author: Ostrander, J.

text:
    JOHNSON v. MINNEAPOLIS, ST. PAUL & SAULT STE. MARIE RAILWAY CO.
    Railroads — Negligence — Personal In juries — Contributory Negligence.
    Where the mill yard in which plaintiff worked was, upon stated and uniformly recurring occasions, given up to the business of moving cars on the tracks which it contained, and on such occasions plaintiff was permitted, and had been directed by his employer, to cease work until the switching was completed, and on one of such occasions, while he knew switching was in progress, he voluntarily assumed a manifestly dangerous position, and was hurt by a moving car, his own negligence was the cause of the injury and the railroad company is not liable.
    Error to Schoolcraft; Steerc, J.
    Submitted April 12, 1905.
    (Docket No. 54.)
    Decided May 22, 1905.
    Case by Ellis Johnson, by his next friend, against the Minneapolis, St. Paul & Sault Ste. Marie Railway Company for personal injuries. There was judgment for plaintiff, and defendant brings error.
    Reversed.

      A. H. Bright and G. W. Bunion, for appellant.

      Virgil I. Hixson and Warner & Sullivan, for appellee.
   Ostrander, J.

Plaintiff was an employe of the White Marble Lime Company at Manistique, and had been for a period of six weeks. The sawmill of the White Marble Lime Company is situated north of the main line of defendant, and to the north of the mill; and parallel with its ,northern side, upon the land of the mill company, are two Spur tracks, to secure which this1 company had, by agreement with defendant, graded the land and furnished ties, the railroad company furnishing the steel. No one could use the tracks without permission of the White Marble Lime Company, but the defendant had permission to store cars there when the mill was not in operation. The White Marble Lime Company also had property south of the main line of defendant, and the arrangement between the two companies included the switching of cars from the site north of the main line to the yard on the south side of the main line, as well as to the main line of defendant’s road. Directly to the west of the sawmill is a river, and the two spur tracks mentioned run to the bank of the river, upon which, at the end of the tracks, bumpers or stopping posts are built. These spur tracks are about 500 feet long, and run nearly in straight lines from the switch to the river. To summon the switch engine and its crew, the engineer or foreman of the mill blew the mill whistle, giving one hour’s notice; and it was the rule and custom for switching to be done on these spur tracks twice a day, in the forenoon and in the afternoon. Upon the appearance of the switch engine and its crew in the yard, the foreman of the mill directed what cars were to be taken out, and the disposition to be made of empty cars or others ■coming in. In pushing in cars, it frequently occurred that the locomotive would bring them to the switch, or a little beyond it, and, giving them sufficient momentum, uncouple them and let them run in. It was understood by the men employed there, including plaintiff, that when switching began in the yard the work of those employed in loading and unloading cars was to cease until the work of moving the cars had been completed. It was the rule of the place that the men should stop work when switching began. This rule and this custom were known to the (defendant and its employés. Upon such occasions notice was given to the men at work in and about the cars, ■sometimes by the mill foreman, sometimes by the train ■crew, and when the work of switching was completed the men were told to go to work again. Plaintiff was asked this question:

“ Q. You did that every day, while you were working outside during those six weeks ? Isn’t that the way ?
“A. Yes. * * * After the foreman told us that the switch was coming we were in the habit of looking out for ourselves hntil the engine had taken out the loads and put back the empties. We did that every day while I was working outside during the six weeks I worked there.”

Plaintiff was injured on April 80, 1903. At the time of the accident there were cars on both the north and south spurs. A flat car loaded with shingle bolts, with posts on top of them, had been placed on the south spur track, its west end being almost directly against the bumper, or stopping post. Next to it to the east was a flat car, on which also were shingle bolts and posts; the shingle bolts being piled two or three feet high on each car. These posts had been unloaded, taken to the mill, trimmed, and reloaded into a box car. East of this second loaded flat car were other cars — one of them a box car. From four to six feet of the shingle bolts had been removed from the car next to the river by throwing them over the bumper and into the river. The little space between the end of the car and the bumper, interfering with this work, in which plaintiff and others or another had been engaged, the men concluded to place a skid from the end of the car over the bumper, so that the bolts could be more easily put into the river. A skid had been found and put in. position, to be nailed to the car. Plaintiff went to the mill to get nails, brought them back, walking down between the two spur tracks, handed one or more of them to' the man on the car, and, in passing him one of them, stepped around to the end of the car, between it and the bumper, or the timber nailed across the bumper, passed the nail to the man on the car, put his hands on the car, and was about to mount it, when some cars pushed in upon the spur by the switch engine struck the cars east of the one on which plaintiff had been at work with sufficient force to pinch him between the end of the car and the bumping post, causing the inj ury complained of.

The contention of counsel rests upon very few facts— indeed, may be said to turn upon a single undisputed fact, and the value of that fact in the case. It is undisputed that the only business to be done by the switch engine and its crew in this yard was to move out cars already there, and to move in other cars. It had no other business in the yard. It is undisputed that within a period of time not longer than 10 minutes prior to the accident the switch engine was in the yard at work, and that it pulled out cars which were upon the south track. It is undisputed that plaintiff knew that the afternoon switching had begun. He says:

‘ ‘ I was just handing him the second spike, and I stepped one foot on the rail to get on the flat car when I was caught. I didn’t see the engine. I did not know it was. coming. * * * I knew the engine had been there ten or fifteen minutes before I got hurt. I saw the cars move. I was standing beside the car when the engine first came in. I was looking for a skid at that time. It was snowing, and the smoke from the smokestack came down to the ground between the car, and it was pretty hard to see ahead.”

It was agreed by counsel that the record of the United States weather bureau kept at Manistique on that day showed the prevailing wind was from the north, and that there was a slight fall of snow, not sufficient to be measured. Plaintiff further testified:

“When I knew there was switching, I stopped work. The engine came in every day. We were loading cars every day, and the loaded cars were taken out, and empties put in. When the engine came in after loads, I knew it would afterwards put in the empties. I knew that if it took out loads it would have to put empties back. All the loading would have to stop until the switching was done. I knew the engine came in ten or fifteen minutes before I was hurt. The smoke was coming down from the smokestack, and it was snowing so I couldn’t see up the track when I was hurt. I didn’t know the engine was coming back when I got hurt. I knew when the engine came in ten minutes before I was hurt.
“The engine generally came in once in the morning and once in the afternoon. I was in the postmill when it came in the forenoon. I knew it was there ten minutes before I was hurt. I did not know it had not been there before that time. The first I knew of its being there that afternoon was ten minutes before I got hurt. ”

No notice had been given to the mentó resume work. Counsel for plaintiff say that the evidence shows that no whistle was blown by the switch engine on the afternoon in question, that there is a conflict of testimony concerning the fact of ringing the locomotive bell, and that there is a dispute as to whether the foreman gave the men warning of the presence of the switch engine in the yard. He also relies upon plaintiff’s testimony to the effect that he did not know that the engine had that afternoon,' and at the time he knew that it was in the yard, taken out any loaded cars; that plaintiff did know that a loaded car or loaded cars directly east of where he was working were not taken out before he was injured; that it was usual— he says it was a universal custom — up to the time of the accident, that when the engine came in first it took out all the loaded cars, and then a few minutes later it switched in the empties; that it was the universal custom for the foreman to give personal warning to the men engaged in loading or unloading cars before switching was done; that, if such warning was given upon the occasion in question, it was not heard by the plaintiff, and it is disputed that any such warning was given at all, although the foreman testified to having given it; that, under the circumstances, the fact that plaintiff knew that 10 minutes before he was hurt the switch engine was in the yard is not controlling as to plaintiff’s negligence; that he had, notwithstanding, the right to expect some other or further warning or notice of danger. In this argument, we think counsel rely upon the manner in which some of the testimony is phrased rather than upon the real facts disclosed. Too much significance is given to the alleged practice of taking out loaded, and later bringing in empty, cars. The cars put upon these spur tracks were not all of them empty cars, since plaintiff was engaged in unloading cars which had been brought in there. Nor does it appear that it was a universal practice for the mill foreman to tell the men that switching had commenced. The witness Wyckman, sworn for plaintiff, who was nailing the skid to the car, and to whom plaintiff handed the nail, testified:

‘ ‘ The cars had been moved. They were in there switching a few minutes — about ten or fifteen minutes — before he was hurt. We were unloading the cars at that time.”

This witness also testified:

“I asked Johnson for a bigger nail, and he went into the mill to get a nail. He was gone only a minute or so. * * * When Johnson came from the mill, he came down between the two tracks to where I was, and stepped on the rail between the stop block and the car, and handed me the nail, and just at this same time the engine struck into the cars and jammed him in there.”

Another witness, sworn for the plaintiff, testified that he was loading shingles into the sixth car from the river, and started to load about half an hour before the accident; that the switch engine came in there and hit the car just as he was going into the car with a bunch of shingles, and that the car moved; that this was about 10 or 15 minutes before the accident.

‘ ‘ It struck the car, and it moved so I could not get the shingles into the car. I waited for the foreman to come and tell me to do something else. I waited ten or fifteen minutes, and then the engine came back again, and we didn’t know anything about it, and at this time Johnson got pinched.”

A witness called for plaintiff (the one who stood by the side of the car when he got hurt) testified: came in, but did not pay any attention tó it. We three were there on the track unloading at the time the engine first came in, and remained there until Johnson was hurt. * * * We three were working there together when the switch engine came in and took out about three loaded cars, and it was about ten minutes later when.they switched in the empties. * * * From where Wyckman and I were standing, we could have seen what was going on where they were switching the cars; but we were working with our backs toward the east and our faces toward the west, and we knew nothing about what was going on until the car was struck. ”

“ I know the switch engine was in before Johnson got hurt, but I don’t know if it pulled out any loads. It was on the track on which we were working. It was ten or fifteen minutes before the accident. I think they were a little longer this time in switching than usual. Some days it would take longer to switch than other days, I believe they pulled out some loaded cars that day from that track, and just before the accident. I saw the engine when it

Whatever yearning the foreman or any other person could have given plaintiff was given him by the presence of the switch engine in the yard. That he did not notice whether or not any loaded cars were taken out does not help him. He apparently assumed the only position of danger there was at the point where he was working, since the pinching he received between the end of the car and the bumper left no external evidence of injury and fractured no bones.

We are referred to numerous decisions in cases where persons employed in, on, and around cars standing in yards were injured. We need not discuss them, nor do more than again state the fact which distinguishes this case. The yard in which plaintiff worked was, upon stated and uniformly recurring occasions, given up to the business of moving cars. On such occasions plaintiff was permitted and had been directed to cease work until switching operations were completed. On one of these occasions, notice of which and of the operations being conducted he had, while occupying voluntarily a position of danger which exercise of the most ordinary care would have prevented him from assuming, he was injured. He seeks to recover damages for the injury, and relies upon the failure of defendant to give him warning of the operations in progress.

.The judgment below will be reversed, and anew trial will be granted.

Moore, C. J., and Carpenter, McAlvay, and Hooker, JJ., concurred.


source: Caselaw Access Project

author: Montgomery, J.

license: Public Domain

text:
    PLUNKETT v. DETROIT ELECTRIC RAILWAY CO.

    Judgment — Non Obstante Veredicto — When Authorized.
    A defendant is entitled to judgment non obstante veredicto when the plaintiff’s pleadings are not sufficient to support a judgment in his favor, and it .appears on the record that the verdict cannot be supported as a matter of law, but defendant cannot have a judgment non obstante veredicto merely •because, under the evidence, a verdict should have been directed in his favor.
    Error to Wayne; Rohnert, J.
    Submitted April 26, 1905.
    (Docket No. 94.)
    Decided May 22, 1905.
    Case by Matthew Plunkett against the Detroit Electric Railway Company for personal injuries. There was judgment for defendant notwithstanding a verdict for plaintiff, and plaintiff brings error.
    Reversed.

      George F. Monaghan, for appellant.

      Corliss, Leete & Joslyn, for appellee.

       Rehearing denied September 21, 1905.

   Montgomery, J.

Plaintiff, a city fireman, was pipe-man on a hose truck, which was proceeding west on High street at 7:45 p. m., February 2, 1900, when it was struck at Hastings street by a north-bound Hastings-street car belonging to defendant. Plaintiff was thrown and injured. Plaintiff brought this action to recover for the injuries sustained, and on the trial, under a charge submitting the question of defendant’s negligence, and that of the contributory negligence of the plaintiff, to the jury, a verdict was rendered in favor of the plaintiff for $2,500.

Defendant thereupon entered a motion for judgment in its favor non obstante veredicto, for the reasons:

‘ ‘ First. For that under the evidence. given in said cause a verdict should have been directed by the court in favor of the defendant at the conclusion of the trial thereof.
“Second. For that this court charged said jury, in substance and effect, that the said plaintiff, by and through the persons with whom he was riding, was guilty of contributory negligence. ”

This motion was granted, and judgment non obstante veredicto was entered for defendant. Plaintiff brings error.

The defendant and the court below mistook the practice. At the common law, judgment non obstante veredicto could be entered only when the plea confessed the cause of action and set up matters in avoidance which were insufficient, although found true, to constitute a defense or bar to the action. The rule was later relaxed, and made to apply in favor of the defendant, so that it is now generally held that the defendant is entitled to a judgment non obstante veredicto when the plaintiff’s pleadings are not sufficient to support a judgment in his favor. 11 Enc. Pl. & Prac. 913 et seq. So, too, if there be both a general and special verdict, and the latter be inconsistent with the former, judgment may, in some cases, be based upon the special verdict, diregarding the general verdict. But we know of no case in which it is proper practice to enter a judgment non obstante veredicto, unless it appears on the record that the verdict of the jury cannot be supported as matter of law. In all other cases the proper practice is to move for a new trial, or review the case on writ of error and exceptions. There must be either a general or special verdict to support a judgment, or the pleadings must authorize its entry. This question is ruled by Central Sav. Bank v. O’Connor, 132 Mich. 578. See, also, Schmid v. Village of Frankfort, 134 Mich. 619, and County of Montmorency v. Putnam, 135 Mich. 111. Counsel for appellant has presented the case upon the assumption that the circuit court had power to consider the question which he assumed to pass upon, and has pointed out that the court mistook the rule as to imputed negligence, and that his holding is at variance with the ruling of this court in McKernan v. Railway Co., 138 Mich. 519.

Defendant’s counsel contend that there are other reasons why the verdict should have been for the defendant. We must decline to enter upon a consideration of these questions.

The judgment is reversed, and the case will be remanded, that the plaintiff may move for judgment on the verdict. Plaintiff will recover costs.

Moore, C. J., and Grant, Blair, and Ostrander, JJ., concurred.


text:
    GASSER v. CRITTENDEN.
    Homestead — Execution—Bill—Injunction.
    The decree on a bill in aid of execution should not enjoin alienation and provide for the sale of land that is clearly the . debtor's homestead.
    Appeal from Wexford; Chittenden, J.
    Submitted April 27, 1905.
    (Docket No. 109.)
    Decided May 22, 1905.
    Bill in aid of execution by Sanford Gasser against Arthur Crittenden and wife. From a decree for complainant, defendants appeal.
    Modified.
    Defendant Arthur Crittenden was the owner of 80 acres of land in Wexford county, and was indebted to complainant in the sum of 1500 and upwards. The 80 in question consisted of what is called the front and back 40’s. The front 40 is a homestead, presumably of less than $1,500 value, as it is alleged in the bill that it is wholly inadequate to satisfy complainant’s judgment. Complainant asked security on this land for his claim, but this was refused, and on the same day the defendant Arthur conveyed the back 40 to his wife, defendant Nettie. Complainant caused an attachment to be levied on the 80 acres, and, after obtaining a judgment, caused an execution to issue, and levy to be made on the 80 acres. This bill is filed in aid of this execution levy. The answer sets up that the front 40 is a homestead, and that the back 40 was conveyed by defendant Arthur to his wife for a valuable consideration. The decree declares the transfer fraudulent, and decrees that complainant be authorized to proceed upon his writ of fieri facias, and advertise and sell said real estate as described in complainant’s bill for the payment and satisfaction of the judgment, interest, and costs. The decree also makes permanent the tem.porary injunction restraining defendants from selling or incumbering “said property or any part thereof.” From this decree defendants appeal.

      Fred S. Lamb, for complainant.

      Gaffney & Pease (Jesse B. Oropsey, of counsel), for defendants.
   Montgomery, J.

(after stating the facts). We are satisfied that the circuit judge was fully justified in setting aside the transfer of the back 40. The questions involved in respect of this 40 are questions of fact. A discussion of the testimony is not deemed necessary. The circuit judge saw the witnesses, and was in a position to judge of their credibility from their appearance. We may say, however, that a close scrutiny of the printed record enables us to say that we are abundantly convinced that no mistake was made.

The decree was, however, too broad in restraining the alienation of the homestead. Walker v. Sauer, 97 Mich. 464. Complainant’s counsel in this court says that defendants might protect their rights in the homestead by a notice to the sheriff. If the decree should be construed as leaving the question of the right to sell the front 40 open for future consideration — which would be a forced construction — it is still too broad in restraining its alienation, when on this record it clearly appears to be defendants’ homestead.

The decree will be modified as indicated above. No costs will be awarded in this court.

Moore, C. J., and Grant, Blair, and Ostrander, JJ., concurred.


author: Grant, J.

text:
    ELLIOTT v. CARTER.
    1. Waters and Watercourses — Surface Waters — Discharge. Neither the public, in constructing highways, nor private parties for the benefit of their own lands, can turn water from its natural course onto the lands of another.
    2. Drains — Construction—Estoppel.
    Complainant, by helping to construct a ditch, did not consent, nor was he estopped to object, to its being deepened and laid with tile so as to cast an additional quantity of water on his land.
    Appeal from Ionia; Stone, J., presiding.
    Submitted April 27, 1905.
    (Docket No. 99.)
    Decided May 22, 1905.
    Bill by David F. Elliott and another against Zeno W. Carter to restrain the flooding of complainants’ land. From a decree dismissing the bill, complainants appeal, iteversed, and decree entered for complainants.
    Complainants and defendant own adjoining farms; •complainants’ being on the west sideband defendant’s on the east side, of a public highway running north and south. The country is very flat and marshy. On each side of this highway is a ditch running from a swale or low piece of ground, situated partly on the lands of both. The highway separates this swale nearly in the middle. Originally the highway across the swale was made of logs, and known as “corduroy.” In course of time the logs were covered with earth, so that the water would not flow from one side to the other. Surface water alone filled the swale. In high water the water .would overflow the lips of the swale, and flow in three different directions — southeasterly, southwesterly, and northwesterly. After the bed of the highway across the swale was filled with dirt, stopping the flow of the water, all the water that came from the lands on the west flowed over the complainants’ lands to the east and west road, and all that coming from the lands on the east side flowed in a southeasterly direction over defendant’s land until ditches were dug along the highway. A ditch extends along the north side of the east and west road, and runs into a public township drain about 80 rods distant. Complainants have drains running in a southerly direction to this ditch — one running from the swale west of the highway. A ditch was dug more than 15 years ago on the east side of the highway from the swale to the east and west road, and a sort of culvert constructed along the north side of the east and west road, so that the water coming down this ditch passed into the ditch in front of complainants’ land. In 1894 the defendant deepened the ditch on the east side of the highway from the swale on his land to this sluiceway about 2 feet. The distance from the swale to the sluiceway is about 400 feet. He was about to place larger tile in the sluiceway, when the complainants filed their bill, praying for an injunction; claiming that the water thus emptied from the defendant’s land into this ditch and in front of their land would cause the water to back up in the drains upon their land and damage it. The defenses are three:
    (1) That the ditch has been for nearly 20* years a part of the necessary plans and methods of constructing this highway. (2) That both the defendant and the township have acquired a prescriptive right to continue the existence of this ditch and the sluiceway. (3) That complain-' ants are estopped by their own acts and the acts of their grantors to deny the right of the defendant to continue the use of the ditch.
    The case was heard upon pleadings and proofs, and the bill dismissed.

      John Nichol, for complainants.

      William K. Olute, for defendant.
   Grant, J.

(after stating the facts). 1. That neither the public, in constructing highways, nor private parties for the benefit of their own lands, can turn water from its natural course onto the lands of another, is well settled. 2 Farnham on Waters & Water Rights, 960; McAskill v. Township of Hancock, 129 Mich. 74 (55 L. R. A. 738); Breen v. Hyde, 130 Mich. 1, and authorities there cited; Smith v. Township of Eaton, 138 Mich. 511. It is shown by a survey made by a competent surveyor that the lands around this swale on the defendant’s farm are lower than those upon the complainants’ farm, and that, when there is water sufficient to overflow that part of the swale east of the highway, it naturally goes upon the land of the defendant. The ditch, as it was dug by the defendant from this swale to the sluiceway, is about five feet deep. It has not been dug to this depth a sufficient length of time to give him the right by prescription. Prior to 1894 it was not as deep by two feet. To the depth to which it was dug and had existed for more than 15 years before suit was brought, both the township and the defendant had acquired, a prescriptive right to its use. It is apparent that in that condition the water- did not cause much, if any, damage to the complainants. The depth of the ditch acquired by prescription is three feet below the surface of the ground at the highest point.

2. The claim of estoppel rests upon the evidence that complainants and their grantors had worked in the construction of this ditch. The record does not show that they, by any acts or conduct, consented that this ditch should be dug to the depth now claimed by the defendant. Neither does it justify the conclusion that they consented to and acquiesced in the depth now claimed, and in the tile as now proposed to be put in the sluiceway.

The decree will be reversed, and the decree entered in this court for the complainants, in accordance with this opinion, with costs of both courts.

Moore, C. J., and Blair, Montgomery, and Ostrander, JJ., concurred.


author: Per Curiam.

text:
    BOYD v. DETROIT BOARD OF HEALTH.
    Mandamus — Propriety—Detroit Board op Health — Auditing Claims. ■
    •Mandamus is the proper remedy to compel the Detroit board of health to audit a claim for services rendered on request of the board or its officers. Act No. 413, Local Acts 1897.
    Certiorari to Wayne; Rohnert, J.
    Submitted April 4, 1905.
    (Calendar No. 21,004.)
    Decided May 22, 1905.
    Mandamus by Thomas S. Boyd to compel the board of health of the city of Detroit to audit and approve a claim. There was an order denying the writ, and relator brings certiorari.
    Reversed.

      O. E. Angstman, for relator.

      Timothy E. Tarsney and P. J. M. Hally, for respondent.
   Per Curiam.

Relator presented a petition to the circuit court for the county of Wayne, praying for a mandamus requiring the board of health to audit a claim of relator, and to approve the same, and transmit it to the city controller, according to law. His claim consists of two items. The first item is stated in the first paragraph of the petition as follows:

“That on the 14th day of July, 1898, and previously and subsequently to this date, Dr. Heneage Gibbes was the duly appointed, duly qualified, and acting health officer of the board of health of the city of Detroit, in said county; that as such health officer he was, under and by virtue of the law establishing said board, empowered to appoint and dismiss all subordinates and employés; that in accordance with and in the legal exercise of said powers said Dr. Gibbes did, on or about said 14th day of July, 1898, employ your petitioner to compile and tabulate the mortuary, birth, and contagious disease tables for the 'annual report for said board for the year ending July 1, 1898, for the agreed compensation of $100.”

The second item is set forth in the second paragraph of his petition and is as follows:

“That on or about May 11, 1899, your petitioner was employed by Hon. James H. Pound, who was at that time the president of said board, to act as the secretary of said board, and that your petitioner did act as such secretary and performed the duties of this office from said May 11th until the 23d of said May, and until another and a regular secretary was appointed by said board; that the services as such secretary were performed after the regular working hours of your petitioner; and that, though there was no price agreed upon between your petitioner and said Pound for the performance of said services, your petitioner claims and avers that they are worth the sum of $50, because the salary of the secretary of said board at this time was, as your petitioner is informed and believes, the sum of $1,500 per annum.”

In the third paragraph of his petition relator states that he was employed as registrar of said board from August 1, 1898, to August 31, 1899, so that a portion of the services for which compensation is claimed was performed while he was such registrar, but that all of such services were performed after hours, and after the regular duties of petitioner as registrar had been fully performed. Relator also further avers, in the fourth paragraph, that the president of the said board not only appointed petitioner to act as secretary, but that such appointment was made with the knowledge and concurrence of the other members of the board, so that such appointment was, in law, made by said board. Relator also avers, in the fifth paragraph, that he presented his bill for his services at the sum of $150, accompanied with an affidavit, as required by law, and that the board refused to allow his bill for such services, or any part thereof, but returned it to petitioner marked “Disapproved,” and that he has never had any compensation for such services. Relator also avers, in the sixth paragraph, that, according to the law relating to said board, every claim against said board must be duly audited by said board, approved by the president thereof, and properly vouchered by the secretary thereof, be transmitted to the city controller, and by him submitted to the common council of the city with his approval or disapproval, being accompanied by the affidavit above referred to; and that his procedure in the premises therefore was the only procedure authorized by law or open to him. An order to show cause was issued by the circuit judge. Respondent answered the petition, admitting the allegations of fact of the first paragraph, but denying the conclusions of law; denying the allegations of fact in the second paragraph; admitting the allegations of fact in the third paragraph; denying the allegations of fact in the fourth paragraph; admitting the allegations of fact in the fifth paragraph, but denying that the sums mentioned were a reasonable compensation for the work done; and, finally, denying that the relator was without remedy in the premises except by mandamus, and alleging that relator is not entitled to the relief prayed for, because:

“(a) His claim was never presented to the common council of the city of Detroit for audit and allowance as provided by statute. (6) Such portion of such claim as was presented to the common council for audit and allowanee is still before that body for its consideration, and that a reasonable time for investigation has not yet expired, as is provided for by statute, (c) Petitioner herein has a full and adequate remedy at law for the collection of his claim.”

Section 3 of the act to establish a board of health for the city of Detroit, as amended in 189? (Act No. 413, Local Acts 1897), provides that:

‘ ‘ It shall be the duty of the said board, on or before the fifteenth day of February in each year, to file with the city controller an estimate of the amount of money which, in the opinion of said board, will be required for all purposes of expenditures by said board during the next fiscal year, which estimate shall be in detail, specifying the objects of expenditure, the sums desired for each and the reasons for the same, which shall bo laid by the controller before the common council with the annual estimates. * * * On and after July 1st, 1897, all pay rolls, bills, accounts and claims of every character against the board shall, after having been duly audited by the board, approved by the president and certified and properly vouchered by the secretary of the board, be transmitted to the city controller, who shall submit the same to the common council, with his approval or disapproval. When said pay rolls, bills,' accounts and claims shall have been allowed by the common council, the controller shall draw his warrant (warrants) on the city treasurer therefor: Provided,” etc.

The circuit judge denied the prayer and dismissed the petition without stating his reasons therefor, but, judging from the briefs of counsel and the issue and proceedings, the petition was apparently dismissed upon the ground that the procedure was improper. We think mandamus was the proper remedy. Safford v. Detroit Board of Health, 110 Mich. 81 (33 L. R. A. 300); Webb v. Detroit Board of Health, 116 Mich. 516; McKillop v. Board of Sup’rs of Cheboygan Co., 116 Mich. 614. The circuit judge was therefore in error if he dismissed the petition, as we suppose he did, fo.” the reason that mandamus was not the proper remedy, it not being intended to intimate any opinion as to the validity or merits of the claims.

The proceedings are therefore remanded to the circuit court for the county of Wayne with directions to proceed to try and determine the issue presented by the pleadings, and, if necessary, to frame issues to make such hearing effective.


author: McAlvay, J.

text:
    WHITE v. CITY OF MARQUETTE.
    Evidence — Declarations—Res Gestíe.
    In an action for death from, injuries, statements of deceased made over a mile from the place of the accident, and an hour afterwards — he not having been unconscious all of the interval, and the statements not having been spontaneous, but elicited by questions — are not admissible as res gestas.

    Error to Marquette; Stone, J.
    Submitted May 3, 1905.
    (Docket No. 136.)
    Decided May 22, 1905.
    Case by Almet J. White, administrator of the estate of Jerome White, deceased, against the city of Marquette for personal injuries. There was judgment for defendant on a verdict directed by the court, and plaintiff brings error.
    Affirmed.

      Button & Heffernan, for appellant.

      George P. Brown, for appellee.

       As to how near the main transaction declarations must be made in order to constitute part of the res gestae, see note to Ohio, etc., R. Co. v. Stein (Ind.), 19 L. R. A. 733.

   McAlvay, J.

Plaintiff, as administrator of his father’s estate, brought suit against defendant to recover damages for injuries received by his father, from which he subsequently died, claimed to have been caused by the negligence of defendant. The facts are that on the 2d day of August, 1900, plaintiff’s decedent, seated in his buggy, was driving his team of horses along a street in the city of Marquette upon which the bridge in question is located; that the pole of the buggy dropped from the neck yoke upon the ground, and the horses became frightened and started to run; that they ran along the street and upon the bridge, when for some reason the buggy swerved to one side, striking the truss of the bridge, and throwing decedent out over the side of the bridge, into the river below. When reached by those who saw him thrown out, he was found partly in the water, with his head under water. He was taken out, set on a -stone, and, after a little, became conscious enough to recognize one of his rescuers, and spoke to him by name. He asked more than once about his team, and where his team had gone. One of the witnesses thought his condition was such as not to have permitted an extended conversation; that he was conscious but a short time. He was put into a buggy and driven to plaintiff’s house, over a mile away, by a man who testified that he was in a stupor, and that he shook him to rouse him and to keep him from becoming entirely unconscious. He told him to wake up. Deceased spoke a few words to this witness relative to his team. Plaintiff saw his father as he was brought to his house, and helped get him into the house. He testified that he got some water and washed him and put him to bed.

“As soon as he got to bed and commenced to know where he was, he said he didn’t know where he was before.
“Q. You say he didn’t know where he was until after you had washed him and dressed him and got him in bed?
“A. He didn’t seem to pay any attention, and he didn’t say anything. * * *
“Q. Until you got him in bed ?
“A. Until I got him in the house.
“Q. Until you got him in bed?
“A. I wouldn’t say for sure whether he recognized me when we were getting him into the house or not.”

This was about 5, or half past, in the afternoon. Witness did not remember whether he showed signs of consciousness or not, or whether he spoke before being put to bed. Witness was then asked:

‘ ‘ Q. What, if anything, did your father tell you as to this accident on this day, when he first came to consciousness so that he could talk ? ”

This was objected to as immaterial and incompetent to show what he said after being removed from the scene of the accident.

The Court: The question is not only objectionable for the reason stated, but it does not appear, and it might be important to know, whether it was something that was voluntarily expressed, like an ejaculation, or whether an interrogation, or a long-continued conversation, in which this witness tried to draw out something and go into the transaction. It might be well for the court to know something about that.”

Thereupon the court asked the witness the following questions:

“Q. In what he did say to you, was it in answer to your questions, or not ?
“A. Yes, sir.
“Q. Before broaching that subject, how long did you talk with him ?
“A. Oh, not a great while; just asked him how he felt.
Q. And what else ?
“A. And if he was hurt bad.
‘ Q. What else, if anything ?
‘A. I don’t know as anything more was asked him.
Q. Then you asked him how it happened ?
“A. Yes.
“Q. And then came the answer you were asked to give P In telling how it happened, did he go on and relate how it happened, himself ?
“A. Yes; he related just how it started.
“Mr. Button: That there may be no misunderstanding, I would like to ask one more question.
“Q. I understand this conversation with your father took place as soon as he recovered consciousness enough to carry on a conversation. Is that true ?
“A. Yes.”

The court then refused to allow the plaintiff to testify to what was told him by deceased as to how the accident happened.

The claim of the plaintiff was that the team of decedent shied at a hole in the planking of the bridge, causing the wagon to run upon the truss, from which the injury resulted. Negligence is charged against defendant in not keeping the bridge in repair. Plaintiff also claimed that the statement of deceased, offered in evidence, as to how the accident occurred, was admissible as part of the res gestee. There were no witnesses produced who saw the horses swerve to one side while on the bridge.

The trial court held that the statement offered was not admissible; that it was the narrative of a past event, called out by the questions of plaintiff. The only question before the court in this case is whether the judge erred in so holding. No evidence was offered by defendant, and a verdict was directed in its favor on motion. Afterwards, upon motion for a new trial by plaintiff, the main question in the case was argued at length. The circuit judge, in a well-considered opinion, which is printed in full in defendant’s brief, denied the motion. He arrived at the conclusion that in this case, where the statement offered in evidence had been made a long distance away from the scene of the accident, and more than an hour after it occurred ; when it appeared that deceased during part of the time had been sufficiently conscious to recognize an acquaintance and to ask about his horses, such statement, having been drawn out by the questions of the witness, was in the nature of a narrative of a past event, and therefore hearsay; that it was not a voluntary and spontaneous statement, and could not be considered as part of the res gestse.

The authorities, in discussing the question of the admissibility of statements of injured persons in these cases, have laid down certain propositions upon which there is practical unanimity, which, briefly stated, are as follows: If such statement is made at or near the time and place of the accident, is spontaneous, and so closely connected with the occurrence as to be evoked or prompted by it, it becomes part of the transaction itself, and is admissible as res gestse. On the other hand, narrations not the natural and spontaneous outgrowth of the occurrence, and so far separated from the act they are alleged to characterize that they are not a part of it, and so connected with it as to receive credit from it, are purely narratives of a transaction already past and completed, and are hearsay. For a consideration of the questions involved, see Missouri, etc., R. Co. v. Moore, 24 Tex. Civ. App. 489; Johnson v. State, 65 Ga. 94; Gillett on Indirect & Collateral Evidence, § 258; Chicago, etc., R. Co. v. Chancellor, 165 Ill. 438. The above is not claimed to be a full and complete statement of the holdings of courts in such cases. No hard and fast rule can be laid down which will apply to every case, but each case must be considered in connection with the circumstances surrounding it. In view of the attempts which have been made by the courts to determine these cases on precedent, a learned writer has urged that the question should always be left as one of discretion with the trial judge. (3 Wigmore on Evidence, p. 2257.)

One of the incidents of the case under consideration, which in some measure makes it less easy of solution, is the claimed unconsciousness of decedent during the period of time which elapsed between the injury and the statement relied upon. The mere fact that the statement was made at a distance from the place of the accident is of itself not material, but the length of time intervening before the statement was made, and the condition of decedent during that period, and the circumstances under which the statement was made, all taken together, are of vital importance. Some authorities hold that voluntary, spontaneous statements made immediately after a period of unconsciousness, even at a distance from the place of accident, may be received as a part of the res gestas. 24 Am. & Eng. Enc. Law (2d Ed.), p. 685, and cases cited. The undisputed testimony shows that decedent was not unconscious during this entire time. He very soon after the accident recognized one of his rescuers. He talked of his team intelligently. He also talked concerning his team to the man in the buggy who drove him to his son’s home. The son is not certain that his father did not recognize' him while being taken into the house. He says he did not talk. The statement sought to be introduced was made in answer to questions put by the son to his father after he had been bathed and put to bed. Considering the circumstances of this case, and applying the rules upon which the authorities are harmonious, when such statements will be admitted as res geste, we find that decedent made this statement over a mile away from the place where the accident occurred, and an hour afterwards; that he was not unconscious during all of this interval; and that the statement was not spontaneous and voluntary, but was drawn out by questions put by the plaintiff. It was therefore not res gestee, but the narrative of a completed event, and was not admissible.

The circuit judge did not err in excluding the statement offered. As there was no evidence in the case tending to show negligence on the part of defendant, the direction of a verdict for defendant was proper.

The judgment is affirmed.

Moore, C. J., and Carpenter, Blair, and Hooker, JJ., concurred,


author: Carpenter, J. Hooker, J.

text:
    MILBOURNE v. ARNOLD ELECTRIC POWER STATION CO.
    1. Master and Servant — Injuries to Servant — Railroads — Construction — Vioe-Principal.
    The general superintendent and manager of a company constructing a railway is a vice-principal, and not a fellow-servant, of a laborer engaged in the work.
    3. Same — Collision—Negligence—Evidence—Sufficiency.
    In an action for injuries to a servant while riding on a railway construction train, caused by a collision with other loaded cars left on a spur track, evidence examined, and held, to authorize a finding that defendant’s general superintendent was negligent in placing such loaded cars on the spur track, and in failing to give notice of the fact to those in charge of the construction train. Ostrander, J., dissenting.
    3. Same — Contributory Negligence — Unanticipated Danger.
    The servant of a railway construction company elected to ride on the outside of a house car while returning from the day’s work, in order to watch the tools, with the acquiescence of defendant’s assistant superintendent, and was injured in a collision between the train on which he was riding and loaded gravel cars negligently left on a spur track. Held, that he was not guilty of contributory negligence, as a matter of law, because of the position he assumed, the danger of collision being not one he was required to anticipate.
    4. Same — Duty of Servant — Direction of Principal — Assumption of Risk.
    Plaintiff, the servant of a railway construction company, took a position on the outside of a house car while returning from the day’s work, and, on being cautioned by the assistant superintendent to go inside, replied that he got up there to watch . the tools and see that none fell off, and that he had a good seat, whereupon the roadmaster replied, “ All right, then,” and plaintiff remained in his position. Held, to justify an inference that plaintiff was directed to stay where he was and there perform a duty for defendant.

      5. Same — Collision—Assumption op Risk.
    Where, in an action for injuries to an employé by a collision, while riding on a railway construction train, it appeared that the shock of the collision was much greater than that ordinarily resulting from cars coming together on the siding, plaintiff did not assume the risk, as a matter of law. Hooker and Grant, JJ., dissenting.
    Error to Ingham; Wiest, J.
    Submitted November 15, 1904.
    (Docket No. 81.)
    Resubmitted February 7, 1905.
    Decided June 6, 1905.
    Case by Cyrus A. Milbourne against the Arnold Electric Power Station Company for personal injuries. There was judgment for defendant notwithstanding a verdict for plaintiff, and plaintiff brings error.
    Reversed, and judgment entered for plaintiff.

      John J. Zimmer and Black & Reasoner, for appellant.

      Rollin Ii. & Seymour -H. Person, for appellee.
   Carpenter, J.

Plaintiff brought this suit to recover compensation for injuries received while in defendant’s employ. He recovered a verdict in the court below. On a motion for a new trial the lower court set aside the verdict on the ground that, under the testimony, a verdict should have been directed for defendant. Upon the stipulation of the parties that “ if the evidence offered ” showed, “ as a matter of law, that the plaintiff was not entitled to a judgment, that a new trial was not desired by plaintiff,” and that, upon the other hand, “if the evidence warranted ” the jury in finding a verdict for the plaintiff, the judgment heretofore entered for the plaintiff should stand affirmed, the trial court entered judgment for the defendant, “subject, however, to the right of the plaintiff to have said judgment reviewed by the Supreme Court.”

The record then presents this single question: Did plaintiff make a case which entitled him to take the judgment of the jury ? For the purpose of determining this question, it is obvious that we must consider that testimony from the point of view most favorable to the plaintiff. Defendant was a foreign corporation constructing the electric road between Lansing and St. Johns. Plaintiff was a common laborer in defendant’s employ. The day of his injury, November 29, 1901, he had been employed in the work of construction about six miles north of Lansing. His injury occurred after dark by a collision between the construction train of defendant, upon which he was being carried home, and a train of cars loaded with gravel, also belonging to defendant. The collision occurred on a spur track situated on the east side of the main track, at a place called “'Hurd’s Gravel Pit,” about three miles north of Lansing. The train upon which plaintiff was being carried consisted of a locomotive pushing 10 empty flat cars and pulling a single way car. This way car may be described as a flat car with a house built upon it. This house did not occupy the entire surface of the car. There was left an uncovered space five or six feet long at the front end. Plaintiff, when he boarded the train, instead of accompanying his fellow workmen inside the house, seated himself on this space, with his left foot braced against a bolt which projected about an inch upward from the front end of the car. The tools used by plaintiff and his fellow workmen also occupied this space. Defendant’s assistant superintendent or roadmaster, who was on the train, told plaintiff that he had “better go inside” the way car. Plaintiff replied, “Igot up here to watch the tools to see that none of them fell off, and I have a good seat.” The roadmaster said, “All right, then,” and went on the engine. According to the custom of defendant and the orders of defendant’s manager, the empty cars on this train were to be left on the spur track at the gravel pit before mentioned. When the train reached that point, it went on said spur for the purpose of leaving said empties, and, while going at quite a rapid speed, it collided with the cars loaded with gravel, also situated on said track, and plaintiff was thrown from the car and seriously injured.

It is to be inferred from the testimony that the cars standing on said spur track, 10 or 11 in number, had been loaded with gravel that day while situated on another spur a few feet south of the spur above described, but on the west side of the main track, and that late in the afternoon, by the order of defendant’s general superintendent and manager, a Mr. Quick, they had been moved to said east spur. Until the very day of plaintiff’s injury, this east spur had been a siding long enough to hold all the cars of defendant, 22 in number. That day, to the knowledge of plaintiff and those in charge of the train upon which he was riding, it had been made into a spur, and, as a result, shortened so that it would only hold 11 or 12 cars. Before it was shortened, all the cars were frequently placed on said siding. No light was placed on said loaded cars, and no notice was given by Mr. Quick to those in charge of the train upon which plaintiff was riding that the loaded cars had been placed on said spur track.

It is contended by defendant that from these facts no inference of negligence can be drawn, that plaintiff was guilty of contributory negligence, and that he assumed the risk of the danger which resulted in his injury.

It is settled by our decisions (see Harrison v. Railroad Co., 79 Mich. 409 [7 L. R. A. 623]; Palmer v. Railroad Co., 87 Mich. 281; La Barre v. Railway Co., 133 Mich. 192) that the general superintendent, Quick, was a vice-principal, for whose negligence defendant is responsible.

We think from this evidence the jury might infer that Quick was negligent in placing these loaded cars on this spur, and in failing to give notice of that fact to those in charge of the train upon which plaintiff was riding. In stating this conclusion, we have not overlooked defendant’s contention that there was no necessity for notice to those in charge of the train, because they knew, that'these loaded cars would be on one or the other of the two spurs, and that they were frequently placed on the east spur when it was a siding sufficiently long to hold all the cars. We do not think that the court can say that these facts dispensed with the necessity of notice. Those in charge of the train might very well believe, and it is apparent that they did believe, that because of the shortening of the track, and their orders and custom to put the empty cars there, that they would find it safe for that purpose.

When plaintiff chose to remain outside the house on the way car, was he guilty of contributory negligence ? It may be conceded, that in consequence of making this choice, plaintiff was injured. This circumstance has, however, in my judgment, no material bearing on the question of his contributory negligence. In determining his choice, plaintiff was bound to take into consideration such dangers, and such dangers only, as an ordinarily prudent person might apprehend, and surely no ordinarily prudent person would have apprehended the collision. This statement of the rule is not in conflict with the proposition, in support of which cases are cited in the accompanying opinion of Justice Hooker, that one who is actually guilty of, negligence in choosing an unsafe position cannot recover because he is there injured by a danger which he did not anticipate. The proposition which it is claimed those authorities establish would prevent plaintiff claiming that, though negligent, he might recover because his injury was caused by an unanticipated danger. No such contention is involved in the reasoning of this opinion. The proposition which it is claimed those cases establish, that one who has negligently chosen a position cannot recover for an injury there resulting from an unanticipated danger, is radically different from the proposition asserted by me — a proposition which I cannot but regard as elementary — that one will not be adjudged negligent because he did not anticipate a danger which he could not anticipate. I am aware of no authority which declares a contrary principle. Can we say that no ordinarily prudent person would have taken the course plaintiff took ? To do this, we must say that the danger to which this position exposed him was such that no ordinarily prudent person would under the circumstances have risked it. The danger that was risked, the danger which an ordinarily prudent person should have apprehended, was that of falling or being thrown off the car by its ordinary management. The risk of that danger was undoubtedly assumed by plaintiff, but he would not therefore be guilty of contributory negligence, unless no person of ordinary prudence would have assumed that risk. I do not think it can be said as a matter of law that no person of ordinary prudence would have assumed it. Such a person might reasonably suppose, as presumably plaintiff supposed, that he could protect himself from such dangers by bracing his foot against the projecting bolt.

In considering the question of plaintiff’s contributory negligence, we should bear in mind the circumstance under which plaintiff acted. The fact that one takes a risk in the performance of a duty is a circumstance entitled to great weight in determining whether his conduct was negligent. See Eckert v. Railroad Co., 43 N. Y. 502; Spooner v. Railroad Co., 115 N. Y. 22. Can we infer that plaintiff remained outside the way car in the performance of a duty ? That depends upon the inference to be drawn from the conversation between plaintiff and his superior, defendant’s assistant superintendent. The assistant superintendent told plaintiff he had better go inside. Plaintiff replied, “ I got up here to watch the tools to see that none of them fell off, and I have a good seat.” The roadmaster said, “ All right, then,” and plaintiff remained in his position. In considering this conversation, we must bear in mind the elementary rule that, if susceptible of more than one construction, its meaning is to be determined by the jury, and not by the court. See McKenzie v. Sykes, 47 Mich. 294. I do not deny that from this conversation the jury might have inferred that defendant merely acquiesced in plaintiff’s determination to ride on the open car. But I cannot assent to the contention that this is the only inference they could legitimately draw. By saying, in answer to the direction to go inside, “ I got up here to watch the tools to see that none of them fell off, and I have a good seat,” the plaintiff merely explained his purpose; he did not assert a settled determination to remain in that position. At least, the jury may have found that he did not. By replying, “ All right,” to plaintiff’s proposal to stay and watch the tools, the assistant superintendent not only acquiesced in plaintiff’s remaining where he was, but also furnished evidence of an approval of his purpose in remaining. Plaintiff proposed to stay there and watch the tools; that is, I take it, to prevent their loss or damage. From defendant’s answer, “All right,” the jury certainly could have inferred that defendant approved his purpose, and thereby ratified this self-assignment to a new duty. If, when plaintiff had said, “ I will stay here and watch the tools,” defendant’s superintendent had replied, “ I am glad you suggested watching those tools; they need to be looked after; stay here and see that they do not get lost or damaged ” — plaintiff’s assignment to a duty outside the way car would be clear. It is true that defendant’s superintendent did not use the supposed language, but the jury might have inferred from the language he did use that that is precisely what he meant, and what the plaintiff supposed and had a right to suppose that he meant. From this conversation, it might therefore be inferred. that plaintiff was directed to stay where he was and there perform a duty for defendant. The fact that plaintiff remained in this position to perform a duty clearly distinguishes the case from that of a passenger who, for no other reason than that of his personal gratification, rides on the platform of a car by the acquiescence of a trainman.

In support of the claim that plaintiff was guilty of contributory negligence, we are referred to Glover v. Scotten, 82 Mich. 369; Wilson v. Railroad Co., 94 Mich. 20; Benage v. Railway Co., 102 Mich. 76; Nieboer v. Railway Co., 128 Mich. 486; Railroad Co. v. Jones, 95 U. S. 439; Hickey v. Railroad Co., 14 Allen (Mass.), 429; Posey v. Railway Co., 102 Fed. 236; St. Louis, etc., R. Co. v. Schumacher, 152 U. S. 77; Warden v. Railroad Co., 94 Ala. 277 (14 L. R. A. 552).

In Clover v. Scotten, Warden v. Railroad Co., and Railroad Co. v. Jones, supra, it was held negligence for a switchman to ride on the pilot of an engine. In Wilson v. Railroad Co., supra, it was held negligence for a brakeman to crawl over or under the bumpers of a moving car. In Benage v.- Railway Co., supra, it was held negligence for a brakeman to ride on a brake-beam while a train was moving. In Nieboer v. Railway Co., supra, it was held negligence for a passenger to ride on the deadwood of a street car, and that the conductor had no authority to per'mit him to ride there. In Hickey v. Railroad Co., and Posey v. Railway Co., supra, it was held negligence for a passenger to ride on the platform of a car in which he was being carried. In St. Louis, etc., R. Co. v. Schumacher, supra, it was held negligence for an employe to ride on the platform of a flat car with his feet hanging over the side contrary to instructions.

In each of these cases the plaintiff assumed a danger greater and more obvious than in the case at bar. If these’ authorities have any application, it must be because of the principle there asserted (see Glover v. Scotten, supra):

“ When a safer place is provided, and employés choose a more dangerous one, they do it at their own risk.”

I think that this principle was stated with reference to the particular facts of that case. But even if it be regarded as one of universal application, it cannot, in my judgment, be applied in this case. When it was agreed between plaintiff and defendant that the former should stay outside and watch the tools, he had no right to go inside — he was directed to stay outside. There was no longer any safer place provided for him. I do not see how we can hold plaintiff to be guilty of negligence without holding that a failure to adopt the safest course of conduct is negligence. We have distinctly held that such failure is not negligence. See Fort Wayne, etc., R. Co. v. Gildersleeve, 33 Mich. 133. We think this case comes under the rule, so often declared:

That the question of plaintiff’s contributory negligence should be submitted to the jury, * * * where candid and intelligent men might reach different conclusions upon the facts.” Becker v. Railway Co., 121 Mich. 580.

See, also, Haines v. Railway Co., 129 Mich., at page 483, and the authorities there cited.

Neither do we think that the court can say, as a matter of law, that plaintiff assumed the risk which occasioned his injury. We cannot say that plaintiff assumed it unless we can say that the risk was incident to his employment, or that he knew or should have known that the loaded cars were on the spur. See Bradburn v. Railroad Co., 134 Mich. 575. If his injury resulted from the negligence of his employer, the risk was not incident to plaintiff’s employment. It does not avail defendant to say that plaintiff assumed the risk of the shock resulting from cars coming together on the siding “ with customary force.” For, from the evidence, it may be inferred that the shock of .the collision was much greater than the shock ordinarily resulting from cars coming together on the siding. It certainly cannot be said that plaintiff knew that the loaded cars were on the siding. And if those in charge of the train were not bound to know that they were there — and we have held that they were not — neither was plaintiff bound to know it.

We conclude, therefore, that the learned trial judge erred in entering judgment for the defendant. Plaintiff is entitled to have that judgment reversed, and a judgment entered on his verdict. It is so ordered.

Moore, C. J., and Me Alva y, Blair, and Montgomery, JJ., concurred with Carpenter, J.

Hooker, J.

(dissenting). I do not concur in a reversal of this cause, for the reason that in my opinion the testimony conclusively shows that the plaintiff assumed the risk of riding upon the end of the car, but for which he would have suffered no injury. He is justly chargeable with contributory negligence under the rule of the following cases cited by counsel: Hickey v. Railroad Co., 14 Allen (Mass.), 429; Posey v. Railway Co., 102 Fed. 236; Glover v. Scotten, 82 Mich. 369; Railroad Co. v. Jones, 95 U. S. 439. See other cases cited in defendant’s brief: Wilson v. Railroad Co., 94 Mich. 20; Benage v. Railway Co., 102 Mich. 76; Fluhrer v. Railway Co., 121 Mich. 217; Nieboer v. Railway Co., 128 Mich. 487. The case of Fluhrer v. Railway Co. is closely analogous to the present one, and, in my judgment, identical in principle. Mr. Justice Grant, with the approval of the entire bench, quoted from Glover v. Scotten, as follows:

“When a safe place was provided for switchmen to ride, and they chose to ride in a more dangerous one, and always did so, that would not release them from contributory negligence.”

Warden v. Railroad Co., 94 Ala. 277 (14 L. R. A. 552), is a similar case to Glover v. Scotten, supra, which it cites approvingly, together with many other cases involving the same point. See Kresanowski v. Railroad Co., 18 Fed. 229; Doggett v. Railroad Co., 34 Iowa, 284; Flynn v. Railway Co., 83 Wis. 238; George v. Railroad Co., 109 Ala. 245; Wherry v. Railway Co., 64 Minn. 415. The case of St. Louis, etc., R. Co. v. Schumacher, 152 U. S. 77 (opinion by Mr. Justice Brown), is substantially on all fours with the present case.

I understand that the question of defendant’s negligence, in occupying the exposed place, should not be made to depend upon the probability of a collision. In none of the cases cited was there a probability of the accident that actually occurred, or, for that matter, any other accident. In the great majority of cases trains go through without accidents and are operated without casualty. Yet all kinds of accidents do happen, and courts do not hold that they must be anticipated before exposure to the possibility of them can be said to be negligent. In the minority opinion filed recently in the case of Morgan v. Railway Co., 138 Mich. 631, many cases are cited which hold that it is negligence per se for a passenger to voluntarily and unnecessarily stand upon the platform of a coach, and none of them intimate that it depends upon the question of his knowledge of unusual circumstances which contribute to or cause the accident. If contributory negligence cannot exist until it can be said that it is incurred with the knowledge of the particular facts which are to cause the impending accident, there can be no such thing as contributory negligence in a large class of cases where it has not heretofore been questioned. My understanding is that if the act is hazardous, in the light of human experience, it is negligence which may become contributory if the injury could not have occurred but for such negligence, or is contributed to by such negligence. See Quinn v. Railroad Co., 51 Ill. 495; Camden, etc., R. Co. v. Hoosey, 99 Pa. St. 492; Worthington v. Railroad Co., 64 Vt. 107 (15 L. R. A. 326); York v. Railroad Co., 84 Me. 117 (18 L. R. A. 60); Rolette v. Railway Co., 91 Minn. 16.

In Warden v. Railroad Co., 94 Ala. 277 (14 L. R. A. 552), the Alabama supreme court held it to be negligence per se for a brakeman to unnecessarily sit on a crossbeam in front of an engine running between stations, where the injury was directly the result of the pilot colliding with a rail of a bisecting railroad. The court said:

“ Not only so, but it is equally clear from the testimony that the casualty was directly the result of the pilot’s colliding with a rail of a bisecting road, that no other part of the train or engine was injured, that no other of the several persons on the train was hurt, and that he would not have been hurt but for his having taken this position on the pilot.
“ There being thus no doubt that plaintiff’s presence on the pilot contributed proximately to the injuries he sustained, the main question in the case is whether his being there at the time of the accident was negligence in se on his part, and to be so declared by the court, as a matter of law. The authorities are believed to be uniform to the support of the affirmative of this inquiry. The investigations of the court and counsel have failed to disclose a single adjudged case to the contrary, while many courts are upon record as holding, either by analogy or directly, that to ride upon the pilot or crossbeam in front of an engine while proceeding on its way along the line of its track, without justifying necessity therefor, involves per se such negligence as will defeat an action counting upon injuries received while so riding, and which would not have been received but for the plaintiff’s being there. Even the assumption of less dangerous, but at the same time improper, positions on moving trains, voluntarily and unnecessarily, has been many times held to be contributory negligence as a matter of law, neutralizing the negligence of the defendant, and destroying an otherwise good cause of action. ”

Railroad Co. v. Jones, 95 U. S. 439, is a case where a trainman rode on the pilot or bumper of an engine, while there was room for him in a box car provided for the purpose, and where he would have been safe. In Warden v. Railroad Co., supra, in commenting on this case, the court said:

There was room for him in the box car, as there was room for the plaintiff here on the train; and none of those in the box car were hurt, as here all who remained on the cars escaped injury. It was held that, as the plaintiff would not have been injured had he used ordinary care, he was not entitled to recover, Mr. Justice Swayne observing :
“ ‘His injury was due to his own recklessness and folly. He was himself the author of his misfortune. This is shown with as near an approach to a demonstration as anything short of mathematics will perSiit.’ ”

In Kresanowski v. Railroad Co., 18 Fed. 229, it was held that the plaintiff himself so far contributed to his injury by his own negligence in placing himself in such a dangerous position that he could not recover; and that, there being evidence that there was no room for the plaintiff on the tender, and that he had in effect been authorized- or invited by the company to ride over the pilot, that the plaintiff being of age, and able to see and know the risks of the position, even the fact of such invitation and authorization would not justify him in placing himself in a position of obviously great risk and danger.

Our own case of Glover v. Scotten, 82 Mich. 369, is cited with approval in Warden v. Railroad Co., and commented on as follows:

“But the strongest support of this doctrine is found in the circumstances of a Michigan case, and the several decisions which were made in different actions which grew out of it. The facts were that a switchman in the employ of a railway company was killed. The engine upon which he was employed, and which was at the time engaged in switching cars about the yard of the company, ran into a truck owned by the defendant, an individual having no connection with the railway company, and driven by his teamster. The result of the collision was the death of the switchman, injury to defendant’s teamster, and destruction of the truck and team. The switchman at the time of the collision was sitting on the crossbeam of the pilot, with his feet hanging down over the ‘cowcatcher.’ * * * Several actions grew out of the transaction. The teamster sued the railroad company, counting on the personal injuries he sustained. The company was found negligent; the judgment went against it, which was paid. The railroad company also paid the owner for the loss of his truck and team. The personal representative of the dead switch-man sued the railroad company in the circuit court of the United States, claiming that the death of his intestate resulted from the negligenee of the railroad company in not ringing the bell or blowing the whistle for the crossing over which the truck was passing when the collision occurred, in not having a flagman there to keep the way clear, in obstructing the switchman’s view of the crossing, etc. Judge Brown, now of the Supreme Court of the United States, before whom the case was tried, directed a verdict for the defendant, upon the ground that the switch-man was guilty of contributory negligence in being at the time on the crossbeam of the pilot. The administrator of the switchman then sued the owner of the team and truck, and this last case went to the Supreme Court of Michigan, and was there determined against the plaintiff, who had recovered in the nisi prius court, on the ground that the trial judge had left it to the jury to say whether the switch-man was guilty of contributory negligence, when the court itself should have determined that he was guilty of negligence which contributed to his death, as a matter of law, and thus withdrawn that issue from the jury altogether. Grant, J., rendering the opinion of the court, said:
“ ‘ Several questions are raised by the record, but the plaintiff’s right to recover is barred by his decedent’s contributory negligence, rendering a determination of the other questions unnecessary. There is no dispute about the facts. The judge found as a fact, and so charged the jury, that there is no testimony in the case that the deceased was obliged to ride upon the cowcatcher, and left it to the jury to determine whether or not this constituted negligence on his part. In the absence of proof, we cannot believe that any railroad company requires its switchmen, or any of its employés, to ride in so dangerous a place. There was a safer place for him to ride. He was neither required nor directed to ride in a position which every person of ordinary intelligence and observation knows was the most dangerous he could have chosen. The fact that upon switch engines switchmen rode standing upon the platform provided for them in front of the engine had no tendency to prove that the deceased was justified in riding in a sitting posture upon the cowcatcher of a road engine; nor would the fact that switchmen were in the habit of riding upon the cowcatcher excuse the deceased, as between him and defendant. Yet the judge substantially left the jury to determine the question of contributory negligence by the determination of the question as to whether the deceased was riding in the usual and ordinary place upon the engine. If switchmen always rode there, still that fact would not take them without the rule of contributory negligence. When a safer place is provided, and employés choose a more dangerous one, they do it at their own risk. The difference in danger between standing on a platform of a regular switch engine and sitting on a cowcatcher with one’s legs hanging over it is apparent. In the one case the switchman is ready to jump upon the approach of danger; in the other, considerable time must elapse before he could recover his standing position upon the pilot beam and put himself in readiness to avoid danger. In the present case deceased was the only one upon the engine who was injured. He chose the only place in which he could have been injured, and chose a sitting posture instead of a standing posture.’ ”

In this Michigan case there was a collision not to be expected, and there was no suggestion of the theory that a man was not to be charged with contributory negligence unless he had notice of the danger.

The case of Martin v. Railroad Co., 41 Fed. 125, is another case where an employé, unnecessarily in a place of danger, i. e., on the platform, who was injured by an unforeseen collision, was chargeable with contributory negligence. See, also, Judkins v. Railroad Co., 80 Me. 417; Hickey v. Railroad, 14 Allen (Mass.), 429; Lehigh Valley R. Co. v. Greiner, 113 Pa. St. 600. This case arose over an accident caused by a collision. Martensen v. Railroad Co., 60 Iowa, 705.

The Federal Supreme-Court has held to the same rule in Railroad Co. v. Jones, 95 U. S. 439. It was applied to a laborer who rode on a pilot, rather than in a car provided for the purpose, as we have already shown; while, as already said, the case of St. Louis, etc., R. Co. v. Schumacher, 152 U. S. 79, is not distinguishable from the present case, and contains no hint that the effect of plaintiff’s was any different because he did -not know of exceptional conditions and dangers. We can only ingraft such a rule upon the law by overruling not only a large number of cases in the various State and Federal courts, but the cases of Glover v. Scotten, 82 Mich. 369, Benage v. Railway Co., 102 Mich. 73, and Nieboer v. Railway Co., 128 Mich. 486. In both of the last-mentioned cases there were dissenting opinions, which took the ground that the question of contributory negligence depended upon the apparent, and not unforeseen, dangers. See dissenting opinions 102 Mich. 77, and 128 Mich. 491. But the doctrine was not accepted, but distinctly denied in both. See opinion of Long, J., 102 Mich. 76, and Grant, J., 128 Mich. 488, and authorities cited, including Glover v. Scotten, which is approved and followed in the former. The rule of Glover v. Scotten has been applied in many cases. It was announced by a unanimous bench, and, until the Case of Benage, it does not seem to have been questioned. That was an extreme case in this, viz., that the nature of the accident was extraordinary, so much so that it afforded a plausible reason for the view taken in the minority opinion. But it was seen that the principle then announced, had it been adopted, would be forced upon us in all cases by inexorable logic, and it was deliberately discarded.

It is claimed that the question is affected by the conversation between the plaintiff and the assistant superintendent, i. e., the latter said, “You had better go inside,” to which the former answered, ‘ ‘ I thought I would stay here and look after the tools; I have a good seat;” to which the latter responded, “All right, then.” It is only upon the theory that this gives the jury the right to infer from these words that which they do not import, viz., that the assistant superintendent’s answer, or his failure to insist upon plaintiff’s going inside, relieved the plaintiff from the assumption of the risk and the con sequent contributory negligence. It does not justify the inference of a request to stay and care for the tools, nor is it evidence of more than acquiescence in the determination of the plaintiff to ride on the open car, where he said he had a good seat, at his own risk. The case is not different from that of a passenger who rides on a platform. The trainmen seldom order such to go inside, yet the failure to do so does not relieve the passenger from injuries resulting therefrom. The rule is that, when one voluntarily and unnecessarily occupies the dangerous place, he is guilty of contributory negligence. There is nothing in the testimony to indicate that plaintiff did not voluntarily and unnecessarily occupy this place of danger, hence the jury should not be permitted to infer the contrary. Quinn v. Railroad Co., 51 Ill. 495; Camden, etc., R. Co., v. Hoosey, 99 Pa. St. 492; Worthington v. Railroad Co., 64 Vt. 107 (15 L. R. A. 326). See opinion of Hooker, J., in case of Morgan v. Railway Co., 138 Mich. 631, for other authorities.

In the absence of any conversation, it is clear that no claim could be made that his act was not voluntary. The conversation actually had shows that the company’s agent protested against his staying, i. e., gave him warning that he better go inside. The plaintiff not only remained outside voluntarily, but rather insisted on staying there. It is as though he begged the privilege. No further protest was made. The assistant superintendent said, “Very well, then;” in other words, “Do so if you wish to.” The fact that plaintiff said he went there to watch the tools does not justify the assumption that he did not go there voluntarily and unnecessarily, or that he was even asked to stay and watch the tools, if that would in any case change his liability to answer for the negligence as his own voluntary act. Wiggins Ferry Co. v. Hill, 112 Ill. App. 475.

I do not express an opinion on other points.

The judgment should be affirmed..

Grant, J., concurred with Hooker, J.

Ostrander, J. I am in favor of affirming the judgment for defendant, upon the ground that the defendant is not shown to have been guilty of the negligence relied upon.


text:
    METROPOLITAN LUMBER CO. v. McCOLEMAN.
    1. Acknowledgment — Evidence—Presumption op Genuineness.
    Instruments properly acknowledged carry with them a presumption of genuineness, which must be overcome by a preponderance of evidence.
    2. Appeal and Error — Questions Considered — Conolusiveness op* Verdict.
    Where there was sufficient evidence to go to the jury, this court cannot try the facts whatever its opinion may be as to the weight or credibility of the testimony.
    3. Replevin — Attacking Dependant’s Title — Evidence—Subsequent Bill op Sale.
    Where, in replevin for logs, it appeared that defendant cut the timber during a certain season, claiming ownership, under an agreement with the landowner, it was proper to refuse to permit plaintiff to introduce a bill of sale of such timber given by the landowner thereafter, in the absence of any evidence impugning defendant’s title, and laying a foundation for the introduction of such bill.
    4. Same — Burden op Proof.
    Where, in replevin for logs, it appears that the timber was cut by defendant under a claim of right, and that he was in possession of it when replevied, he is entitled to judgment unless plaintiff establishes his right to it.
    5. Judgment — Estoppel.
    Where defendant gave plaintiff a bill of sale of standing timber, to a portion of which he had no title, and subsequently allowed judgment in a suit for breach of covenant, owing to the failure of title as to a portion of the timber, to be taken against him by default and satisfied the same, his conduct did not estop him from claiming, in a replevin suit subsequently tried, that the bill of sale produced and relied on by plaintiff was not the one that he had executed.
    Error to Iron; Stone, J.
    Submitted January 4, 1905.
    (Docket No. 3.)
    Decided June 6, 1905.
    Replevin by the Metropolitan Lumber Company against Zebina McColeman and the Marinette Lumber Company. There was judgment for defendants, and plaintiff brings error.
    Affirmed.

      IF. D. Mead (11. C. Flannigan, of counsel), for appellant.

      George Gallup (Arthur H. By all, of counsel), for appellees.
   McAlvay, J.

Plaintiff company brought replevin against defendants for about 200,000 feet of pine saw logs cut from S. W. £ and N. \ of N. of Sec. 33, town 44 N., of range 35 W., Iron county, claiming title to said property and right of possession by virtue of a purchase of the same for $800 from defendant McColeman, evidenced by two bills of sale of standing timber, one given by McColeman and Paul C. Peters and wife, dated November 25, 1891, and one given by McColeman, dated August 29, 1892, both filed with the township clerk February 9,1894, and both recorded in the register of deeds’ office for Iron county December 26, 1895. These bills of sale were produced in evidence, and were of the ordinary form, with warranty clause, and no limitation as to the time for removal of timber. Upon the trial it appeared without dispute that a large part of the logs were cut and taken from the lands described in the bill of sale by defendant McColeman. A small part was taken from another description on the same section and from section 9. Defendants appeared and pleaded the general issue j'ointly. Defendant McColeman claimed the timber, and had sold or negotiated it to the other defendant. His defense was that the bills of sale executed and delivered by him to the plaintiff contained a limitation clause of three years in which to remove the timber, and that he had removed the timber after the expiration of said three years. He denied ever having executed and delivered the bills of sale produced by plaintiff, and claimed that they were forgeries. It was shown that McColeman never owned the timber on the S. W. i of section 33 conveyed by his bill of sale of August 29, 1892, for the reason that the timber stood upon the homestead lands of one Shimeon, who alone signed the bill of sale to McColeman, and afterwards a bill of sale of the same timber, signed also by his wife, to one Kelly, who sued plaintiff for timber taken from that description and recovered judgment for $638.46 and costs against it, which judgment was paid. Plaintiff then sued McColeman for breach of warranty, to recover the consideration paid him for this timber, and, after service of the declaration, notice of retainer was served by defendant, hut he did not plead, and judgment by default was regularly entered against him for $252 and costs, which he afterwards paid aud satisfied. Records and proofs of the proceedings and judgments in both these cases were introduced without objection. In the Kelly case, defendant McColeman was a witness for plaintiff Kelly.

This case is brought here by plaintiff company, against which a judgment of $2,029.10 was recovered in the court below; defendants having waived a return of the property. Plaintiff moved for a new trial, relying principally upon the grounds that the verdict was clearly against the weight of evidence; that defendant McColeman, by his conduct, was estopped from denying the execution of the bill of sale of August 29, 1892; that the court erred in excluding the. bill of sale from Ratagsack, purporting to convey to plaintiff all pine timber cut from the south half of the north half of section 33; and because the court left to the jury to determine the quantity of the timber cut and removed from the northwest quarter of the southwest quarter of section 33; the defendant McColeman being bound by the amount of such timber and the value thereof as determined by the verdict and judgment in the Kelly case. The court held with the plaintiff upon the last proposition, and granted a new trial unless defendants remitted all of the judgment in excess of $1,500. Plaintiff refused to accept such remittitur offered by defendants, and excepted to the ruling of the court in not granting the motion without conditions.

In the brief and argument of counsel for plaintiff, the principal contention urged is that the court erred both in his charge to the jury and in refusing to grant a new trial, in not holding that it appeared by a clear preponderance of the evidence that the bills of sale were genuine.

The law is well settled that instruments properly acknowledged carry with them a presumption of genuineness, which must be overcome by a preponderance of evidence. In this case the testimony of the notary was that the second bill of sale was not signed, nor was the consideration written in, at the time he took the acknowledgment. This testimony was offered by plaintiff on direct examination. The testimony offered by plaintiff relative to the execution and acknowledgment of the first bill of sale by McColeman and Peters was in support of the regularity of the acknowledgment. The defendant denied that he executed these instruments, claiming that the signatures were not genuine, and offered the' testimony of himself and others in support of this contention. The charge of the court relative to the burden of proof, the preponderance of evidence as to, and in submitting this branch of the case, was not erroneous. There was sufficient proof to go to the jury upon the question as to whether these bills of sale were genuine or not, and it would have been error to have held otherwise. This court cannot try the facts, whatever its opinion may be as to the credibility or weight of the testimony in any given instance.

Some of the logs replevied were taken from land not described in the bills of sale, known as the “Ratagsack Land,” and defendant McColeman testified as to this timber as follows:

Q. This timber that came from the south half of the north half — the Ratagsack land — you don’t claim to own that, do you ? You never claimed to own it ?
A. Yes, sir; I claim to own it.
Q. You do claim to own it ?
“A. Yes, sir; I had an agreement with Ratagsack.”

This testimony was given in answer to questions propounded by counsel for plaintiff, and constitutes all of the testimony upon the subject. Counsel made no effort to ascertain the exact nature of McColeman’s title to this timber, but apparently treated the testimony as competent and sufficient. Later in the case, plaintiff’s counsel called William Ratagsack, whose entire testimony, as disclosed by the record, was as follows, viz.:

“ I live in Atkinson township. I have lived there thirteen or fourteen years. I knew Anton Shimeon and his wife. He was my neighbor. He was living there in 1890 -1892. His wife lived with him there all the time. I knew of his selling the pine timber to McColeman. It was sold about the time he proved up.”

Plaintiff’s counsel then called another witness, and, after examining him, the following occurred:

‘ ‘ Mr. Mead: I desire to make this offer: I offer the bill of sale from William Ratagsack to the Metropolitan Lumber Company, dated May 9, 1899, purporting to convey to the company all pine timber cut from the S. i of the N. ^ of Sec. 33 — 44—35, during the winter of 1895 and 1896 — Mr. McColeman, on the stand, having made the statement that he claimed to own it — since your honor would not consent to an amendment of the declaration.
Mr. Gallup: I object to that as immaterial and irrelevant.
The Court: I will sustain the objection, for the reason that it is not covered by the pleadings in the case.
Mr. Mead: Give me an exception.”

Plaintiff claims that although this timber was purchased after the suit was commenced, and was not covered by the pleadings, still it was entitled to show its ownership in rebuttal of defendant’s claim of title, and as affecting his measure of damages. While the learned trial judge probably gave an erroneous reason for his ruling, we are satisfied that the ruling itself was correct. McColeman cut this timber in 1895-96, claiming ownership under an agreement with Ratagsack, from whom plaintiff also claims title by bill of sale dated in 1899 — several years after the timber had been cut. No question was asked Ratagsack as to the validity or invalidity of McColeman’s title, or as to the facts, if any, supporting the bill of sale to McColeman. McColeman, up to the time of the offer, appeared to have had a valid title when he cut the timber, in 1895-96; and until some testimony was given impugning that title, and laying the foundation for the introduction of the bill of sale of 1899, that instrument was wholly immaterial.

Plaintiff’s counsel also contended that the defendants failed to prove title or the right to the possession of the logs, admitting that the bills of sale offered in evidence by the plaintiff were not the ones signed by McColeman. We adopt the language of the trial judge in disposing of this contention on the motion for a new trial, as follows:

“As I have already said, the claim of the plaintiff, and the only claim of the plaintiff, to the timber in question, was by virtue of the two bills of sale, Exhibits A and B. If these bills of sale were not signed by McColeman in the one instance, and by McColeman and Peters and wife in the other instance, and delivered to the plaintiff, then plaintiff’s right and interest in the timber ceased. The timber had been cut by McColeman under a claim of right, and he was in possession of it when it was replevied. If plaintiff failed to establish its right to it, then defendant was entitled to a return of the property, or a verdict for its value, its return having been waived.”

Plaintiff’s counsel further contend that:

‘ ‘ The defendant, by his conduct in not contesting the suit brought on the bill of sale of August 29, 1892, by the plaintiff to recover damages for breach of warranty, and permitting judgment to go against him, and paying the judgment, is now estopped to deny his signature to that bill of sale.”

McColeman received from Shimeon a bill of sale of the pine timber on his homestead (the northwest quarter of the southwest quarter of section 33) on the 29th day of August, 1892, and on the same day executed a bill of sale of the entire southwest quarter, including the same timber, to the plaintiff. The bill of sale to McColeman was void because not signed by Shimeon’s wife. On the 15th day of April, 1895, less than three years from the date of McColeman’s bill of sale to plaintiff, Shimeon and his wife conveyed the southwest quarter of section 33, by warranty deed, to Patrick Kelly, in fee. The replevin suit now before us was commenced in March, 1896. Patrick Kelly commenced his suit in trover against the present plaintiff some time in 1896 or early in 1897; securing a verdict and judgment February 16, 1897. Plaintiff herein commenced suit against McColeman by declaration filed August 8, 1900, in a plea of breach of covenant, reciting:

“That on the 29th day of August, 1892, the said defendant Zebina McColeman, by his deed bearing date of that day, and now to the court here, shown, for the consideration therein mentioned, to wit, $300, conveyed to the said plaintiff, its successors and assigns, all the merchantable pine timber now standing, lying, or being on the S. "W. £ of Sec. 33 in town 44 north, of range 35 west, and that the said defendant did covenant, in and by said-covenants, to warrant and defend the sale of said property thereby made unto the said plaintiff, its successors and assigns, against all and every person or persons whatsoever, which said land and timber was situated in the said county of Iron.”

The declaration further averred that the defendant—

“Was not at the time of the making and delivery of said deed lawfully seised of an estate in fee simple in and to all of said real property, nor had he then good right and full power to convey the same.”

The declaration then averred:

‘ ‘ That at the time of the making and delivery of the deed aforesaid one Anton Shimeon had the lawful right and title to the N. W. £ of the S. W. £ of the said section 33. * * * That the said last above described parcel of land was occupied by the said Anton Shimeon as his homestead, and that on or about the 15th day of April, 1895, the said Anton Shimeon and his wife, by warranty deed duly executed and delivered by them, granted and conveyed the lands above described to one Patrick Kelly, who thereupon entered upon said last above described parcel of land and cut and removed the pine timber standing thereon.”

It is apparent that this suit for breach of covenants related solely to the Shimeon 40, and the jury were instructed by the court not to include in their verdict in the suit at bar, if for the defendants, any damages for the value of timber from this 40. It is equally apparent that the defendant McColeman had no defense against this action for breach of covenant, and he made none. McColeman conceded that he had executed on August 29, 1892, a conveyance of the pine timber on section 33 to the Metropolitan Lumber Company. The point of contest was that the bill of sale which he actually executed contained a time limit. But even if it did, this was no defense, since he had no title to the timber on this 40 when he executed the conveyance, and, according to the declaration, Shimeon and wife conveyed the lands to Kelly April 15, 1895, within the three-year limit, who thereupon entered upon them and cut and removed the pine.

We therefore hold that the court was not in error in ruling that the judgment in the breach of covenant case was not an adjudication which estopped the defendants from claiming that the bill of sale of August 29, 1892, as presented by plaintiff in the suit at bar, was a forgery. Some other errors are assigned, but we are satisfied that they are without merit.

The judgment is affirmed, as remitted by the order of the circuit court.

Moore, C. J., and Grant, Blair, and Hooker, JJ., concurred.