all right?
“A. Yes.
“Q. You always do that don’t you?
“A. Yes.
“Q. And, if you see any piece of hanging that looks loose you either go and get a bar and bar it down, or have the miners come and bar it down for you ?
“A. The trammers have no bar to pinch it down.
,lQ. No; but you sometimes go and get a bar from the miners to pinch it down ?
“A. In some cases, but, if going after the bar from the miners and get from them, the miners would then come to pinch it down.
ilQ. That is, if you ask them to come and pinch it down, they will come, and do it for you ?
“A. I think it doesn’t belong to the miners when they go up so high in the stope.
“Q. Well, if you see a piece of loose hanging, you go to the miners, and get a bar, and have it taken down, or bring a miner with you and take it down ?
ilA. They couldn’t be down in every case.
“ Q. There were miners on the drill there wasn’t there, a little way from you?
“A. Yes.
Q. And you could have gone and got a bar from them or brought one of them there couldn’t you, that is, if you knew of any loose piece there ?
‘ A. Yes; why not?
“Q. And you frequently do that when you see a loose piece in your work as a trammer ?
“A. It is done sometimes. We did not see any loose hanging around the place where Minkkinen was working. We didn’t know there was any. When miners working in a stope and they drill and blast down mine rock, I never saw them coming down and pinch the rock down, only from their own place. A miner always keeps his own hanging clean. I don’t know if the miners on that machine in that stope used this mill to go up and down to their work, and I didn’t see them going through that mill. They might, but I don’t remember just which way they went up. They might have went up the nest mill to it, but my recollection is that they might be going from another level, but I am not sure. I don’t know if this place where we were working scratching down dirt was the place where the machine was just moved up from a little while before. The machine was up high in the stope and the rock was there.
“Q. The first that you knew that Minkkinen was hurt was after the rock had fallen on him ?
“A. Yes.
i(Q. So that you saw the. rock after it had come down and struck him ?
“A. No; I saw when it started.
“Q. Well, you had your back towards him, how could you see ?
“A. It just happened that I stood up at that time. I might have heard something just before then.
“Q. Now was any of this rock that struck Minkkinen leaning on the stulls ?
“A. It run down to the mill.
“Q. And did some of it rest on the stulls before it came down?
“A. That I don’t know, if it was resting on the stulls.
“Q. It might have been ?
“A. It might have been.
11 Mr. O'Brien: Do you mean before it came down from the hanging or down from where ?
“Mr. Lawton: Wherever it came from.
“Q. This rock that struck Minkkinen was up on top of the dirt that he was scratching down ?
“A. No; it fell from the hanging.
“ Q. Well, it was up close to the top of the dirt ?
“A. It wasn’t very far when he was shoveling there, and over his head it fell down.
“Q. And some of the dirt came sliding down with it too?
“A. Yes.
“Q. Quite a lot of dirt came sliding down with this rock?
“A. Not very much.
“Q. You don’t know if Minkkinen loosened this rock up by scratching away the dirt or not do you ?
“A. It didn’t loosen up on that account.
“Q. You don’t know that for sure one way or the other do you ?
“A. How could it happen, because that was up in the hanging, and he was scratching the dirt on the foot wall ?
“Q. I am asking you if that might not have been the fact.
“A. It might happen, but it appeared to me that it didn’t happen at that time.
“Q. That’s your opinion of it ?
“A. Yes. * * *
“Q. Now, when you were out to the shaft as you state, Captain Maunders told you to go and tram another car or shovel another car full of dirt ?
“A. Yes.
“Q. Had he been along that level where you were working any time before during that shift ?
“A. I don’t know if he had been there before.
“Q. You didn’t see him in there before?
icA. Not that I remember.
“Q. Was the trammer boss in there ?
“M. I don’t remember positively. He might have been there once or so.
“Q. Now Mr. Maunders’ duties as a shift boss is to go around and take the men’s time, put a mark down in his book?
“A. It might be.
“Q. Well, don’t you know that he keeps the time of the men?
“A. Yes.
“Q. Now, will you state again what Maunders told you to do when you quit work there you say at 4 o’clock ?
“A. He told us to get one more car.
“Q. Is that exactly what he told you ?
“A. Yes; he told us to find one more car.
“Q. So you went back to get another car?
(‘A. Yes.”

It will not be necessary to repeat what has already been quoted.

Captain Jacobs testified, on the cross-examination, in part as follows:

Cross-Examination by Mr. O’Brien: In No. 7 shaft there was about 300 men employed, somewhere around that, I guess, 250. Those men consisted of miners and timbermen and trammers, no barmen. The timbermen go around putting in timber. On this shift Captain Maunders had full charge of the operations there. He had charge looking over the trammers and all that. He had a right, if there was any stope to be cleaned out — he had a right to put them there. He had a right to keep the trammers working. He had all the right that I would have there to keep them at work. That is true. I looked after two shafts, No. 2 shaft and No. 7. I would not be able to go down in No. 7 shaft every day all the time. I can go from one shaft to the other. Our shafts are numbered wrong. We got 7 on the lower and jump to No. 2. I wouldn’t go down every day, about twice or three times a week. When I was not down, the only representative the company had in the mine was the shift captain. On that shift at that time was Captain Maunders. His full name is Thomas Maunders. Mr. Maunders had the right to send a man up to the office if he didn’t tend to his work; and, if he disobeyed his orders, he had a right to send them up. That meant I should investigate the matter, and give him his time if he didn’t want to work. If Captain Maunders said he wouldn’t obey orders, I suppose I would have to give him his time.
“ If the trammer complained of a place being dangerous, it would be the duty of the shift boss or trammer boss to investigate it. The shift boss would look at it to see if it was all right. If he had said he had seen it and it was all right, they would have to go to work, but they wouldn’t go under loose ground if they knew it; but in a matter of that kind they would be supposed to take his judgment, instead of their own. As a matter of fact his judgment would be better than their judgment.
“It doesn’t take much experience to detect loose rock in the hanging wall. If a man is there four or five years, he should know loose rock. If there is no crack, you can give it a rap, and see if it is loose. They test it sometimes with a bar or a sledge. By tapping it if it’s loose, it has a drummy sound, and, if it’s solid, it sounds solid. The miners in their own working place and own stopes tend to that first thing. They are supplied bars for that purpose; and the barmen are supplied with bars to bar down any loose ground. The trammers are supplied with picks and sledge. The sledge is for the purpose of breaking up big boulders. When a rock is so big they can’t manage it by breaking it up with the sledge, they blast it.
“We don’t expect the trammers to spend much time in pinching down loose rock if there is loose rock in the next mill. We don’t expect them to spend much time in pinching down loose rock. If they find that a place, a particular mill, is dangerous, and that there is loose rock, they are supposed to go to another mill. The reason of that is that they are supposed to keep the skip going or put in such an amount of rock. They have got to get in a certain amount of rock a day; and the amount of rock they are supposed to tram is so regulated that it keeps them all the time on the go. The duty of the trammer is to tram rock. It is true we do have a system in the mine of keeping the place reasonably safe for the trammers as to loose rock. We have all cutting out stopes. The miners bar down all the loose rock, and in the mills; so that the man that goes ahead of them in that respect would be either— the shift boss would send the barmen in there on a particular occasion if he found it was loose, or else order the miners to come down from the stopes and bar down. * * *
“ After the trammer has reported to the shift captain and the shift captain said it’s all right to go ahead and work, they are supposed to work. When the shift captain goes around through the mine, he has an eye out for loose rock. He looks around for loose rock, going through the levels, because, after blasting, there is a tendency to sort of shake up the hanging wall, shakes up some loose ground. The reverberation is liable to make the hanging scale off or flake off some in some places. Our hanging is pretty good in most of the stopes. If we find it is breaking off, we put timber in. When a man hears fine dirt falling from the hanging, sometimes it is an indication that there is loose rock up there in larger quantities, sometimes it isn’t. Sometimes in blasting a little loose copper rock is up there and after a little comes down. Sometimes a large fall of hanging rock is preceded by small pieces coming down, sometimes. That’s always looked upon as an indication of danger to a man working in a mine.”

Captain Maunders testified in part as follows:

“We don’t mine the hanging wall at all if we can keep out of it. Sometimes a miner will get into it by mistake, but he is not supposed to get into it if he can help it. The hanging is left intact as near as we can get at it. When the blasting is done, it has a tendency to shake up the hanging.
Q. And in places it is necessary to look over the hanging and make it safe, pinch it down ?
“A. Yes, sir.
“Q. And it’s the miners’ place or the timbermen to look after it ?
“A. The miners’.
“Q. And the barmen look after it ?
“A. Yes, sir.
“Q. And you, as shift boss, are supposed to see that the place where the trammers are — to make it safe ?
“A. Yes, sir; if I see it, I tend to it.
“Q. And, if the danger is apparent, it’s your duty to look after it, and see that it is safe before you put them to work there ?
“A. Yes, sir.
UQ. And, if you determine it is safe after your inspection, they are supposed to work there ?
“A. I ain’t supposed to tell them to go there.
“Q. But, according to the rules of the mine, they are supposed to go there or go up ?
“A. Not in all cases. If a man objects going there, we give him other places. When we give them an instruction to go there or go up, that means just what it says.
‘ ‘ I don’t see why trammers are not men that are able, ordinarily, to judge the character of a hanging wall. They are at liberty to do that kind of work if they want to. Their duty is to tram rock. We have men for the purpose of looking after the hanging. We give them tools suitable for examining the hanging. Those tools are long steel bars, and a sort of crowbar to pinch it down, put in the crevice and pinch it down. The miners usually blast it. The only way for the trammers to work safe in the Quincy mine is to pinch down the loose rock. If there is any loose there, it has to be taken down. If it’s necessary, we timber up the stopes along the open stopes. The hanging is not kept clear in all places by pinching it down. It depends how bad it is. If the hanging is very bad, we put in timber. If that timber is put in there, it’s put in there for the purpose of keeping the hanging safe; and for no other purpose. We wouldn’t put it there for any other purpose principally. The men that do that work of timbering up such a place are called timbermen. Their principal work is keeping places safe. I deny absolutely having that conversation.”

There is no complaint made about the charge of the court if the case was to be allowed to go to the jury. We think it clear that instead of the case being within the line of cases represented by Petaja v. Mining Co., supra, it is within the other line of cases represented by Danula v. Mining Co., 166 Mich. 350 (130 N. W. 604), and the many cases cited therein. See, also, Highland Boy Gold Mining Co. v. Pouch, 124 Fed. 148, 61 C. C. A. 41; Coal & Manufacturing Co. v. Kaiser, 229 Ill. 32 (82 N. E. 239, 120 Am. St. Rep. 233).

Judgment is affirmed.

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


author: Bird, J.

text:
    CRAWFORD v. CITY OF DETROIT.
    1. Appeal and Error — Res Judicata — Taxation—Judgment.
    Where complainant, in a suit to enjoin the city of Detroit from enforcing a special assessment, had, by a previous bill of complaint, raised the same questions, which had been decided favorably to her contention as to the same special assessment made by the village of Delray, subsequently annexed to the city, which attempted to cure prior defects by re-assessing the tax, the parties were bound by all matters decided in the first proceeding.
    2. Municipal Corporations — Taxation—Special Assessments— Invalidity.
    The failure of a village council to pass a resolution determining the necessity for a proposed public sewer is a jurisdictional defect.
    S. Municipal Corporations — Curing Errors — Taxation — Special Assessments — Sewers and Drains.
    Jurisdictional defects in levying a special assessment for the construction of a sewer are not curable after its construction, under an act authorizing the city of Detroit to vacate proceedings when they should be invalid, and cause a new assessment to be levied. Nor would such power extend so as to include taxes of a village later annexed to the city, in the absence of special statutory authority.
    Appeal from Wayne; Hosmer, J.
    Submitted November 16,1910.
    (Docket No. 62.)
    Decided March 29, 1912.
    Behearing denied July 22, 1912.
    Bill by Mary A. Crawford and others against the city of Detroit to enjoin the enforcement of a special sewer tax. From a decree for complainant, defendant appeals.
    Affirmed.

      Walter Barlow (P. J. M. Hally, of counsel), for appellant.

      Wilkinson, Post & Oxtdby and James Swan, for appellees.
   Bird, J.

The bill of complaint was filed in this cause by Mary A. Crawford on behalf of herself and 95 other complainants to enjoin the city of Detroit from enforcing a special assessment to defray the cost of the construction of lateral sewers in that part of the city of Detroit which was formerly the village of Delray. At the conclusion of the hearing, the trial court granted the relief prayed and the defendant has appealed to this court.]

A few months prior to the annexation of the village of Delray to the city of Detroit, the village council took steps to construct certain lateral sewers extending over a large area in the village. Certain proceedings preliminary to their construction were had by the council and the contract was let for their construction. As soon as it became known that the contract was let, this complainant filed her bill of complaint in the Wayne circuit court, in chancery, praying that the village authorities be enjoined from making a special assessment to defray the cost of the sewer. A hearing was had and that court declared the proceedings illegal and void, and enjoined any further steps in the making of said special assessment. The decision was announced two days before annexation became a fact. The Detroit city council then took up the matter and ordered a reassessment of the district benefited and attempted to enforce it, whereupon the complainant filed the present suit to restrain the collection.

Counsel appear to have considered and discussed upon the second hearing substantially the same questions that were discussed and decided on the first hearing. We shall not concern ourselves with the propositions involved in the first hearing, as there was no appeal from the decree of the Wayne circuit court, and those questions must be regarded as settled and binding upon all the parties.

The question which is open for review upon this record is, What force shall be given to the subsequent proceedings of the Detroit city council in which it attempted to cure the defects in the village proceedings after they had been declared void by the court?

After the village became a part of the city, the city council attempted to cure the defects in the village proceedings by passing the following resolution:

“ Whereas, the village council of the village of Delray did determine to construct certain lateral sewers for the proper drainage of that part of said village bounded on the north by the Wabash railroad, on the east by Crawford avenue, on the south by River street and on the west by Louis avenue, and whereas, said village council did cause to be made a map and plan of said proposed lateral sewers, which said map and plan, together with an estimate of the cost of said proposed work, was filed in the office of the villagé clerk of said village, as required by section 2791 of the Compiled Laws of the State of Michigan for 1897. Whereas, the said village council of the said village of Delray did establish an assessment district, in which said district was included the lands and premises which in the opinion of said village council would be benefited by the drainage by said lateral sewers aforesaid, and which said village council intended to assess for the costs of said lateral sewers, and whereas, said village council did cause a special assessment roll to be made, known as special assessment roll No. 11, upon which were assessed the lands and premises aforesaid benefited by the construction of said lateral sewers; and whereas, said lateral sewers have been constructed in part, and private property has been benefited thereby; and whereas, the said special assessment aforesaid has been vacated and held invalid by a decree of the circuit court for the county of Wayne, on account of certain errors and omissions in the proceedings of said village council, and in said special assessment, and whereas, since the proceedings aforesaid were taken by said village council, and the rendition of said decree, the territory of said village of Delray has been annexed to and is now a part of the city of Detroit, and is now subject to the provisions of the charter of said city; and whereas, the said plan of said lateral sewers aforesaid has been approved by the city engineer, and the committee on sewers of this council, together with the estimate of the costs of said work, aforesaid; therefore, resolved, by the common council of the city of Detroit that it is deemed necessary to construct and complete said lateral sewers aforesaid in accordance with the plan thereof aforesaid now on file in the office of the city engineer, which said plan is hereby approved. Resolved, that for the purpose of making a reassessment for defraying and paying the cost of said lateral sewers aforesaid the lots and parcels of real estate abutting on said lateral sewers respectively, as shown on said map and plan therein, which said lateral sewers are ordered to be constructed shall be and the same is hereby constituted and declared one local assessment district for the lateral sewers respectively as so constructed. Resolved, that the city engineer be and he is hereby ordered and directed to make an assessment on the lots and parcels of real estate within the limits of said lateral sewers and abutting thereon, according to the benefits which said lots or parcels of real estate shall receive from said improvement.”

It is argued by counsel for the city that the passage of this resolution ordering a reassessment cured the defects which the court found in the village proceedings. We are unable to agree with counsel in this contention for the reasons, first, that the subsequent action of the council could not cure jurisdictional defects; second, because the resolution passed by the city council did not purport to cure any defect which occurred prior to the time of making the assessment.

First, an examination of the opinion and decree of the circuit court on the first hearing will disclose that the defect most relied upon to defeat the proceedings was the failure of the village council to pass the resolution declaring its determination to construct the sewer in accordance with 1 Comp. Laws, §§ 2795 and 2833. The failure to pass this resolution has been several times held by this court to be a jurisdictional defect and to vitiate the entire proceeding. The question was before the court in Hoyt v. City of East Saginaw, 19 Mich. 39 (2 Am. Rep. 76). Mr. Justice Cooley, in commenting upon the failure to pass this resolution, among other things, said:

“It is evident, I think, that under the charter of East Saginaw, the declaration of the necessity for the improvement is a distinct act from and precedes the order that the improvement shall be made. It is the commencement of the proceeding, and is as indispensable to give the council jurisdiction as is process or the voluntary appearance of parties in civil actions to give jurisdiction to a court. It is the first of several steps, which, if duly and regularly taken, may result in fixing a lien upon the property of the citizen, and even in depriving him of it against his will.: This step having never been taken, the whole proceeding is a nullity.”

A similar question was involved in the case of the Bay City Traction, etc., Co. v. Bay City, 155 Mich. 393 (119 N. W. 440), in which the case of Hoyt v. City of Hast Saginaw was cited with approval and a like conclusion was reached.

These cases establish the law that the failure of the village council to pass the resolution required by these sections is a jurisdictional defect, and, if it is a jurisdictional defect, it was not cured by the subsequent resolution of the council.

Second, the city relies upon section 197 (1904) of its charter to give force to its resolution; the material portion of which reads as follows:

“Whenever in any proceedings heretofore or hereafter made for the purpose of paving any street or alley or public places, or for the construction or repairing of any sidewalk or sewer * * * and the same shall, in the opinion of the common council, be invalid, said common council may vacate and set the same aside, and when any errors or omissions may appear in any such proceedings in the making of said improvement, or in any assessment roll or in any certificate thereto, the common council may order the same to be corrected, and when any such special assessment shall be so vacated or held invalid by the judgment or decree of any court of competent jurisdiction on account of any error or omission in said proceedings or in said assessment, the' common council may cause a new special assessment to be made, for the purpose for which the original assessment was made.”

The power conferred by this charter provision would not authorize the council to cure jurisdictional defects; nor did it attempt by its resolution to cure any defect in the proceedings anterior to the assessment. It is obvious that the ordering of a reassessment would not cure a defect in the proceeding which lay at the foundation of the proceeding. If the village proceedings were declared void for a jurisdictional defect and the city council could not, by resolution, cure the defect, then it follows that the whole controversy was disposed of on the.first hearing, and, no appeal having been taken therefrom, the conclusions and decree of the trial court are final.

There is another serious objection to sustaining this proceeding, and that is the failure of the legislature to authorize the city council to complete improvements which were authorized and partially completed under the village law. The question which it presents is this: May improvements be authorized and partially completed under the village act and afterward finished under the city act, without authority from the legislature? We are unable to find anything in the act authorizing annexation which confers such authority. The question, however, is not raised, and it will be unnecessary to determine it.

Counsel for the city argue that 13 of the complainants signed the petition for the improvement and therefore should be estopped. That question was included among those questions which were raised and disposed of by the trial court in the first hearing. It is now too late to raise the question on appeal.

The decree of the trial court will be affirmed. No costs will be allowed either party in this court.

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


author: Bird, J. Blair, J.

text:
    BRYANT v. COMMON COUNCIL OF THE CITY OF DETROIT.
    1. Intoxicating Liquors — Licenses—Saloons—Municipal Corporations.
    A saloon keeper was not entitled to a preference over other applicants for retail license because he had been engaged in the business during 1909, and during the year preceding his application, which he filed before April 15th, 1911, 1,772 applications having been filed, of which the counoil of the city of Detroit granted the'maximum allowed by law, i. e., 1,552. Mandamus does not lie in such case to compel the granting of relator’s application, which the oouncil was authorized to rejeot under Act No. 291, Pub. Acts 1909.

    2. Same.
    As to applications filed after April 15th, the council is required to consider them in the order of filing.
    Certiorari to Wayne; Mandell, J.
    Submitted June 29, 1911.
    (Calendar No. 24,649.)
    Decided March 29, 1912.
    Mandamus by Brazil J. Bryant against the common council of the city of Detroit to compel the respondent to grant relator’s application for a retail liquor license. From an order allowing the writ, respondent brings certiorari.
    Reversed.

      Richard I. Lawson (P. J. M. Hally, of counsel), for appellant.

      Francis H. Warren, for appellee.

       Discretion of local authorities as to the number of licenses to be granted for the sale of intoxicating liquors, see note in 18 L. R. A. (N. S.) 386.
      Control by mandamus of decision of licensing officer as to fitness of applicant, see note in 27 L. R. A. (N. S.) 1195.

   Bird, J.

The relator petitioned the Wayne circuit court for a writ of mandamus to compel the respondent to issue to him a liquor license. The writ was granted, and the respondent has removed the proceeding to this court for review.

The relator was keeping a saloon in the city of Detroit in April, 1909. He was granted a license for the year 1910, but was refused one for 1911. He filed his application on January 24, 1911, and it was denied April 25, 1911. On April 27th he filed a second application and this was denied May 2, 1911. It is conceded that the relator has none of the disqualifications mentioned in the statute. The maximum number of licenses the council could grant in 1911 was 1,552. These were all granted from the 1,772 applications on file previous to April 15th. There are now a large number of applications on the waiting list which were filed previous to April 15th.

Under this state of facts, the relator contends that it was the duty of the respondent to grant him a license, and he puts it upon the ground that he was engaged in the business in April, 1909; that it was the duty of the council to prefer those who were engaged in the business in April, 1909, to those who were not.

The law under which this contention is made is section 39 of Act No. 291, Pub. Acts 1909:

“When applied for in accordance with the provisions of this act, bonds shall be approved by the local board, board of trustees, council or common council in each township, village and city for retail liquor dealers, not to exceed the number doing business in said township, village or city in the month of April, nineteen hundred nine. Provided, that if after this act takes effect the number of retail liquor dealers in any township, village or city shall be in excess of the ratio of one to each five hundred inhabitants, according to the last United States census, no license or licenses shall be issued to any person or persons to take the place of such license or licenses as shall have been revoked as in this act provided, or that shall voluntarily have been surrendered, until the ratio of the licenses granted, and the saloons in such township, village or city shall not exceed one saloon for every five hundred inhabitants thereof, according to the last United States census: * * * Provided, further, if the applications for such. license filed on or before April fifteenth of any year equal or exceed the maximum number permissible, under this section, no further application shall be considered; and if such applications exceed such maximum number the township board or village or city council shall grant the maximum number, and shall determine which of the applications so filed shall be granted: Provided, further, that when an applicant is found to be ineligible under the terms of this act or when said applicant fails to furnish a proper bond or when a license is revoked or determined from any cause, such township board or village or city council shall grant further applications, if any are on file, up to such maximum number, giving preference to those filed on or before April fifteenth, and after that to applications in the order in which the same are filed.”

This statute makes it very clear that, when the applications are in excess of the maximum number to be granted, the council shall determine which of the applications so filed shall be granted.” In April, 1911, respondent had 1,772 applications on file. It could grant only 1,552. It is obvious that some of the applications had to be denied. This duty was left to the discretion of the council, subject to the statutory disqualifications. If all of the 1,772 applicants were free from the statutory disqualifications, the council had the right, in the exercise of its discretion, to choose one and reject another without giving any reason therefor.

Relator’s counsel argues that those who were in business in April, 1909, must be preferred to those who were not so engaged. If the council is bound to observe any such preference, the duty must be found in the statute. The statute nowhere lays down any such rule of selection. The council is enjoined by the statute to prefer those who file their applications prior to April 15th to those who file after that date, and to consider and grant licenses from those who file after that date in the order in which they are filed. Having commanded these preferences, it is reasonable to suppose that, had the legislature intended to prefer those who were in business in April, 1909, to those who were not, it would have included it among the other preferences mentioned. The legislature having dealt with the question of preferences, and having omitted the one contended for, we must presume it did not intend to create any siich preference.

Section 39 is not aimed at persons nor locations, but the whole effort of that section is to point out the number of saloons permissible under the varying conditions.

The relator cites the case of Hanold v. Stambaugh Common Council, 163 Mich. 242 (128 N. W. 233), as an authority for his position. The case has no application. That case dealt with a situation where two applications were filed after April 15th. Only one could be granted. The council were directed to proceed to consider the applications in the order filed as the statute directs. Among those who file after April 15th, the council has no discretion as it has among those who file before the 15th, but must consider the applications in the order filed. It is our opinion that the relator has failed to establish his right to the writ.

The order granting the writ is reversed. No costs will be allowed.

McAlvay, Brooke, Stone, and Ostrander, JJ., concurred with Bird, J.

Blair, J.

I concur in the result because of the decision this day handed down in the case of Rohde v. Wayne Circuit Judge (168 Mich. 686 [135 N. W. 457]).

Moore, O. J., concurred with Blair, J.


author: McAlvay, J;

text:
      In re MEEKER’S ESTATE. PARTRIDGE v. MEEKER.
    1. Estates of Decedents — Evidence—Claims.
    Testimony that deceased paid about $2,500 in claims against a partnership of which he was a member was inadmissible on the trial of a claim presented against his estate.
    2. Same — Witnesses—Statutes—Waiver.
    Incompetent testimony of claimant’s agent, equally within the knowledge of deceased, as to conversations with decedent, was not rendered competent by waiver because witnesses in behalf of the estate testified to the substance of the conversations.
    3. Appeal and Error — Exception—New Trial — Motions—Savinc Questions for Review.
    The denial of a motion for a new trial, based on the alleged ground that the verdict was against the weight of the evidence, is not reviewable on error upon a record that shows no exception to such denial.
    Error to Eaton; Smith, J.
    Submitted November 20, 1911.
    (Docket No. 144.)
    Decided March 29, 1912.
    Carrie W. Partridge presented a claim against the estate of Honnee W. Meeker, deceased, for wood sold by a firm of which he was a member on behalf of claimant, and it was disallowed by the commissioners on claims. Claimant appealed to the circuit court. Judgment for defendant, claimant brings error.
    Reversed.

      Bosslyn L. Sowers, for appellant.

      Garry G. Fox, for appellee.
   McAlvay, J;

From a disallowance by the commissioners on claims of her claim against the estate of Hon-nee W. Meeker, deceased, claimant took an appeal to the circuit court for Eaton county, which was allowed by the probate court. This appeal was tried before the circuit court with a jury, and resulted in a verdict against the claimant, upon which a judgment was entered. Claimant has brought the case to this court for review upon a writ of error.

Claimant is the owner of certain land in Eaton county upon which some timber was growing, which she caused to be cut and marketed. She was a resident of the city of Detroit. Samuel W. Wills, of Battle Creek, acted as her agent in marketing this wood. E. R. Cross, of Battle Creek, was at the time engaged in running a woodyard in connection with his lumber and coal business at that place, and by agreement with Wills certain wood of plaintiff was delivered to him and sold by him on commission. Afterwards, on or about April 15, 1905, Honnee W. Meeker, deceased, purchased a one-half interest in this business of Mr. Cross, and it was thereafter conducted by the firm of Cross and Meeker, as an equal partnership. At this time there were several hundred cords of claimant’s wood in the yard. It is claimed by plaintiff, supported by the testimony of Mr. Cross, that the copartnership continued to sell her wood on the same terms and conditions, and made payments on account by the firm checks. Later Meeker filed a bill to dissolve the copartnership and for an accounting, and a receiver was appointed. That suit is still pending. This claim was duly filed with the receiver in that case.

Claimant’s evidence further tended to show by the tes- „ timony of Mr. Cross that 55 or 60 cords of her wood (evidently stove wood) was sold by this firm. The books of original entry of these transactions of the firm were introduced in evidence, from which the same witness identified frequent sales of the wood between April 15, 1905, and October 28, 1905. The evidence tends to show that the order books were looked over with Mr. Wills when payments were made, and that two checks to him, introduced in evidence, were made by the firm, signed by both of the partners, as was always their custom. The wood left in the yard at the time the firm suspended business was taken back by claimant’s agent, Wills.

The claim in this case is for 57^ cords of wood at $2.60 per cord, upon which is credited two payments — $15 April 26, 1905, and $20 May 9, 1905, being the amounts and dates of the checks in evidence. The claimed balance with interest is $139.56. It is admitted on the part of the estate that:

“ If the firm at any time made such a contract and received the benefits therefrom as testified by Cross, then Cross & Meeker were liable, or, at the option of claimant, the estate of Meeker, deceased, was liable.”

The issue of fact therefore was whether the firm disposed of certain of claimant’s wood for which payment has not been made. On the part of the estate testimony was introduced tending to show that Mr. Cross, before the commission, did not testify that the firm had agreed to pay for this wood that it sold, and also that at the same time claims were presented to the receiver. Meeker stated that this was not a proper claim against the partnership, and at that time in the presence of Cross and Wills no one claimed that the firm had agreed to pay for this wood.

The errors assigned and relied upon relate to the rulings of the court upon the admission and exclusion of testimony, and the refusal to grant a new trial.

It is contended that the court was in error in permitting the widow of decedent, the administratrix, over objection, to answer the question :

“ Do you know about the approximate amount of claims which he paid that you were owing to the firm of Cross & Meeker, including what you paid ?
“A. Between $2,000 and $2,500.

The ob j ection that this was immaterial and irrelevant was well taken. No claim was made that any of the amount here involved had been paid. The amount of other claims was not in issue. The testimony was clearly prejudicial to appellant, and could have no other effect upon the jury. It was error to receive this testimony.

The court allowed the testimony, in behalf of the estate, of third persons, including the administratrix and her son, as to conversations had between claimant’s agent and deceased relative to the transaction in dispute. Later the agent, whose testimony as to matters equally within the knowledge of deceased had, on objection, already been excluded, was again offered to testify as to such matters upon the ground that the inhibition of the statute had been waived by the estate. This was excluded upon objection by counsel for the estate. This court has held repeatedly that third persons are competent to testify as to what passed between the parties, one of whom is dead. Taylor v. Bunker, 68 Mich. 258 (36 N. W. 66), and cases digested; Michels v. Western Underwriters Ass’n, 129 Mich., at page 422 (89 N. W. 56). This testimony of claimant’s agent was properly excluded.

Error is assigned upon the refusal of the court to grant a new trial on the ground that the verdict was against the weight of the evidence. If an exception to this denial was taken, it does not appear in the record, and therefore we cannot consider this complaint, however meritorious it may have been. Stevenson v. Railway Co., 118 Mich. 651 (77 N. W. 247); Pearl v. Township of Benton, 136 Mich. 697 (100 N. W. 188); Moffet v. Sebastian, 149 Mich. 451 (112 N. W. 1120).

For the error pointed out the judgment is reversed, and a new trial ordered.

Moore, C. J-, and Steers, Brooke, and Ostrander, JJ., concurred.


author: McAlvay, J.

text:
    HOOPENGARNER v. STIPE.
    1. Brokers —Contracts—Evidence of Other Transactions — Express Contract.
    Evidence of a contract between brokers and a real estate owner prior in date to the one sued upon, at a different rate of commission and a different price, evidence as to price at whioh the owner had listed his property with another, and evidence as to prices asked at other times by him was inadmissible to sustain the brokers’ claim of an express contract for all above a given price as their commission.
    3. Same — Election of Counts — Admissions.
    Defendant’s motion to compel plaintiffs to elect whether they would recover on the special contract set up in their declaration, or on the common counts, was properly denied where counsel for defendants conceded in open court that they were entitled to recover either the sum claimed upon the express agreement or $300, and the court submitted the case to the jury accordingly.
    3. Same — Appeal and Error.
    The certificate of a trial judge as to what oocurred in open court is treated as conclusive in appellate proceedings.
    4. Same.
    The verdict being for the full amount claimed, $1,400, the court did not commit prejudicial error in charging that if the jury found the defendant made an express or implied contract with plaintiffs to sell the land, for a reasonable commission, their verdict should be for $300.
    Error to Washtenaw; Kinne, J.
    Submitted November 23,1911.
    ( Docket No. 86.)
    . Decided March 29, 1912.
    Assumpsit by Samuel E. Hoopengarner and others against William E. Stipe for commissions for selling certain real property. Judgment for plaintiffs. Defendant brings error.
    Reversed.

      A. J. Waters (John P. Kirk, of counsel), for appellant.
    If. J. Cavanaugh and George J. Burke, for appellees.
   McAlvay, J.

Plaintiffs sued defendant in assumpsit to recover a commission of $1,400, claimed to be due them on a special contract for services rendered in making a sale of defendant’s farm, and declared specially upon such contract, adding the common counts. A bill of particulars accompanied the declaration, claiming $1,400 for services in selling defendant’s farm in accordance with the terms of the arrangement set forth in the special count.

Defendant pleaded the general issue, and gave notice under it that he never entered into such a contract, and also a want of consideration for such contract. This contract is claimed by the plaintiffs to have been entered into on the farm of the defendant on the day they brought the customer who later, on the same day, made the purchase. Their claim is that they walked with defendant apart from the others, and he agreed that if they made a sale he would pay them for such services all of the sale price over $70 per acre. The amount claimed is exactly the excess over $70 per acre for which the farm sold.

Defendant admits that plaintiffs, on the morning of the sale, while crossing a field on his farm, talked with him about pay for their services. He denies that he agreed to pay them all over $70 per acre. His testimony is:

“A. Mr. Hoopengarner asked me, pinched me on the arm, and said, ‘ What are you willing to give us for commission on this farm ? ’ I said: ‘ Mr. Ziegler asked me $100 over the telephone this morning; I would be willing to give you $100 apiece; that would be $200.’ He said, ‘ I can take my man over to Mr. Reynolds’ farm and get $1,000.’ I said,5 Take your man over there,’ and I walked away.”

The issue in the case was tried before the court with a jury, and resulted in a verdict for plaintiffs for the full amount claimed, upon which a judgment was entered. Defendant seeks a reversal of this judgment hy this court, and has assigned numerous errors. One group of errors assigned relates to the admission and rejection of testimony.

Plaintiffs, throughout the entire case, relied upon the special contract, claimed to have been made with defendant. The court permitted witnesses, over objection of defendant, to testify as to a former agreement with one or both plaintiffs, in March of the same year, at another price, and to listing the land at a certain price with another party, and as to prices at which defendant had held his farm. It will not be necessary to quote this testimony. It is urged by appellant that such testimony was not material to the issue, and had no tendency to prove or disprove the contract sued on. It appears that testimony of this character was first introduced in the case upon the examination in chief of one of the plaintiffs, without objection. Objection was later made to such testimony, and exception taken as the questions were asked each witness, and the objections overruled, and the whole matter was covered by a request, on the part of the defendant, to the court to charge that all testimony, not bearing upon the express contract relied upon, should be disregarded. This request was refused and an exception taken. This testimony did not tend to impeach defendant, and was not admissible to show what were the terms of this special contract upon which plaintiffs relied. It was highly prejudicial to defendant. The court was in error in refusing to give the request.

Error is assigned upon the refusal of the court to require plaintiffs to elect upon which count of the declaration they would ask a recovery. The bill of exceptions contains an admission and concession by counsel for defendant which justified the court in denying the motion. The certificate of a trial judge as to all matters certified has always been considered as conclusive by this court. The following from the bill of exceptions is the admission and concession of counsel for defendant.

The Court: Mr. Waters, counsel for defendant, when he opened his case to the jury, definitely stated that he admitted that the defendant owed the plaintiffs $200, but he insisted that the $200 could not be collected in this suit on account of the pleading. During the course of the trial, Mr. Waters says that, although it was against his judgment, yet he would yield to the superior knowledge of his associate counsel, Mr. Kirk, and that he would admit that, for the purposes of this trial, the defendant is liable for either $200 or $1,400, and the case is submitted to the jury upon this theory. I certify that I submitted said case to the jury upon this theory by agreement of counsel for the parties in open court. The reporter omitted to take this, and Mr. Waters now objects to inserting it in the record. Defendant protests.”

Errors are assigned upon two paragraphs of the charge, as follows

“But he (defendant) admits that he is liable to the plaintiffs for a reasonable commission for making such sale, and he concedes that a verdict may be entered in this case for the plaintiffs, in the sum of $200 for the services which the plaintiffs rendered in the making of this sale.”

And also:

“On the other hand, if from the evidence you find that there was no special contract between the parties, but that there was merely an agreement, express or implied, that the defendant should or would pay a reasonable commission for the making of the sale of said farm, then your verdict should be $200.”

The statements relative to the matter of reasonable commission were not contained in the concession and admission; but, taking these paragraphs as a whole, we do not think that they were misleading or amounted to prejudicial error. No other errors assigned require discussion.

For the error pointed out, the judgment is reversed, and a new trial granted.

Steebe, Brooke, Blair, and Ostrander, JJ., concurred.