author: Ostrander, J.

text:
    SPROAT v. HALL.
    1. Limitation of Actions — Nonresidence—Absence from State.
    Plaintiff brought assumpsit on an obligation dated more than ten years previous, and which defendants claimed was barred by the statute of limitations. They were actors whose location frequently changed and who were out of the State, traveling about the country during most of the ten-year period. It was, however, defendants’ claim that they maintained their domicile in Detroit, Michigan, during the whole time and that they often returned to their said place of residence, and had no other domicile. Under ,3 Comp. Laws, § 9728 (5 How. Stat. [2d Ed] § 14135),
      held, that neither absence from nor residence outside the State would suspend the running of the statute, but that both conditions must concur, and the question of defendants’ domicile should have been submitted to the jury, upon proofs having a tendency to sustain the claim of either party.
    2. Same — Home—Traveling.
    The profession of an actor who travels from State to State does not preclude him from having a home at a particular place.
    3. Same — Trial—Refusing Requests.
    "Where the trial court refused to charge as. requested that the effect of defendants’ alleged residence in Michigan during most of the time during which plaintiff claimed he was outside the State would bar the suit, and where the court stated his opinion to be that defendant must have been within the State a consecutive period of six years, after the demand accrued, and the question might perhaps be one of fact, counsel for the defense concurring but saying that the question of residence in Michigan was as he understood it eliminated by the court, he could not be held to have deterred the trial judge from submitting to the jury the issue as to his residence in the State, and, particularly, in view of requests to charge presented by said attorney bearing upon that issue.
    Error to Kent; Brown, J.
    Submitted October 5, 1915.
    (Docket No. 1.)
    Decided December 21, 1915.
    Assumpsit in justice’s court by William J. Sproat ■against Lou Hall and wife, for an indebtedness evidenced by a writing. Judgment for plaintiff; defendants appealing to the circuit court. Judgment for plaintiff. Defendant Lou Hall brings error.
    Reversed.

      Rodgers & Rodgers, for appellant.

      Hall, Gillard & Temple, for appellee.
    A verdict for plaintiff was directed by the court, and judgment was entered on the verdict; plaintiff having submitted to nonsuit as to defendant Hilda Thomas. The suit was begun January 24, 1914, upon a cause of action which, as appears by the pleadings and proofs, accrued to plaintiff January 28, 1903. Defendants gave notice of their reliance upon the statute of limitations. There was written evidence of the debt relied upon by plaintiff, 'in the form of an I. 0. U., which bore the date last above, and which was executed in Chicago, 111., by defendant Hall. Plaintiff was and is a resident of Grand Rapids, Mich. Defendants, when the demand accrued, were nonresidents of Michigan, and, as has been stated, were absent from the State. They are husband and 'wife, by profession actors, and during all of the period in question, with rests and vacations, traveled about the country. From the year 1903 until 1910, except perhaps one or two years, they were in Michigan, and in Grand Rapids each year, playing engagements there, to the knowledge of plaintiff, who at some of the times met them, and who could during any of those years have there obtained personal service of process upon them. Defendant Hall offered testimony tending to prove that in the winter of 1904, or the spring of 1905, he established a residence in the city of Detroit, Mich., which for more than nine years he maintained, and had no other residence; that, when occasion permitted, he and his wife* returned to and lived in Detroit, where his clothing and such household goods as they possessed were stored and, when they were there, were used. That the debt accrued at the time hereinbefore stated, that no part of it had been paid, that at that time defendants were absent from and resided out of the State, and that defendant had not been within the State, either a period of six years or different periods amounting to six years, since January 28, 1903, were admitted facts.
    The trial court instructed the jury, in part, as follows:

      “In view of the fact that there is no dispute here but what there was a liability on the part of Lou Hall to Mr. Sproat January 28, 1903, and that no part of it has been paid, that liability was $150.88, and in view of the fact that the testimony establishes the fact and it is not disputed, that the debt was incurred outside of the State of Michigan, by a nonresident of the State of Michigan, and in view of the fact that the defendant since that time, under the law as I see it and apply it, has not come within the State of Michigan and been here a sufficient length of time to establish his defense, that of the statute of limitations, it simply remains for the court to say to you that the plaintiff has made out his entire case against the defendant Lou Hall.”
    In a carefully prepared brief counsel for appellant states his proposition, refused by the trial court, in this way:
    “If the debtor is outside of the State of Michigan when the cause of action shall accrue, the statute of limitations does not commence to run until the debtor shall come within the State of Michigan. The statute of limitations does commence to run as soon as the debtor shall come within the State of Michigan under such circumstances that the creditor by the use of ordinary or reasonable diligence may have an opportunity to sue him. The statute will run from that time on, except during such periods as the debtor shall be both absent from and a nonresident of the State of Michigan. A careful examination of a multitude of authorities on this subject in the various Státes justifies us in saying that there is throughout the American jurisprudence scarcely a dissenting voice to be heard in opposition to the above conclusion.”
    Counsel for appellee say:
    “Other States have the provision like ours that the statute does not run while the defendant is absent from and resides out of the State. In such States it is held that absence and nonresidence must concur. Our court held that to be the correct rule in Campbell v. White, 22 Mich. 178. We admit that to be the correct doctrine. In the case at bar it was conceded that between January 28, 1903, and January 24, 1914, the defendant had been absent from the State all of the time, with the exception of about two years. Therefore the claim is not barred, unless defendant actually resided at Detroit from 1904 or 1905. That is why we say that the one and only question in this case is: Where did Lou Hall reside after 1904 or 1905?”
    They further say that the court can say, as matter of law, that defendant was not a resident of Michigan within the meaning of our statute of limitations.
    The statute (3 Comp. Laws, § 9728; 5 How. Stat. [2d Ed.] § 14135) provides that actions such as this one is shall be commenced within six years next after the cause of action shall accrue and not afterwards. It is, however, further provided (3 Comp. Laws, § 9736; 5 How. Stat. [2d Ed.] § 14143):

      “If at the time when any cause of action mentioned in this chapter, shall accrue against any person, he shall be out of the State, the action may be commenced within the time herein limited therefor, after such person shall come into this State, and if after any cause of action shall have accrued, the person against whom it shall have accrued shall be absent from and reside out of the State, the time of his absence shall not be taken as any part of the time limited for the commencement of the action.”
   Ostrander, J.

(after stating the facts). While our statute was copied from Massachusetts, in which State its form, as copied, had been reached by successive modifications, still the whole chapter, in its present form, is “to be read as one act, with its several parts and clauses mutually acting on each other as their sense requires.” Conrad v. Nall, 24 Mich. 275, 277, 278. Its construction and its application to cases like the one before us was settled many years ago. Campbell v. White, 22 Mich. 178; Conrad v. Nall, supra; White v. Campbell, 25 Mich. 463. In the first of these cases it was distinctly held that it was the legislative intent - that the operation of the exception should be concurrent with the existence of the obstacle which prevents service upon the debtor, and that neither absence from the State nor residence out of it will, of itself, suspend the running of the statute, but both must exist to take tfie case out of the statute. In Conrad v. Nall, which was an action on a judgment, the court charged the jury as follows:

“First. That, if they should find that the defendant had not resided in the State ten full years subsequent to the rendition of the judgment, the action was not barred, and the plaintiffs were entitled to recover.
“Second. That, if they found that the-defendant became a resident of Ohio before the expiration of ten years from the recovery of the judgment, the statute did not begin to run again in his favor until his return to the State to reside.
“Third. That, to avail himself of the statute, the defendant was required to prove that, deducting all the times of his absences from, and residence out of, the State, he was within the State ten years after the recovery of the judgment and before the commencement of this suit.
“Fourth. That, to avail himself of his temporary returns, he was required to show that his return was actually known to the plaintiffs, or so open and notorious as connected with some locality that the plaintiffs, by using ordinary diligence, could have known of them.”

This charge was apparently approved, and the judgment for plaintiff was affirmed.

The rule of the cases cited has not been questioned • — certainly has not been changed — by any decision to which our attention is directed. Applied to the facts, it is at once evident that the period of defendant’s residence in the State, if he resided here at all, is of controlling importance. We cannot say, as matter of law, that the profession of an actor, who usually, during the theatrical season, travels from State to State, preeludes his having a home at a particular place, the fact of which may be so notorious as to be discoverable by a creditor residing in the same State. The phrase “and reside out of the State,” in our statute, was interpreted in Campbell v. White to import,

“something so distinct, definite, and fixed as to constitute the party’s home the place of permanent abode, which, whenever left temporarily or on business, the party intends to return to, and on returning to, is at home.”

There is no reason for giving the term “reside in the State” a different meaning. There was testimony from which a jury might have found that defendant had such a home in Detroit from the spring of 1905 until suit was begun. There was testimony sustaining plaintiff’s theory of a continued nonresidence of defendant.

It is said by counsel for appellee that the court expressed an intention of submitting the question to the jury, and was deterred from so doing by counsel for defendant. The court made a statement of what he understood the testimony to show, and, to some extent, his views of the controlling rules of law. In doing so he eliminated defendant’s theory of the effect of defendant’s residence in the State from and after 1905. Later, in a colloquy, the court having expressed the opinion that defendant was bound to make it appear that he had been in the State a consecutive period of six years, or a number of times aggregating six years, before suit was begun, and after the demand accrued, and that this might be a question for the jury, counsel for defendant said that the testimony undoubtedly failed to establish either fact. But he also said in that connection :

“Now, talking about residence in Michigan, that is another proposition, but I understand that is eliminated.”

I think it sufficiently appears that counsel for defendant did not deter the court from submitting the question of defendant’s residence in the State to the júry. His remarks were made with reference to rulings which treated the question of residence as of no importance, rulings which rejected his defense, even if the fact of defendant’s residence in Detroit, as claimed by him, was established. This view of the position of counsel is further sustained by the form of his requests to charge which were refused. I think, therefore, he is entitled to urge in this court that the rejection of his theory by the court below was error, and that his theory called for a submission of the question of defendant’s residence to the jury.

The judgment is reversed, and a new trial ordered.

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


source: Caselaw Access Project

license: Public Domain

text:
    PALMER v. LOCOMOTIVE ENGINEERS’ AND CONDUCTORS’ MUTUAL PROTECTIVE ASSOCIATION.
    Insurance — Indemnity Policy — Loss oe Employment — Breach oe Conditions.
    Under a mutual benefit certificate providing for insurance against loss of employment in cases other than discharge for absence from engine, use of liquors and similar reasons, and referring to the application which contained the clause, “that the cause assigned by my employer for suspension or discharge shall be the sole basis of determining the liability of the association,” plaintiff was not entitled to recover on his own showing that the employer discharged him for being absent from his engine and visiting saloons, and lie was properly prevented at the trial from attempting to prove that the assigned cause was untrue; that he had been absent with leave and visited certain saloons on a mission of his superintendent.
    Error to Ottawa; Cross, J.
    Submitted October 8, 1915.
    (Docket No. 30.)
    Decided December 21, 1915.
    Assumpsit by Edward R. Palmer against the Locomotive Engineers’ and Conductors’ Mutual Protective Association on a benefit certificate. Judgment for defendant on a directed verdict. Plaintiff brings error.
    Affirmed.

      Lillie & Lillie, for appellant.

      Arthur P. Hieks, for appellee.
   Ostrander, J.

The certificate or policy sued upon contains the following:

“This certificate does not include nor cover any suspension or discharge not in the nature of a penalty or measure of discipline, nor any case arising from or traceable to any of the following causes or conditions, viz.: Absence from engine while in charge of same; nor for any act or acts while not in charge of your en,-gine; use of intoxicating liquors; soliciting his own discharge or suspension; striking; garnishment; fighting; ■assaulting superior officers; knowingly disobeying orders or rules of traffic conditions; disregarding national or State laws; being pensioned; personal injury; physical disability or old age.”

The certificate purports to have been issued in consideration of the warranties and representations made by the plaintiff in his application for membership, and ■a copy thereof was attached. In the application the plaintiff agreed:

“That the cause assigned by my employer for suspension or discharge shall, be the sole basis of determining the liability of the association.”

The cause assigned for plaintiff’s discharge was—

“for frequenting saloons, also leaving his engine 2381 at Grand Haven on the night of August 23d for two hours without permission from his foreman.”

In his notice of claim plaintiff specified:

“I was discharged for leaving my engine and visit- ' ing saloons.”

Notice of the indicated defense was given by defendant with its plea. Plaintiff sought, by recital in his notice of claim and by testimony upon the trial, to. show that he left his engine by permission-and visited, saloons while off duty to get a certain man for investigation which was private with the superintendent; in other words, sought to show that the cause assigned by the employer for his discharge did not exist. The testimony was excluded, a verdict for defendant directed, and a motion for a new trial was overruled. Upon the authority of Stitt v. Protective Ass’n, 177. Mich. 207 (142 N. W. 1110), it is held the rulings were right.

Judgment is affirmed.

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


text:
    GERMAIN v. LOUD.
    1. Sales — Lumber—Contracts—Destruction.
    Where plaintiff’s decedent agreed to buy certain lumber from the defendant, and nothing was expressed in the correspondence as to the time when title should pass, but an inspection, to be paid for by both parties was required, and part of the lumber was delivered upon ' inspection, as agreed; the contract providing that decedent should take all the lumber of a quality described or named, and where the parties recognized in subsequent dealings that the lumber had all been sold and several letters passed in which they assumed that plaintiff was the buyer, and plaintiff advanced a considerable part of the purchase price, and where it appeared that the lumber had been piled separately, the vendee was not, as matter of law, entitled to recover advances made before it was burned, but the issue was one to be determined from all the acts of the parties and their dealings subsequent to the claimed sale.
    2. Same^-Evidence.
    In the absence of a specific arrangement concerning the title to the property, in a contract of sale, the question whether title has passed is usually an issue of fact, to be determined from’ the acts done and promises made and from all the attendant circumstances.
    3. Same — Question of Fact — Directed Verdict — Trial—Conduct of Counsel.
    Both attorneys requesting the court to decide the issue as one of law, the trial judge did not err in determining the issue and in not submitting the point to the jury, although different inferences were admissible from the testimony.
    Error to Saginaw; Gage, J.
    Submitted October 6, 1915.
    (Docket No. 17.)
    Decided December 21, 1915.
    Assumpsit by Louise A. Germain, as executrix of the estate of Edward Germain, deceased, and another, against Henry N. Lond and others, copartners, doing business as Henry N. Loud & Sons, for money had and received, etc. Judgment for defendants on a directed verdict. Plaintiffs bring error.
    Affirmed.

      Weadock & Weadock, for appellants.

      Henry, Henry & Henry, for appellees.
   Ostrander, J.

There was a contract between defendants, as vendors, and plaintiffs’ decedent, as vendee, for the purchase and sale of certain lumber. The vendee made an advancement upon the purchase price. The lumber burned. The vendee sued to recover his advancement. The vendors claimed that the title to the lumber had passed to the vendee, and asked for a judgment for the balance of the purchase price. Upon the trial of the cause, both parties having rested, counsel for plaintiffs and counsel for defendants each, moved for a peremptory instruction. The court thereupon said:

“I understand the position of the parties on both sides. The plaintiff in this case claims his position is that under the facts in this case it is purely a question of law for the judge, and it is the duty of the judge to direct a verdict for the plaintiff; and the defendant, on the other hand, contends that it is purely a question of law, and that it is the duty of the judge to direct a verdict for the defense on the conterclaim. If that is not your position, I want you to state it.”

Counsel for both parties said that their position was as stated by the court. The court expressed the opinion that the question of the intent of the parties was involved, and was a proper question for a jury. At considerable length — the jury being absent — he went over portions of the testimony and referred to authority, concluding by saying:

“That is the reason I have suggested to you before that I thought that really this was a case for the jury, and not the court. But, as you have put it up to the court, I am disposed to decide it.”

The jury having returned into court, he instructed them to return a verdict for defendants, and in doing so said, among other things:

“After examining all the correspondence in this case, and the memorandum of agreement made and offered' in evidence here, and all the testimony in the case, I am of the opinion that it was the intent of both parties that all the 4 — 4 lumber, Norway, and all the 5 — 4 Norway at Loud’s mill was sold to Germain, and the consequence is that at that time it was the duty of the Louds, under the memorandum of agreement, to load that lumber on the cars, but it was for Germain to pay the freight and to pay for the lumber.”

Much else was said by the court which makes it plain that he regarded the question to be decided as one of the intention of the parties, to be ascertained from all of the testimony. In this court the plaintiffs, appellants, affirm that:

“There is no evidence in the record that it was the intention of the parties that the title to the lumber in question would pass to the plaintiff'Germain, until it had been inspected, the kind, quality, quantity, and price ascertained, and the lumber actually delivered f. o. b. cars Au Sable.”

And in the reply brief say:

“We contended in the court below, and contend here, that upon the evidence the court should have directed a verdict for plaintiff; but if we were wrong in this position, and the court was satisfied that there was an issue of fact in the case which should be submitted to the jury, we insist it was his duty to submit such question to the jury, notwithstanding the attorneys for the respective parties did make the claim for their respective clients that the verdict should be directed in their favor. Notwithstanding the claims of counsel, •the court still has a duty to perform according to its best judgment, and if the court was satisfied that the case should be submitted to the jury, it cannot justify directing a verdict for the defendants, because the plaintiff, too, had asked a verdict directed for it. We now claim that if, on all the evidence in the case, this court should find there was a question of fact which should have been submitted to the jury, the judgment should be reversed.”

The errors relied upon are based upon the charge and the direction of a verdict for defendants.

Unless the parties to a contract for the sale of personal property, not paid for and not delivered, have specifically agreed that the title thereto shall or shall not pass, the question whether title has passed to the buyer is one of intention, to be gathered from all the circumstances attending the bargain. It is a question of fact, to be answered by construction of whatever agreement was made. In construing the agreement of the parties, the courts indulge various presumptions, none of them conclusive, and it sometimes occurs, the terms of the contract and the acts of the parties with reference thereto and to the subject-matter being undisputed, that the courts are able to and do determine the question. Instances are: Whitcomb v. Whitney, 24 Mich. 486; Carver v. Sherman, 172 Mich. 264 (137 N. W. 519); Tyler Lumber Co. v. Charlton, 128 Mich. 299 (37 N. W. 268, 55 L. R. A. 301, 92 Am. St. Rep. 452). There is no occasion to attempt to restate or to amend the statements of the controlling rules found in Lingham v. Eggleston, 27 Mich. 324, and in Byles v. Colier, 54 Mich. 1 (19 N. W. 565).

In the case at bar, there was no specific agreement about the title to the lumber. The intention of the parties, a fact, is to be found in the terms of the bargain they made, the circumstances attending its making, and the acts of the parties. There is no occasion to set out in detail the history of the transaction. It covers a period of more than two years. Early in the year 1909 a contract was made for the purchase and sale of 'all o'f certain lumber, dry and in piles. Telephone conversations regarding the arrangement occurred, but because of the death of Mr. Germain before trial what was said is not before us. For various reasons the plumber was not all of it shipped, and some of it was sold to other parties by the vendors, with the approval and presumably by the direction of the vendee. But, repeatedly, both parties to' the agreement recognized the fact that the lumber, the quantity having been estimated, was sold to Mr. Germain. In 1911, under date of February 6th, a writing was made, signed by both parties, reading as follows:

“To H. M. Loud Sons’ Company:
“Agreeable to conversation we had with Mr. E. F. Loud, we learned that there is still about 80,000 feet or less of 4 — 4 Norway and tamarack, about 167,000 5 — 4 Norway, with a small percentage of tamarack, at the mill left unshipped on purchase made some time ago, which was purchased 'at the price $14' for the common and better Norway, $10 for the culls, Norway, and $12 common and better tamarack,' and $8 for the culls — above prices f. o. b. Au Sable, Michigan. We agree to pay $2,000 on or before May 1, 1911, and balance to be paid on or before June 1, 1911, and, if lumber is not all shipped, settlement to be made based on average value of lumber, based on the above prices, and final adjustment to be made when lumber is all shipped. It is also understood that we will use our very best efforts to ship this lumber at an early period. In the event of lumber being moved, payment to be made on 10th of month following, net.”

An inspector was agreed upon, and he inspected whatever lumber was shipped after this agreement was made; each party paying one-half the inspection fees. Evidence of the intention of the parties is to be found in the agreement above set out, and in the fact that it was made after the vendor had insisted upon some completion of the original agreement. Under date of January 13, 1910, the vendors (defendants) had written to the vendee (plaintiffs’ decedent) as follows:

"Last March we entered your order for all the 4 — 4 and 5 — 4 Norway which we had in stock at that time. This order included the 4 — 4 and 5 — 4 tamarack that was filled in with the Norway. On this order we shipped 107,345 feet of 4 — 4 and 99,774 feet of 5 — 4. There still remains unshipped, as near as we can estimate, 216,000 4 — 4 and 167,000 of 5 — 4. You stopped us shipping in May last, and, although we have repeatedly asked that you allow us to resume shipment, you have for one reason or another refused to allow us to do so. We have for a long time felt that you were abusing our good nature in this matter, and, while we have tried to have patience, we have arrived at a point where we feel that something must be done. We must either have a check for the lumber, or you must take it in at once. Otherwise we must take some steps to obtain our rights, whatever they may be. Please let us hear from you at once, and oblige.”

No objection was made to the recitals contained in this letter, but the answer, dated January 22, 1910, was:

"Replying to yours of the 13th, regarding the 4 — 4 and 5 — 4 Norway and tamarack, which you have for us, beg to ask what percentage of tamarack there is in this stock, and when the lumber was shipped, and, would you be willing to separate the Norway from the tamarack in loading? We understand from your letter that the 216,000 feet of 4 — 4 and 176,000 feet of 5 — 4 covers both the Norway and tamarack.”

There was further correspondence. The vendors again insisted upon shipping orders, conversations were had, and finally the written memorandum of agreement was made. Under date May 29, 1911, the vendee paid the $2,000. Further evidence of the intention of the parties appears. The original order given by the vendee was for all of the lumber described in a memorandum made by the vendors’ agent and submitted to Mr. Germain. The estimated quantity was stated. This lumber was piled separately from other lumber — was identified. Before February 6, 1911, the vendee had received and paid for a considerable quantity of it. He therefore knew its quality. What remained to be done, after February 6, 1911, was to in-. ,spect the remainder as it was loaded upon cars, and,' if it was not shipped, it was nevertheless to be paid for' by the vendee, as per the memorandum of agreement.! Prices had been agreed upon; an inspector mutually selected. Nothing was left to further agreement; nothing but to load the lumber as it was called for by the 'vendee was to be done by the vendors.

I. am of opinion, therefore, that there was evidence that it was the intention of the parties that it was understood and agreed that title to the lumber passed to the vendee and that the understanding was mutual before and after February 6, 1911. While, perhaps, different minds might be differently affected by the testimony which is substantially undisputed — diferent minds might draw different inferences — counsel for both parties requested the court to decide the controlling question, and it was not error for the court to do so. Culligan v. Alpern, 160 Mich. 241 (125 N. W. 20). Whether we say it was decided as a question of law or one of fact is not very material. Counsel for appellants insists here that a verdict should have been directed for his clients. That it would have been error to do so, I have sufficiently pointed out.

The judgment is affirmed.

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


author: Stone, J.

text:
    HENRY v. MICHIGAN CENTRAL RAILROAD CO.
    Railroads — Duty to Look — Contributory Negligence — Infants —Personal Injuries — Knowledge of Danger.
    Plaintiff, a boy of nine years and six months, who looked only one way in crossing defendant’s three tracks, and, after a train had passed on one of them, attempted to go across and was struck by a train that approached from the other direction, where he had passed over the crossing ■ frequently, knew the danger at the same and realized that it was his duty to look out for trains, etc., could not recover for the injuries that he sustained; he should have been held guilty of contributory negligence by the trial court, as matter of law.
    Error to Bay; Connine, J., presiding.
    Submitted October 19, 1915.
    (Docket No. 8.)
    Decided December 21, 1915.
    Case by John E. Henry, by his next friend, against; the Michigan Central Railroad Company for personal, injuries. Judgment for plaintiff. Defendant brings, error.
    Reversed; new trial refused.

      George M. Humphrey (Cooley & Hewitt and Humphrey, Grant & Humphrey, of counsel), for appellant.

      Defoe, Hall & Converse, for appellee.
   Stone, J.

This is an action on the case to recover damages for injuries sustained by the plaintiff, an infant, suing by his next friend. The injury is alleged' to have been caused on February 25, 1914, by the negligence of the defendant in the operation of one of' its enginés, over Mosher street crossing, in the city of Bay City, while plaintiff was crossing defendant’s tracks, about 1 o’clock p. m. of that day.

In the court below plaintiff had a verdict and judgment for $1,100, and the defendant has brought the case here for review upon a writ of error. At the time of the injury, plaintiff was 9 years and 6 months of age, and was attending the Corbin School in said city. He was a bright, intelligent boy. At the time, he was on his way to school with his younger brother, who was then about 8 years old. Plaintiff’s home was some distance to the east of Mosher street crossing, and the Corbin School was six blocks to the west and south, the other side of the tracks; so that he could not go from his home to said school without crossing defendant’s tracks. His home had been in the same place for 6 or 7 months. After he started, when school opened in the fall, he continued to go from his home to the school twice a day, going home for dinner, a part of the time going over the Mosher street crossing and part of the time over the State street crossing farther to the south and east. The Mosher street route was about a block the shorter. Plaintiff had crossed back and forth, just as he was doing on the day of the accident, many times, was entirely familiar with the surroundings, and had been warned by his mother concerning this particular crossing, before this day.

Mosher street crossing is in West Bay City, some distance north of the West Bay City depot, and there were three sets of tracks of the defendant’s railroad over it, running approximately northwest and southeast, with about 8 feet between each set of tracks, the most easterly being the north-bound track, the middle being the south-bound track, and the most westerly track being a siding. King street, lying east of the place of the injury, runs approximately north and south, and at right angles to Mosher street.* The railroad tracks angle across both streets, and cross King street about 150 feet to the south of the Mosher street crossing, it being about 87 feet from the center of the intersection of the two streets to the most easterly rail on Mosher street, and about 107 feet from the same point to the most easterly rail on King street; and on that triangular piece of ground, bounded on the north by Mosher street, on the east by King street, and on the south and west by the railroad tracks, there is nothing except a pole upon which the sign “Railroad Crossing” is placed. The elevation of the tracks all along there is from 3 feet to 3 feet 6 inches higher than the elevation of King and Mosher streets at the point of their intersection, there being a rise in the grade of each street from the point of their intersection to the crossing of each with the tracks. The tracks run approximately straight for a considerable distance north of Mosher street, and perfectly straight for a distance of more than three blocks to the south, where there is a slight curve to the west, and all three of these tracks are used almost continuously for the operation of trains, backwards and forwards, between the yards and the depot. Mosher street runs approximately east and west, and is unpaved. Upon the day in question, some four blocks before reaching the crossing where the plaintiff was injured, he and his brother passed what is called the French School, and the schoolboys at that school threw snowballs at the plaintiff and his companion. The plaintiff and his brother threw snowballs back, and the boys from the French School began chasing the plaintiff and his brother, and chased them from the school up to the tracks, the boys following the plaintiff and his companion as far as King street, and some of them farther. Plaintiff testified that he ran up to the tracks and the boys were still behind him until he arrived at the tracks.

The line of vision of a person approaching the tracks on Mosher street, after reaching the intersection of King and Mosher streets, is right down King street to the south, and a view of the tracks where they cross the east line of King street southerly of the center of Mosher street crossing was unobstructed. As a person proceeded west on Mosher street toward the tracks, the line of vision was across this open, triangular piece of ground. The only claimed obstruction to plaintiff’s view was a bank of snow which extended about 6 or 7 feet east of the track, and to the south of the team track or traveled portion of the highway in Mosher street.

Just prior to the accident an engine pulling some cars on the middle track ran over the Mosher street crossing at from 10 to 15 miles an hour, from the north toward the depot on the south; and the engine which struck the plaintiff, having pulled a train from Detroit to Bay City, and having left the coaches in the West Bay City coachyard, was proceeding north on the most easterly track at from 6 to 14 miles an hour to the roundhouse, running with the engine tender foremost.

The noise of the approaching engine was distinctly heard by two of the plaintiff’s witnessés, just prior to the accident, when they were from 50 to 100 feet farther from the engine than was the plaintiff. These two engines, the one running on the south-bound or center track from the north toward the depot, and the engine which caused the injury to the plaintiff running with the tender foremost from the depot toward the north on the north-bound, or most easterly track, passed each other just to the south of Mosher street crossing, or somewhere between that crossing and the King street crossing opposite this triangular piece of vacant land. The next street east of King street, and parallel with it, is State street, and the next street south of Mosher, and parallel with it, is Hart street.

A synopsis of the testimony of plaintiff upon his direct examination will show what he claims to have been the facts. The plaintiff testified that on this occasion, on going back to school after dinner, he went down State street until he came to Mosher street, and then went down Mosher. He testified that there were three tracks at the Mosher street crossing; that he saw an engine on that occasion as he went toward the crossing, and that, as the engine passed him southerly, he was right by the edge of the snowbank, about 6 or 7 feet away from the track — easterly track; that engine went toward State street; that he stood there and waited until it went by, and then began to cross; that when the engine went over the crossing he watched it a rod or more, and then went across; that he couldn’t see it go any farther than where he watched it, because of the snowbank; that he was on the south side of the road; that when he got to King street, from there on until the crossing was reached, there was no sidewalk on the north side of Mosher street, and so he went over on the middle of the road. He testified that he did not walk on the sidewalk on the south side because it was all snow banked up; that he stood while waiting there about in the wheel tracks, a little on the south side; that he saw no other engine coming at that time, and he started ahead. He did not hear any engine come, or any bell or whistle; that he did not see what struck him. The undisputed evidence shows that the plaintiff was struck and knocked down at that point by the northwest portion of the tender just as he was passing off the west rail of the east track, and was thrown to the west and outside the track. Upon the cross-examination of the plaintiff he testified:

“Q. You crossed this crossing there on your way to school a lot of times, had you not?
“A. Yes, sir.
“Q. Going back and forth just as you were on this day?
“A. Yes, sir. There were three tracks there.
“Q. Had you ever seen trains going over there and had to wait for trains before?
“A. Yes, sir.
“Q. Did you very often have to do that?
“A. Yes;'quite often.
“Q. How was it, are there lots of trains that go across the tracks there or only a few,
“A. Oh, there is a few, but pretty nearly every time I went there I would have to wait.
“Q. Pretty near every time you would go along there there would be a train around there somewhere, would there? On one of those three tracks?
“A. Yes, sir. I didn’t notice whether the trains ran on only one track or on all three tracks, but I remember seeing them on different tracks, not this particular day, but I mean any time.
“Q. You do remember seeing them on different tracks?
“A. Yes, sir.
“Q. Sometimes they would be on one, and sometimes ' on the other?
"A. Yes.
“Q. Pretty near every day when you would go along there you would see a train on some track?
“A. Yes, sir.
“Q. Did you see trains run both ways there when going by, I don’t mean this day, but when going to school there, would sometimes a train go one way and sometimes another?
“A. Sometimes there was. And sometimes they would all be going one way. This crossing is about four blocks from the French School. * * *
“Q. Had you ever noticed when you were going to school that an engine went up those tracks ?
“A. Yes, sir.
“Q. Have you seen that engine before on some days, that is, an engine without any cars?
“A. Yes, sir.
“Q. When you went along Mosher street at about 1 o’clock on your way to school, did you almost always see that engine go by there?
“A. Almost.
“Q. That is from the depot up to the north?
“A. Yes, sir. * * *
“Q. And that went by pretty near every day when you went by,- didn’t it?
“A. Yes, sir.
“Q. When you were on your way back to school?
“A. Yes, sir.
“Q. Did you usually go back to school about the same time every day?
“A. Yes, sir; I went back about the same time every day, and I tried to get there to be at school when the first bell rang. I was a little late on this day. I was quite late. We was a little late getting my dinner, I guess.
“Q. Were you in a hurry this day?
“A. Yes, sir. When I went by the French School the school boys were out around the school.
“Q. Did they throw snowballs at you?
“A. Yes, sir.
“Q. Did you throw snowballs back at them?
‘‘A. Yes, sir. My brother was with me and helped me in my snowball fight with the boys at the school, and we threw snowballs back and forth the two of us, with the boys at the French School. , I didn’t know how many of those boys there were, but there were more than two. There was a whole big gang of them.
“Q. Were they chasing you?
“A. Yes, sir; they were chasing me.
“Q. And throwing at you?
“A. Yes, sir.
“Q. How far did they chase you?
“A. They chased me from the school pretty near to the tracks where I got hurt. We fought them off awhile and then had to run away from them. There were too many of them. When I ran away from them I ran until I came to Mosher street and then I turned down Mosher street.
“Q. Did you run down Mosher street?
“A. Yes, sir; and they followed me as far as King street, and then they began to go back. Some of them came farther than others.
“Q. They chased you farther. How far did you keep on running? Did you run clear up as, far as the tracks?
“A. I run clear up until I had to wait for the switch engine.
“Q. You run clear up to the tracks, did you?
“A. Yes. When I got up there, there was an engine that was going across the tracks, so I had to stop and let it go by.
“Q. Do you know whether'the boys were still after you or not at that time?
“A. They was after me then, too.
“Q. They were after you while you were waiting there ?
“A. Yes, sir; I started on again.
“Q. Did you think they were still after you?
“A. No, sir; I did not.
“Q. They went back while you were waiting for this engine, did they?
“A. No, sir; I didn’t think they was after me yet. I didn’t think so.
“Q. But you were in a hurry to get back to school at that time ?
“A. Yes, I was late from what I usually was, so I wanted to get back there as quick as I could. When that engine went by that I had to wait for, I did want to hurry up and get to school as quick as I could.
“Q. You wanted to hurry right along on down?
“A. Ye's, sir.
“Q. You know that the tracks there, when you come up to those tracks that you have to be careful and look out for trains, don’t you?
“A. Yes, sir.
“Q. You would have to do that every time you went across the track, had to be careful ?
“A. Yes, sir. * * *
“Q. If a train hits you or a car or engine hits you, you know that it is apt to be a serious injury, don’t you ?
“A. Yes, sir.
“Q. You know that it might even kill you?
“A. Yes, sir.
“Q. You knew that at the time, on this day, you knew that if one of those engines or a car hit you, it would hurt you very badly, probably, didn’t you ?
“A. Yes, sir.
“Q. Now, going to school, when you got to those tracks did you use to think that you would have to be careful at those tracks so you would not be hit?
“A. No, sir; I didn’t.
“Q. As a general rule when you came down there did you walk down those tracks without looking, or would you be careful not to get hit.
(‘A. I was looking to the north when I got hit.
“Q. I don’t mean this day, but generally when you came along?
“A. Yes.
“Q. You would not walk right out onto the tracks without looking?
“A. No, sir.
“Q. You knew you had to look, so as to be careful and not get hit, didn’t you?
“A. Yes, sir.
“Q. You knew that trains go by there quite often?
“A. Yes, sir * * *
“Q. Whereabouts was that snow up there?
“A. Four or five feet from the track, just so the train could get by.
“Q. Is that where you were standing, did you walk up and stand on this snow?
“A. I stood on this side of it. Right on this side of the snow as the train went by. I don’t know which track the first train that went by was on.
“Q. Do you know whether it was on the track nearest to you or on the middle track or on the track farthest away?
“A. I think it was on the track nearest to me. And I stood out on the road and let the train go by nearest to me. That train was coming from the north and going towards the south. There were no cars with that engine. That was just an empty engine, going as fast as a man could run. That would be quite a little faster than I could run. * * *
“Q. When this engine went by you had to wait for just a minute?
“A. Yes, sir
"Q. And then you started right up ?
“A. Yes, sir.
“Q. Which way did you look when you started?
“A. I looked toward the north.
“Q. And how far had you gone when you got hit, do you know?
,“A. I don’t know how far I went.
“Q. Did you see what hit you at all?
“A. No, sir; I did not.
“Q. When this engine went by you looked up toward the north and .then started ahead, and the next thing you knew you were hit?
“A. Yes, sir.
“Q. Is that right?
“A. The next thing I knew I fell to the ground. The next thing I knew after that I remember somebody carrying me in the house.
“Q. When you started up did you look down toward the south at all, or did you keep looking up toward the north all the time?
“A. I looked up toward the north.
“Q. You didn’t look toward the south at all?
“A. Until the train got by, I watched it go by.
“Q. The engine?
“A. Yes.
“Q. That was before you started up, wasn’t it ?
“A. Yes, sir.
“Q. Before you started up you saw this engine go by?
“A. Yes, sir.
“Q. If that was running faster than a man could walk, it would not take it very long to run down about a rod or so, would it?
“A. No, sir; it goes pretty quick.
“Q. I understand you to say that you watched it while it went about a rod?
“A. Yes, sir.
“Q. Now you just glanced down toward the south and then turned and looked up toward the north?
“A. Yes, sir.
“Q. And then you kept looking up toward the north until you got hit?
“A. Yes, sir.
“Q. So you did not see this engine coming from the south at all, did you ?
“A. No, sir. * * *”

On redirect examination the following occurred:

“I said I watched this first engine go by me and toward the south.
“Q. How far could you see that after it went by? Could you tell by something here in the room so that the jury would know about how far you could see it after it went by you?
“A. From here to 3mu or farther. (Here counsel agreed that the distance was 18 or 20 feet.)
“Q. Why couldn’t you see any farther south than that?
“A. Because there was a big snowbank there. I stood there until the engine went by and then started across. After I stopped watching the engine at the south and started to go across the track, I looked then toward the north.
“Q. Had you looked back again towards the south when the engine hit you?
“A. No, sir.”

On recross-examination he testified:

“There were no trains up to the north when I looked up to the north. It was all clear.
“Q. Was there anything you, were looking at up there?
“A. No, sir. When I started, I started to walk, and I kept on walking, walking fast. * * *
“Q. When you went up to this first train before you stopped running, how far did you run, how close to the first train did you stop?
“A. Well, I ran about six or seven feet away from the first track.
“Q. So the engine passed up right in front of you, did it?
“A. Yes, sir.
“Q. And as quick as that got up you started right on, did you ?
“A. Yes, sir.”

We have quoted at great length from the testimony of the plaintiff in order to present the situation as he described it. The situation just prior to the happening of the accident was fully described by the witness Rosebush, a boy about 19 years of age, who, with a comrade, was between 50 and 100 feet north of Mosher street walking down the center track toward the place of the accident. His testimony is also lengthy, and we only quote briefly from it:

Direct examination:

“Q. About how far would you say you were from Mosher street crossing when the accident occurred ?
“A. About fifty feet.
“Q. Did you see any other train or engine at that time, besides the one that hit the boy?
“A. Yes, sir..
“Q. Tell us what you saw.
“A. I saw one going up on the main track south, going south on the main track.
“Q. When you speak of the main track, which track do you mean?
“A. The center track.
“Q. How many tracks across Mosher street at that place?
“A. Three.
“Q. And the main is the center?
“A. The main is the center.
“Q. Did you see this little Henry boy before he was hurt?
“A. Yes, sir.
“Q. Did you see him at the time this engine went south?
“A. Yes, sir.
“Q. Where did you see him?
“A. He was- coming up the hill from right behind on Mosher street, coming up the hill. There is a kind of a hill there before you go over the track. There is a grade runs up to the track above the level of the street. At the time this engine passed him he was about twenty feet from the track, as near as I could judge. I was on the west side of the main track, so I would be upon the opposite side of the engine from him. He would be on the east side and I on the west side, and the engine would pass between us. I saw him after the engine passed. He was on the south side of the road, on the side towards the sidewalk, out where the teams go. He was in the driveway towards the sidewalk, the south side.
“Q. What did he do after this engine went south? '
“A. He started to walk across the track.
“Q. How far did he get?
A. On the west side of the engine when it hit him. He got on the west side of the first track he would have to cross.
“Q. Did you see the engine that hit him?
A. Yes, sir. It came from the south, backing up, on the first track on the east side. That would be on the track nearest to him. I think it is called the northbound. The engine had no cars. It was just backing up with the tender on the back end, at the north end, headed toward the south or State street, and moving with the tender toward the north. * * *

Cross-examination:

“Q. If you were standing on any one of those three tracks, or a matter of four or five feet outside of either outside track, can you still see down there five blocks and see an engine coming, if you know?
“A. Yes, sir. There is a curve on the other side of State street. From where the accident took place that would be about three blocks before it starts to curve. So for two or three blocks south of where the accident took place you can see right straight down. It does not interfere with your sight at all. The distance between the tracks is about eight feet. That is, between each set of tracks. I was about fifty feet north of the crossing and saw these two boys approaching the crossing coming toward the tracks. They were coming west. They were on the east side of the tracks, coming from my left-hand side. They was on the street where the horses travel.
“Q. You spoke about their coming up the hill. How much of a hill was there there?
“A. Oh, it is a small grade, a small slant in the road, it isn't very much. They were just coming up the slant, up to the tracks when I first saw them. _ * * *
_ “Q. Whereabouts was it, that engine coming from the depot, where did it pass the one going toward the depot?
“A. That passed that one just about right on that other crossing. There are two crossings very near together there you know. They passed on the first crossing just a short distance south of the Mosher street crossing. * * *
“Q. As they came up, did you see whether those boys had stopped, or were they still coming right on ?
“A. I didn’t notice them stop. I seen the one — just the minute that engine got by he began to look north and he started to walk across the track. When I was up about fifty feet north of the place of the accident I saw this train go by from the north to the depot. I had seen the boys before that time. I seen them before that engine went by me, on Mosher street. They was walking, when I saw them, toward the tracks. Then when the engine going to the depot went by it shut off my view of the boys. Then thé next time I saw them the boys were walking.
“Q. Did you see them stop at all from that time on until this little boy got hit?
“A. No; I didn’t see them. When I was looking at them before the train to the depot went by they were walking towards the tracks, and when I next looked, they were still walking towards the tracks.
“Q. He walked right up onto the track that was farthest from you, did he?
“A. Yes; sir. That track farthest over to my left.
“Q: And he was looking up toward you, you say?
“A. Yes, sir.
“Q. Did you see him look down the other way at all ?
“A. No, sir.
“Q. Was his head turned very much, was it looking right straight toward you or looking across the street?
“A. He was looking right straight towards the north.
“Q. And he looked that way all the time that you saw him, did he?
“A. Yes, sir.
“Q. And he continued to walk right onto the track that was farthest to your left ?
“A. Yes, sir.
“Q. Which side of the tender was it that hit him, the side nearest to you or farthest from you ?
“A. Nearest to me.”

Describing the snowbank alluded to by the plaintiff, this witness said:

“It went about six or seven feet I think down toward the road, toward the east. It was just a pile at the corner like where they shoveled it off the tracks, it looked to me. Put into a pile right at the corner of the street and extended six or seven feet from east to west.
“Q. Back of that was there any snow piled?
“A. I didn’t notice any.
“Q. Was there anything that you, saw except just the level road there?
“A. No, sir.”

This evidence'was corroborated by that of the witness McComb, a boy 13 years of age at the time of the trial, which occurred about 8 months after the accident. This testimony is nowhere disputed, except as to the stopping. There the plaintiff differs from this witness. Many questions are raised and discussed by appellant, which we shall not find it necessary to consider. The only question which we shall discuss is that of plaintiff’s contributory negligence, which question is properly raised upon the record. We might say in passing that there was no evidence of gross negligence of the defendant.

At the close of the plaintiff’s evidence, the defendant moved the court to direct a verdict in its favor for many reasons, among them being that plaintiff’s undisputed evidence conclusively showed that he, himself, was guilty of negligence. In denying the motion the court said:

“In regard to the direction of a verdict, I am quite free to say that if this had been an adult who was injured there, I would consider it my duty to direct a verdict, and I am not absolutely’clear whether it is not my duty to direct a verdict as this case stands, considering the age and intelligence and capacity of the boy.” '

It is very evident from this uncontradicted testimony, that from the time the plaintiff reached the intersection of King and Mosher streets until he reached the easterly end of the snowbank described by him, his view to the south was unobstructed, and we have his-own word for it that while traversing that space he-did not look in that direction. He was entirely familiar with the crossing, having used it daily during all that school year. He knew the number of .tracks, and he-knew that trains ran almost constantly on all of those-tracks, in both directions, and that trains might be expected on either track, or any track at any time.' He knew that it was his duty to be careful. He. had been warned by his mother, and he knew that he had to use care in making this crossing and watch for trains. He had before waited for trains to pass, and had watched his time to cross in safety. He also testified that he-knew that almost every day, when he returned to school after dinner, an engine, without cars, ran from the depot north, just as this engine was running on this day, and he had seen it many times before. According to his own witnesses, he looked only in one direction, that.was north. According to his own witnesses he did not stop, but he claims that he did. But, taking the evidence in the view most favorable to the plaintiff as given in his testimony, it is his claim that he had been chased by the boys from the French School right up to the track where he had to stop and allow the train from the north to go by, that that went by pretty rapidly, and that he only waited for that and started forward again, in a hurry. The evidence is undisputed that there was a space 3 or 4 feet between the west end of the snowbank, described by the plaintiff, and the first rail of the east track. He was struck while passing off the west rail of the east track. He had this distance, at least, of unobstructed view. The plaintiff’s own testimony is that he stopped about 6 or 7 feetffrom the east rail. He walked this distance before being struck.

Upon this question of contributory negligence the following request, presented by defendant, was refused :

“I charge you that it was the duty of the plaintiff, upon approaching this crossing, and after arriving at a point where he could see engines approaching, to stop, look both ways, and listen, before attempting to cross the tracks, and that failure to do any one of the three will bar his recovery.”

In the case of Gardner v. Railroad Co., 97 Mich. 240 (56 N. W, 603), this court said:

“It was broad daylight, and, when within 5 feet of the north rail of the track, it is undisputed that the plaintiff could see 250 feet east along the main track. No one disputes that, if he had but looked, he certainly would have seen the train. It is evident, therefore, that he did not look, or, if he did, he saw the train, and carelessly attempted 'to cross in front of it; and in either case he was guilty of such negligence as to preclude a recovery.”

See, also, Kwiotkowski v. Railway Co., 70 Mich. 549 (38 N. W. 463); Brady v. Railroad Co., 81 Mich. 616 (45 N. W. 1110); Grostick v. Railroad Co., 90 Mich. 594 (51 N. W. 667); McGee v. Railway Co., 102 Mich. 107 (60 N. W. 293, 26 L. R. A. 300, 47 Am. St. Rep. 507); Brandy v. Railway Co., 107 Mich. 100 (64 N. W. 1056); Lau v. Railway Co., 120 Mich. 115 (79 N. W. 13).

In Brady v. Railroad Co., supra, this court said:

“A person about to cross a railroad track is bound to recognize the danger, and to make use of the sense of hearing and sight to ascertain, before attempting to cross, whether a train is in dangerous proximity. If he neglects to do this, and ventures blindly upon the track, it must be at his own risk;'and such conduct should be pronounced negligence by the courts, as matter of law.”

So, taking the plaintiff’s own theory of the case and viewing all of the evidence in the light most favorable to Mm, it is apparent that he proceeded from behind this claimed obstruction to his view, under such circumstances and with such knowledge of the situation, that his conduct was negligence as matter of law. That hiá injury could have been avoided cannot be doubted from his own statement. If the trial court was correct, and we think it was, that plaintiff’s own version of this accident clearly showed his own negligence, had. he been an adult, the only remaining question is whether or not the fact of plaintiff’s age, 9 years and 6 months, in view of his undisputed appreciation of the danger, understanding of the' situation and general conditions, can excuse his conduct, which would clearly have been negligence in an adult under the same circumstances. It seems to us that the following cases in this court are conclusive upon that subject: Ecliff v. Railway Co., 64 Mich. 196 (31 N. W. 180); Henderson v. Railway Co., 116 Mich. 368 (74 N. W. 525); Trudell v. Railway Co., 126 Mich. 73 (85 N. W. 250, 53 L. R. A. 271); Perego v. Railway Co., 158 Mich. 225 (122 N. W. 535); Knickerbocker v. Railway Co., 167 Mich. 596 (133 N. W. 504); Zoltovski v. Gzella, 159 Mich. 620 (124 N. W. 527, 26 L. R. A. [N. S.] 435, 134 Am. St. Rep. 752).

In the case lást above cited the plaintiff, a boy about ,13 years old, while playing, ran across the street without looking for any vehicle which might be coming, and was injured by an automobile driven by the defendant. Justice Hooker said:

“Was it contributory negligence in a 13 year old boy to become so engrossed in play as to run across a city street and immediately in front of an approaching automobile without thought to look to see whether such a machine or any other vehicle was approaching? In Henderson v. Railway Co., 116 Mich. 368 (74 N. W. 525), an 8 year old boy ran into the front end of a street car. In that case his view was more or less obstructed by a coal wagon or another car going in a direction opposite to that of the car that he ran into, and which wagon or car he ran behind in his approach to the track. Mr. Justice Montgomery said:
“ ‘It was but common prudence in crossing such a thoroughfare to look, not only for the car, but for any vehicle which might be coming. Injury would have occurred from collision with an ordinary wagon just as surely as from running into this car, and from the testimony of the lad himself he had intelligence enough at the time to know this. "Why, then, should it be left for the jury to say that he had not?’

“See, also, Ecliff v. Railway Co., 64 Mich. 203 [31 N. W. 180].

“While the injury to this child necessarily arouses the sympathy of all observers, it does not warrant the imposition of damages upon one who is not shown to have been blamable in the premises. A verdict in this case would be, as the judge well said, a bestowal by the jury of ‘charity from another man’s pocket.’ ”

See, also, Gibbs v. Dayton, 166 Mich. 263 (131 N. W. 544); Mollica v. Railroad Co., 170 Mich. 96 (135 N. W. 927); Harris v. Crawley, 170 Mich. 381 (136 N. W. 356); Weil v. Railway, 186 Mich. 614 (52 N. W. 959); Otto v. Railroad Co., post, 463 (155 N. W. 457).

This question was raised properly, and in our opinion is conclusive of the case. It is unnecessary to discuss any other questions involved.

The judgment of the circuit court is reversed, and no new trial will be granted.

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


text:
    SMEDLEY v. MASHEK CHEMICAL & IRON CO.
    Master and Servant — Personal Injuries — Volunteer — Existence oe Relation.
    On account of an alleged defective ladder that gave way with plaintiff while he was helping to put-out a fire on defendant’s premises, whither he had been drawn out of curiosity upon hearing the fire alarm, no recovery for injuries sustained in rendering such voluntary aid to defendant would be authorized. Plaintiff should not have been permitted to go to the jury, in the absence of any contract of hiring between the parties averred in the pleadings or shown by the proofs, and merely upon the theory that he was obeying orders of the superintendent of defendant’s plant; the burden resting on an employee to prove the contract of employment relied upon.

    Error to Delta; Flannigan, J.
    Submitted October 11, 1915.
    (Docket No. 41.)
    Decided December 21, 1915.
    Case by James Smedley against the Mashek Chemical & Iron Company for personal injuries. Judgment for plaintiff. Defendant brings error.
    Reversed; new trial refused.

      Keena, Lightner, Oxtoby & Hanley, for appellant.

      N. C. Spencer, for appellee.

      As to who is a volunteer, see note in 16 L. R. A. 861.
      On the liability of master for injury to volunteer, see notes in 22 L. R. A. 664, 13 L. R.'A. (N. S.) 561, 43 L. R. A. (N. S.) 187, L. R. A. 1915F, 1125.

   Stone, J.

The facts in this case are very simple. At the time of the injury complained of, the plaintiff was in the employ of the Stephenson Charcoal & Iron Company at Wells, Delta county. Its plant adjoined the plant of the defendant company. On June 15, 1914, at 2 o’clock p. m., the plaintiff had finished his work for the Stephenson Company and had gone home. He soon heard the fire whistle blow, and thinking there must be a big fire by the way they blew the whistle— a general alarm — he went over to the defendant’s plant, “through curiosity to see what was going on.” At that time the fire was burning along the tracks of the defendant company, and along the charcoal cars, and the sawdust cars. Plaintiff walked around among where the men were working at different points of the fire, and finally went up to what appeared to be the worst place at the time — the fire in the sawdust cars alongside of the storage house — and he saw them taking the hose around there, and he testified: “We tried to put out the fire.” Continuing, plaintiff testified:

“I saw a man by the name of Ballard, and Mr. Roberts. Ballard is the yard foreman, or at least a foreman of the Mashek Chemical Company, and I understood Mr. Roberts was general superintendent or superintendent of the Mashek Chemical & Iron Company. They motioned for me to come and take hold of the hose. Mr. Roberts motioned. I went and took hold and helped them for perhaps a half or three-quarters of an hour, as near as I can remember, at different points of the fire around the cars and engine house. Then they put a ladder up against one of the cars. I think, as near as I recall, Mr. Roberts did it, or at least some of the men that he told. I heard him tell them to put it up. It was put there to take the hose up.- The sawdust was burning inside the car, and they wanted us to go up there, as I understood, and get on top- of the sawdust, and wet it down around the edge of the car to keep the car from burning. Well, I was working.' There was another gentleman ahead of me, and I was helping him drag the hose up there. We had been together, and I was waiting for him to go on up the ladder and started up the ladder with the nozzle of the hose. He went up the ladder at Mr. Roberts’ direction. He went up the ladder to put water' on the sawdust. I don’t recall, now, who the man was. I wanted to- let the man go up the ladder, and I was going to help him pull it up, and I was helping what little I could, and I was told then by Mr. Roberts to go on up there. When I started up, the man was a little past the middle of the ladder — I should judge toward the top. I had a hold of the hose. Then I started up the ladder, but I did not pull the hose. I stepped up a couple of steps, and then started to pull the hose up, and I was right within about six feet of this man. I should judge the car was 14 or 16 feet from the ground up. I started to pull this hose up, and this man ahead of me, he was just about to step on top of the car, that is, he was within a step or two of the top when I started to step up one step higher, because I heard Mr. Roberts tell another man to go up the ladder to get the hose up there, and I saw that this man was about to come up the ladder, and I made one step like that; I remember raising my foot to step up, one step up, when the ladder broke, and I fell to the ground.”

Nowhere in the declaration is the claim made that plaintiff was an employee of the defendant. It is alleged that he was called upon by defendant for assistance; that the plaintiff responded to the request, and undertook to assist in and about the extinguishment of the fire; that the fire spread to the said car loaded with sawdust; that said defendant thereupon requested and directed said plaintiff to ascend the ladder; and that the plaintiff undertook to comply with said request. It is further alleged that it was the duty of the defendant to provide a ladder for the said plaintiff, which was free from defects and knot holes, and of sufficient strength to bear the weight of the plaintiff and other persons in going onto the said car of sawdust.

The plaintiff produced evidence tending to show that the ladder was defective in the particular named, to wit, because of a knot hole, and that he was injured by falling from the ladder: Mr. Roberts, the assistant superintendent of the defendant, testified that he did not hire the plaintiff for the defendant, or at all, and that he did not give him any orders to do anything for the defendant.

The trial court charged the jury as follows:

“The first question which you naturally will consider when you go to your jury room will be whether or not the plaintiff was in the employ of the defendant company at that time. You have heard what the plaintiff claims was said to him by Mr. Roberts. You have heard what Mr. Roberts has had to say respecting the matter. It is conceded that Mr. Roberts had authority to employ the plaintiff, or any one.else, to assist in putting out that fire, if he saw fit to do so. The question is: Did he employ the plaintiff, or did the plaintiff volunteer to assist in putting out that fire? In order, gentlemen, that you may find that the plaintiff was in the employ of the defendant company at that time, you must be able to say by a preponderance of evidence that Mr. Roberts intended to hire the plaintiff to work on the fire, and that the plaintiff accepted the employment. In order for the plaintiff to say he was working for the chemical company, you must find that a contract of hiring existed; in other words, you must be able to say that the minds of both parties, Mr. Roberts and the plaintiff, met at that time, and that Mr. Roberts understood that he was hiring the plaintiff, and that the plaintiff understood that Mr. Roberts was hiring him. If, as I said, the fact was that the plaintiff merely volunteered to assist in extinguishing the fire, then, no matter how the injury happened, the defendant in this case would not be liable. Now, what is the fact about that? Did the plaintiff go down there merely to look on, or did he enter upon the business of extinguishing the fire only after he understood- that Mr. Roberts had hired him to assist in putting out the fire? Did Mr. Roberts himself understand that he was hiring the plaintiff, and that the plaintiff understood that he was being hired to put out the fire? In other words, did the minds of these two men get together on the contract of hiring? Unless you are able to say that, gentlemen of the jury, and to say that by a preponderance of the evidence in the case, you have finished your consideration of this case; because it would then be your duty to find a verdict for the defendant. If the plaintiff, simply being there, entered upon the business of putting out the fire voluntarily, like you and I might, in case we rushed out to a fire, and that is all there was of it, and he was injured, he would Nave no claim against the defendant.”

At the conclusion of the plaintiffs testimony, and again at the conclusion of all the testimony, the defendant requested the court to direct a verdict for-the 'defendant for several reasons, among which was the .reason that no relationship of master and servant was ■established by the plaintiff. The trial court declined to direct a verdict, and submitted the case to the jury; the trial resulting in a verdict and judgment for the plaintiff in the sum of $1,200' damages. The defendant has brought the case here for review, and, by a proper assignment of error, it presents the question above stated, among others.

The "rule seems to be well settled that where, in an action for personal injuries, it is sought to charge one ;as master, plaintiff must show that, at the time of the alleged injury, the relation of master and servant existed between the parties. 26 Cyc. p. 1082, and cases cited. The trial court recognized the rule as appears by the part of the charge above quoted.

We have examined this record carefully, and are unable to find any evidence that warranted the court in submitting that question to the jury. There is no ■evidence in the case showing any contract of employment by the defendant, with the plaintiff, and in our opinion the trial court erred in submitting the case to the jury on any such theory. The plaintiff was, according to this record, a mere volunteer, and the trial court instructed the jury that:

“If the plaintiff, simply being there, entered upon the business of putting out the fire voluntarily, like you and I might, in case we rushed out to a fire, and that is all there was of it, and he was injured, he would have no claim against the defendant.”

That was the real situation, and a verdict should have been directed for the defendant.

For this error the judgment of the circuit court is reversed, and there will be no new trial.

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


author: Kuhn, J.

text:
    NORTON v. WILLIAMS.
    1. Drains — Assessments—Public Improvements.
    ■ Act No. 254, Pub. Acts 1897, amended by Act No. 185, Pub. Acts 1911, provides for a petition by five freeholders of any county in which a drain is to be laid out, showing the necessity for it, etc., and provides upon receipt of the petition for the drain commissioner’s giving notice to the other county commissioners wherein the drain may be situated and that all shall meet and take measures such as are provided by the statute and proceed as required by chapter 8. It is enacted in section 2, chap. 7, that the said commissioners shall meet and perform all duties that county drain commissioners are charged with in establishing distinct drains. In chap. 3, and the later amendment thereto (Act No. 185, Pub. Acts 1911), the drain commissioners are directed to notify the several township clerks in whose territory the drain may be located of the filing of a petition, and to designate a place for the meeting of township boards which the clerks are to call; to make a survey, etc. Held, that failure to notify and call meetings: of the township boards was not fatal to a proceeding to establish a drain in more than one county: that there was no official action necessary for such boards to take and the acts of the commissioners were regular without having the several boards pass on the necessity for the improvement.

      2. Same — Necessity—Eminent Domain.
    The question of the necessity and benefit of a drain which lies in more than one county is for the several commissioners. No action of the township boards is required.
    3. Same — Fraud.
    No fraudulent conduct on the part of the county drain commissioners could be inferred from the fact that they determined to establish a separate drain not including one in existence, which was not an essential part of the larger improvement.
    4. Same — Certiorari—Jury—Trial—Appeal and Error.
    Upon certiorari to determine the validity of certain drain proceedings, it was essential to present competent evidence of the alleged facts that one of the jurors had been paid, in the probate proceedings, to convey the other jurors to the drain in question; mere allegations in the petition, unsupported, were not sufficient.
    Error to Calhoun; North, J.
    Submitted October 6, 1915.
    (Docket No. 15.)
    Decided December 21, 1915.
    Petition by Charles F. Norton and wife for writ of certiorari against L. Chester Williams, drainage commissioner for Calhoun county, to review certain drain proceedings in probate court. Judgment for respondent. Petitioners bring error.
    Affirmed.
    J. M. Hatch & Son, for relators.

      Stewart & Jacobs, for defendants.
   Kuhn, J.

This is an appeal from the decision of the circuit court dismissing the writ of certiorari issued to review the action of the county drain commissioner of Calhoun county in the improvement of a drain known as the “Big Marsh Drain.” It was urged in the court below, and is now urged, that:

(1) All proceedings to lay out a drain where the drain traverses more than one county are governed by section 2 of chapter 8 of the drain law, as amended by Act No. 185, Pub. Acts 1911, which requires the action of the township board or boards before the commissioners proceed to lay out said drain.
(2) There was fraud on the part of the drain commissioner in laying out the drain in question, because the Big Marsh Drain and the Joslyn Drain constitute only one drainage system, and by separating them into two a fraud has been perpetrated on the relators.
(3) There was fraud in laying out the drain because, it is alleged, one of the jurors was employed by the drain commissioner to transport some of the jurors to view the drain.

The proceedings had and the orders made were based upon an application for “extending, straightening, deepening, and widening the Big Marsh Drain” from a point in the township of Charleston, Kalamazoo county, easterly “in the old ditch” in the township of Battle Creek, Calhoun county, to the point where it empties into the Fuller Drain.

These proceedings are governed by chapter 7 of Act No. 254, Pub. Acts. 1897, section 4371, 2 Comp. Laws (2 How. Stat. [2d Ed.] § 3428), as amended by Act No. 185, Pub. Acts 1911, which chapter covers drains traversing more than one county. Section 8 of this chapter, covering improvements liké the one in the instant case, provides that any five freeholders of any county, one or more of whom shall own land which at the time of the drain’s construction was assessed therefor, may apply to the drain commissioner of either county, showing the necessity for the improvement. If upon examination the commissioner shall deem it necessary, etc., he shall notify the county drain commissioners of the other counties traversed, furnishing a copy of the application; and they shall “meet and jointly take such measures as are provided in this chapter relative to drains traversing more than one county, and act in like manner as provided in chapter 8 of this act in the manner '(matter) of establishing (established) drains.” (Chapter 8 has to do, not with “establishing” drains, but with'“established” drains, and this is doubtless a typographical error.)

Section 2 of chapter 7 provides that:

“Such county drain * * * commissioners shall, at the time and place fixed as above, meet with the county drain commissioner having the original application, and they shall thereupon and thereafter jointly take all steps, and perform all acts, and sign all papers, as county drain commissioners are required to do singly in the case of other drains, including the application to the probate court.”

The steps to be taken and the acts to be performed singly in the case of other drains are set forth in chapter 3, as amended in Act No. 185, Pub. Acts 1911. Section 2, amended in Act No. 118, Pub. Acts 1909, and Act No. 185, Pub. Acts 1911, makes the following requirements of the county drain commissioners :

(1) To notify township clerks of the filing of the petition.
(2) To designate a place for the meeting of the township boards which the clerks are to call.
(3) After the favorable order of the boards is filed, to make a survey to determine the practicability of the drain.
(4) This, determined, to make first order of determination.
(5) If the township board or boards should fail to agree, where there are two or more townships interested within the same county, the county drain commissioner shall determine the necessity of the drain.

Section 3 sets forth the steps which shall follow the first order of determination.

It is clearly apparent from the return of the county drain commissioner of Calhoun county that he and the county drain commissioner of Kalamazoo county determined the necessity of the improvement and made the first order of determination without having first referred the question to the township boards.

In carrying out the provisions of section 2, chap. 7, the commissioner might notify the clerks and designate a place for the meeting; but, as there is no provision in this chapter as to any function or duty to be performed by the clerks, the commissioner would thus be doing a useless thing in notifying them, which the law does not require. If it had been the intention of the legislature that the township boards should be required to meet as provided for in chapter 3, it could have clearly provided in chapter 7 that the same procedure should be followed as in the case of other drains.

Section 2 in chapter 7 also provides:

“That should the said county drain commissioners be unable to agree as to the necessity, location or benefit of such drain, or any * * * matter, relative thereto they, or either of them, may appeal to the State highway commissioner.”

This, in our opinion, would seem to indicate that the question of the necessity and benefit, as well as the location of a drain traversing more than one county, was left by the statute to the county commissioners. By section 2 of chapter 3, all the township boards are called upon to determine is “the necessity of said drain, and whether the same is necessary and conducive to public health, convenience, and welfare.” It being clear that this, the only matter left for their consideration, is, impliedly at least, left with the commissioners by section 2 of chapter 7, it would follow that it was the intention of the legislature that in the matter of drains traversing more than one county there was nothing for the township boards to do.

We are therefore of the opinion that the circuit judge was correct in holding that the proceedings of the commissioners was regular without the township boards having passed upon the necessity of the drain.

With reference to the second ground urged, the learned trial judge found that:

“The holding must be against the contention of the relators, because it seems quite conclusive that the so-called Joslyn Drain is not in any way a necessary part of this Big Marsh Drain. At the hearing it was conceded by counsel for the relators that, if the proceedings as to the Big Marsh Drain can be prosecuted independent of the Joslyn Drain, then the number of signers on the petition in this case is sufficient.”

We agree with the trial judge that this disposes of the second ground urged.

There is also no merit in the last ground assigned, in that there is no competent evidence in the record before us to support the assertion that any irregularity was committed in employing one of the jurors in the probate court proceedings to transport a part of the jury to the drain in question. All there'is before us with reference to this is an allegation in the petition on information and belief, and no proofs are had in support thereof.

The order of the court below in dismissing the writ of certiorari is affirmed.

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


text:
    PONKE v. DETROIT UNITED RAILWAY.
    1. Damages — Verdict—Amount.
    Upon somewhat conflicting testimony, a verdict of the jury, in a personal injury case, for $500 damages, was not excessive for a broken rib, pain in the side and leg, and a bruise on the hip, causing plaintiff to be absent from work and confined to the bed five weeks, and to pay out $40 in expenses, so as to require the granting of a new trial.
    2. Same — Extent oe Injuries — New Trial.

      Held, that plaintiffs proofs were sufficient to support a verdict for that amount, on motion for a new trial, the testimony relative to the loss of time and the extent of physical injury sustained by plaintiff in dispute.
    Error to Wayne; Mandell, J.
    Submitted October 8, 1915.
    (Docket No. 28.)
    Decided December 21, 1915.
    Case by Frank Ponke against the Detroit United Railway for personal injuries. Judgment for plaintiff. Defendant brings error.
    Affirmed.

      Frederic T. Harward (Corliss, Leete & Moody, of counsel), for appellant.

      Dohany & Dohany, for appellee.
   Kuhn, J.

The plaintiff recovered a judgment in the sum of $500 for injuries claimed to have been received by him on October 26, 1912, while standing on the back platform of one of the defendant’s cars when it was struck by another car going in the same direction. It is claimed that as a result of the collision he was thrown against the dividing rail, which broke off, and in consequence of the injuries suffered he was confined to his bed for a period of five weeks; that he did not go to work until January 3, 1913, and for two months after the accident he suffered pain; that during the time he was confined to the house the doctor called on him twenty times; and that he paid him the sum of $40 for his services. It was the contention of the defendant that the collision was an unavoidable accident, and that the books of Caille Bros., where the plaintiff was working at the time of the accident, show that at that time there were employed by Caille Bros, four people by the name of Ponke, viz., John Ponke, Dave Ponke, B. Ponke, and F. Ponke, and that the F. Ponke is the plaintiff in this case and was away from work from October 26, 1912, to November 4, 1912. The defendant moved for a new trial on the ground that the verdict was excessive and contrary to the weight of the evidence, and appended to the motion was an affidavit of Wilford Elliott, who, it appears, was the timekeeper for Caille Bros, at the time of the accident; the substance of the affidavit being that he was personally acquainted with Frank Ponke, and that Frank Ponke’s name appeared on the pay roll of the company as “F. Ponke,” and that the same F. Ponke was absent from his work only from October 26, 1912, until November 4, 1912. On this appeal it is the contention of counsel for the defendant and appellant that the court erred in not granting a motion for a new trial, made, on the grounds that the verdict was grossly excessive and contrary to the great weight of the evidence.

The plaintiff testified that immediately upon his .arrival home after his injury he called Dr. Thomas Dowling, who, upon being sworn, testified that upon being called to treat the plaintiff on October 26, 1912, 'he found him in bed and suffering severe pain on his side and down the leg; that he found plaintiff had a fracture of the twelfth rib, and that there seemed to he a crepitus between the two bones where the rib was broken on the right side; that the plaintiff’s right hip was bruised and swollen, and seemed to be pretty painful ; that he put on bandages to hold the rib in position, which remained on between a week and two weeks; that the discoloration on the right hip remained for nearly two weeks; and that the pain in the right leg was probably due to pressure on the sciatic nerve; that he called on the plaintiff 20 times. He stated further that the plaintiff was in bed over two weeks; nearly three weeks, he thought. The records of Caille Bros, further show that F. Ponke appears to have drawn as pay 37% cents an hour in November and December of 1912. The plaintiff testified that he was' not paid by the hour during that time, as he was working in the experimental department, and was paid by the week.

It is quite true that this record presents a case in which it is impossible to reconcile the testimony of the plaintiff and the physician with that of the defendant’s witnesses. It may be, as the trial judge in denying the motion for a new trial said, either that the plaintiff had committed perjury in testifying as to the length of time he was confined to his house, or the witnesses of the defendant, the employees of Caille Bros., were mistaken as to the identity of the plaintiff. To determine the credibility of these witnesses, however, was. a. matter peculiarly within the province of the jury, and we are not satisfied that the verdict was against the great weight of the evidence so as to require this court to overrule the decision of the circuit judge in refusing a new trial on that ground, under the rule announced in Gardiner v. Courtright, 165 Mich. 54 (130 N. W. 322) Fike v. Railroad Co., 174 Mich. 167 (140 N. W. 592); Druck v. Lime Co., 177 Mich. 364 (143 N. W. 59); McGary v. Motor Co., 182 Mich. 345 (148 N. W. 722) ; Silverstone v. Assurance Corporations, 187 Mich. 333. (153 N. W. 802). Neither are we of the opinion, if the jury believed the testimony of the plaintiff and his physician as to his injuries, that the amount of the verdict was grossly excessive or unreasonable.

Judgment is affirmed.

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