text:
    O’NEIL v. GREENWOOD. WARNER v. SAME.
    1, Trusts — How Created — Donor as Trustee.
    The creation of a trust does not depend upon the use of a particular form of words, but it may be inferred from the facts and circumstances of the case. In order to create a trust in the donor, however, there must be an act, or series of acts, sufficient to divest him of the equitable ownership, and vest such ownership in the donee.
    3. Same — Execution of Conveyance — Declaration of Trust.
    It would seem to be the rule in this State that the execution of an instrument which, if delivered, would operate as a transfer of the title to property, with intent to effectuate such purpose, operates as a declaration of trust, although the possession of such insta ument be retained by the grantor. But, however this may be, it cannot be said that the existence of such an instrument is inconsistent with an intention to create a trust in the grantor, as evidenced by other acts, where it appears that it was not intended to - operate as a conveyance of the ligal title until after full performance of the trust.
    •3. Same — Life Use by Donor.
    A donor pray become a trustee for the donee, though retaining a life use of the trust fund.
    •4. Same — Acceptance by Donee.
    Where a gift, otherwise complete, is beneficial to the donee, an acceptance will be implied.

      5. Same.
    The owner of certain notes and certificates of deposit inclosed the same in separate envelopes, together with bills of sale thereof to his child and grandchild, and indorsed upon the envelopes the names of the respective assignees. At the time of the transaction he stated that he should, during his life, collect the interest accruing on the obligations, but that the principal sum, upon his death, was to be the property of the persons named, and that the papers should then be delivered to them. He retained the instruments during his lifetime, collecting the interest thereon, in accordance with the intention so expressed; but he frequently declared that he held the notes and certificates in trust for such persons, and at his death the papers so set apart, or obligations of equal value, were found to be intact. Held, that a trust was created in the parties named, which was enforceable in equity.
    6. Witnesses —Competency—Matters Within Knowledge of Decedent.
    In a suit prosecuted by the assigns of a deceased person against the personal representatives of his estate, an heir at law of the decedent, although not a party to the record, is disqualified by 3 How. Stat. § 7545, from testifying to matters which, if true, must have been equally within the knowledge of the deceased..
    Appeals from Ionia; Moore, J., presiding.
    Submitted June 13, 1895.
    Decided October 1, 1895.
    Separate bills by Lavalette O’Neil and Nancy Calista Warner against Levi M. Greenwood, administrator of the estate of Lewis Willey, deceased, and others, to enforce a trust. From a decree for the complainant in each case, defendants appeal.
    Affirmed.

      Vernon H. Smith (W. W. Mitchel, of counsel), for complainants:
    No particular form of words is necessary to create a trust. It may be inferred from the facts and circumstances surrounding the transaction. If such a purpose is- shown on the part of the donor, that is sufficient. Perry, Trusts. § 132; Eilis v. Secor, 31 Mich. 185; Cummings v. Corey, 58 Mich. 502; Chadwick v. Chadwick, 59 Mich. 92; Martin v. Funk, 75 N. Y. 141; Gerrish v. Savings Institution, 128 Mass. 161; Loring v. Palmer, 118 U. S. 321. An acceptance by the beneficiary is presumed. Higman v. Stewart, 38 Mich. 513; Bostwick v. Mahaffy, 48 Mich. 342; Dunlap v. Dunlap, 94 Mich. 11; DeLevellain v. Evans, 39 Cal. 120; Moses v. Murgatroyd, 7 Am. Dec. 484 (note). A trust may be created in personalty by parol. Calder v. Moran, 49 Mich. 14; Hooper v. Holmes, 11 N. J. Eq. 122. And trusts in personal property may exist when the property is constantly changing; i. e., the specific property may change, but the fund remains subject to the trust. Leland v. Collver, 34 Mich. 423.
    In the case at bar a valid trust was created, although the donor was to have the interest on the fund during his life, and although possession of the bills of sale was retained by him. Ellis v. Secor, 31 Mich. 185, and cases cited; Leland v. Collver, 34 Mich. 418; Harris v. Hopkins, 43 Mich. 272; Chadwick v. Chadwick, 59 Mich. 87; Edinger v. Heiser, 62 Mich. 611; Love v. Francis, 63 Mich. 181, 195; Beardslee v. Reeves, 76 Mich. 661; Bunn v. Winthrop, 1 Johns. Ch. 329; Martin v. Funk, 75 N. Y. 134; Stone v. Hackett, 12 Gray, 227, 231; Davis v. Ney, 125 Mass. 590; Gerrish v. Savings Institution, 128 Mass. 159, 161; Scott v. Savings Bank, 140 Mass. 157; Tillinghast v. Wheaton, 8 R. I. 536; Williamson v. Yager, 91 Ely. 282; Egerton v. Carr, 94 N. C. 648.

      A. A. Ellis (Charles P. Locke, of counsel), for defendants:
    Neither the bills of sale nor the negotiable instruments having been delivered, the gift was imperfect (2 Kent, Com. 438-9; Duncombe v. Richards, 46 Mich. 166; Love v. Francis, 63 Mich. 190; Supervisors v. Auditor General, 68 Mich. 665; Wilson v. Carpenter, 17 Wis. 512; Dougherty v. Moore, 71 Md. 248; Sessions v. Moseley, 4 Cush. 92; Cummings v. Bramhall, 120 Mass. 552; Nutt v. Morse, 142 Mass. 1; Allen v. Polereczky, 31 Me. 338; Hanson v. Millett, 55 Me. 184; Augusta Savings Bank v. Fogg, 82 Me. 538; Craig v. Kittredge, 46 N. H. 57; Curry v. Powers, 70 N. Y. 212; Young v. Young, 80 N. Y. 422; Bunn v. Markham, 7 Taunt. 224; Smith v. Dorsey, 38 Ind. 451; Mims v. Ross, 42 Ga. 121; Bond v. Bunting, 78 Pa. St. 210; Basket v. Hassell, 107 U. S. 602); and such a transfer, inoperative for want of delivery, will not be sustained as a declaration of trust (Curry v. Powers, 70 N. Y. 212; Young v. Young, 80 N. Y. 423; Beaver v. Beaver, 117 N. Y. 428; Wadd v. Hazel

      ton, 137 N. Y. 215; Flanders v. Blandy, 45 Ohio St. 108; Cummings v. Bramhall, 120 Mass. 552). The cases of Richardson v. Richardson, L. B. 3 Eq. 686, and Morgan v. Malleson, L. R. 10 Eq. 475, relied upon by complainants’ counsel as sustaining a' contrary doctrine, and cited in the opinion in Ellis v. Secor, 31 Mich. 191, have been distinctly overruled. Milroy v. Lord, 4 DeGex, F. & J. 264; Warriner v. Rogers, L. R. 16 Eq. 340; Richards v. Delbridge, L. R. 18 Eq. 11; Heartley v. Nicholson, L. R. 19 Eq. 244.
   McGrath, C. J.

Lewis Willey, grandfather of Lavalette O’Neil and the father of Galista Warner, died suddenly, May 11,1893, aged 77 years. He had, in 1891, been troubled with la grippe. In the early part of January, 1S92, he had called in a physician, and in the course of that illness he was informed that he was liable to sudden death. Trior to January 29, 1892, he had conveyed to his children all of his real estate. He had three grandchildren, — Vernon and Fay Willey, sons of Lewis Bradley Willey, and Lavalette O’Neil. He had conveyed a farm, estimated to be worth in the neighborhood of $4,000, to Vernon and Fay Willey. Webber & Buel were his bankers. On the date last named, Willey called in Mr. Sherwood (who had at other times prepared papers for him) and Mr. Buel, and in their presence opened a tin box which had been kept in the vault at the bank, and exhibited several certificates of deposit issued by Webber & Buel, amounting in the aggregate to over $2,500, and a number of promissory notes aggregating upwards of $2,500. He then stated that he had made provision for his sons and daughters, except one daughter, Galista Warner, and had provided for the Willey grandsons, but had made no provision for Lavalette O’Neil, and desired to equalize the distribution of his property by giving to Calista Warner certificates of deposit, amounting to $1,800, and to Lavalette O’Neil notes amounting to $2,200. He then selected out $1,800 in certificates of deposit, and $2,200 in notes. A bill of sale was prepared by Sherwood, transferring -to Lavalette O’Neil the notes so selected out, describing specifically said notes, which Willey executed. The notes and bill of sale were then placed in an envelope; Lavalette O’Neil’s name was written thereon by Sherwood, at Willey’s direction; and the envelope was placed in the tin box. The same course was pursued as to the certificates of deposit. A bill of sale to Calista Warner was prepared, executed, and, with the certificates, placed in an envelope, on which was written her name; and the envelope, with contents, was then placed in the tin box. Willey explained to both Sherwood and Ruel that he should, during his life, collect the accruing interest upon the notes and certificates, but that the principal, upon his death, was to be the property of the parties named, and in case of his death at any time the packages were to be delivered as addressed. At the same time, Sherwood prepared, and Willey executed, the discharge of a mortgage which Willey held against another intended beneficiary.

Willey afterwards deposited the tin box in the bank vault. It contained other notes, certificates, and papers. Willey retained the key, and from time to time, until his death, took papers from it, and returned the same, or others, to it. He collected the interest on the notes as the same became due. At the time of his death there had been no material changes as to the notes, but, although the amount in certificates of deposit was $2,900, all were dated after January 29,1892. Willey had talked freely, up to the time of his death, of this transaction, to Sherwood, to Mr. Warner (the husband of Calista Warner), and to others. He had taken Warner to the bank, explained to him the transaction, exhibited to him the papers, and Warner had listed the papers. On that occasion he said to Warner, referring to the notes trans-' ferred to Lavalette O’Neil: “I want you to know that these are Lavalette’s. I only hold them in trust for him.” On another occasion, Willey, on learning that a piece of land adjoining Warner’s farm was for sale, went to the bank, and procured a draft on Detroit for $1,800, and wont to Warner’s residence, and suggested the purchase of the land. The owner asked more than Warner thought the land was worth, and the purchase was not made. Warner afterwards, at a forced sale of the premises, hid up to $1,800; but a higher bid was obtained, and he did not purchase. On another oocasion, Willey, while at Warner’s, suggested that certain improvements be made “with some of that money of yours which I have down there,” but Mrs. Warner said that they contemplated buying another place. When Willey procured the draft, he said to his bankers that he might not use the draft, and not to destroy the certificates. When the draft was returned, it was destroyed, and no change was made in the certificates. Three days before his death, Willey exhibited to Sherwood a memorandum book in which he had listed the notes and certificates as they then stood. To Sherwoud and to others Willey had, up to the time of his death, said that he was keeping the amounts so set aside intact; that he had set aside $1,800 for Calista Warner, and $2,200 for Lavalette O’Neil, and was keeping the certificates and notes for them; that he held the notes in trust for Lavalette O’Neil; that he had given Calista $1,800. To Warner he had said: “You tell Calista that I think she had better put her money in that land; that it will be a good investment.” Again he said to Warner, “If I should drop oil suddenly, Calista’s money is there in the bank, and the banker understands it.”

In the list of notes set aside to O’Neil were two notes made by Lewis Bradley Willey, — one of $725, and one of $350, — 'held by the father. After the father’s death, Lewis Bradley Willey took from the dead man’s pockets his watch, his keys, and a bundle of papers. After tin* funeral the heirs were called in. Mr. Ruel produced the tin box from the bank. Lewis Bradley Willey produced the key. The box was opened, but the bills of sale, certificates of deposit, and notes in question were missing. Lewis Bradley Willey then produced the certificates of deposit and the notes, with the exception of the note for |725 ma.de by himself. The two bills of sale were not produced. The pocket memorandum book which deceased carried, which, a few days before his death, he had exhibited to Mr. Sherwood, and which contained a list of the notes and certificates held for O’Neil and Mrs. Warner, was also missing. Lewis Bradley Willey was not sworn. On the Sunday before his death, Mr. Willey referred to the matter of the provision made for Lavalette O’Neil and Mrs. Warner, .and stated that it was in black and white, tapping the breast pocket of his coat as he made the remark. He had evidently taken the two packages from the tin box at the bank, and had them on his person at the time of his death. It may have been done for the purpose of making the very memorandum book list to which the witness Sherwood refers.

Lewis Bradley Willey was interested in the destruction of the note, the bills of sale, 'and the memorandum book; and, from the statements made by him respecting the matter, it is evident that these missing papers were destroyed by him after his father’s death. The case must therefore be considered as if the packages had been found, after the death of Lewis Willey, with the bills of sale and the amount of the notes intact.

This record leaves no room for doubt but that Lewis Willey, on the date name'd, intended to separate and set apart, and did separate and set apart, from his other property, the said notes and certificates, as the property of Lavalette O’Neil and Calista Warner; that at that time he intended to and did retain possession of said property, and appropriate to himself the income thereof; that he manifested his intention to one of his bankers and to Mr. Sherwood; that he, in effect, stated to those gentlemen that the beneficial interest in the principal sum represented by the notes and bank certificates was in Lavalette O’Neil and Calista Warner; that he should retain the bills of sale and property until his death, and that at that time the bills of sale, notes, and certificates should be delivered to the beneficiaries, and that until that time he should collect and appropriate to his own use the interest, but should preserve intact the sums so set apart; that during the time that transpired before his death he repeatedly acknowledged the relation assumed, regarded himself as holder in trust for the parties named, and, as such, under obligations to account, sedulously observed the terms of the trust, and, at his death, left both funds intact, as evidence of its execution.

It is insisted that the gift was incomplete, and that the existence of the bill of sale is inconsistent with an intention to create a trust. The creation of a trust does not depend upon the use of a particular form of words, but it may be inferred from the facts and circumstances of the case. Crissman v. Crissman, 23 Mich. 217; Ellis v. Secor, 31 Mich. 185; Miller v. Aldrich, Id. 408; Leland v. Collver, 34 Mich. 418; Huxley v. Rice, 40 Mich. 73; Cummings v. Corey, 58 Mich. 494; Chadwick v. Chadwick, 59 Mich. 87; Beaver v. Beaver, 117 N. Y. 421, 428. In the last case cited it is said, “To constitute a trust, there must be either an explicit declaration of trust, or circumstances which show beyond reasonable doubt that a trust was intended to be created.” The character of the transaction is to be determined, not alone from the bills of sale, but from all the facts and circumstances connected with the transaction. A bill of sale is not essential, as a declaration of trust is sufficient, of itself, to transfer the equitable title. Nor is its existence inconsistent with the intention to create a trust, where it appears to have been intended to operate as a conveyance of the legal title after full performance of the trust. A holding in .trust involves possession, control,- dominion, reinvestment, and the legal title. In orde'r to create a trust in the donor, a mere intention or promise to give in futuro is insufficient. There must be an act, or series of acts, which divest the donor .of the equitable ownership, and vest such ownership in the donee. Under the rule laid down in Ellis v. Secor, supra, the execution of an instrument which, if delivered, would operate as a transfer of the title, with intent to effectuate such purpose, operates as a deolaration of trust, although the possession of such instrument be retained by the grantor. There are authorities, however, which hold that an assignment intended as a gift in prmsenti, but incomplete for want of delivery, cannot be construed as a declaration of trust. Those cases will be found, upon examination, to be instances of mere naked assignment, without other indicia of an intent to create a trust. Young v. Young, 80 N. Y. 422, is a case of that class. Indorsements had been made upon envelopes containing bonds, and the donor had exhibited the packages, with the indorsements thereon, to the wives of the intended donees, with the statement that he believed he had made a valid disposition of the bonds. The court held that the case was one of imperfect gift, and that the transaction could not be sustained as a declaration of trust. It is said in that case that the donor could not at the same time be both trustee and cestui que trust. This court lias held otherwise in Edinger v. Heiser, 62 Mich. 598, and Love v. Francis, 63 Mich. 181. The New York case contains a very elaborate discussion of the main question, criticising the authorities cited with approval by the court in Ellis v. Secor, supra.

It is not necessary, however, to rest the present cases upon the fact of the execution of the bills of sale. Here we have other evidences of a manifest intention to create a trust: The parol declaration of such a purpose; subsequent conduct and statements confirmatory of such purpose; and, at the close of the donor’s life, the two funds still separated from other like property, and intact. In Milroy v. Lord, 4 De Gex, F. & J. 264, Lord Chief Justice Turner said:

“I take the law of this court to be well settled that, in 'order to render a voluntary settlement valid and effectual, the settlor must have done everything which, according, to the nature of the property comprised in the settlement, was necessary to be done in order to transfer the property and render the settlement binding upon him. He may, of course, do this by actually transferring the property to the persons for whom he intends to provide, and the provision will then be effectual; .and it will be equally effectual if he transfers the property to a trustee for the purposes of the settlement, or declares that he himself holds it in trust for those purposes; and, if the property be personal, the trust may, as I apprehend, be declared either’in writing or by parol.”

In Richards v. Delbridge, L. R. 18 Eq. 11, 15, the court say:

“The true distinction appears to me to be plain and beyond dispute. For a man to mate himself a trustee, there must be an expression of intention to become a trustee, whereas words of present gift show an intention to give over property to another, and mot retain it in the donor’s own hands for any purpose, fiduciary or otherwise.”

The present cases come clearly within this rule. It was not necessary that decedent should have made a formal declaration of trust. Its equivalent is all that was necessary. Decedent, however, in conversation with one of the witnesses, gave his own interpretation of what he had done, when he stated that he held the property in trust.

A full discussion of the English cases will be found in Ellis v. Secor, where a voluntary assignment of a chose in action is held to be a sufficient declaration of trust, if the grantor meant to pass the property, and, further, that the retained possession by the grantor of a voluntary deed of gift or settlement is not inconsistent with its enforcement, if intended to be effectual, and if capable of transferring title by its terms. In Johnson v. Smith, 1 Ves. Sr. 314, there cited, possession of a deed of gift of chattel interests and securities was retained by the donor, and was mot intended to 'operate a beneficial interest in the grantee until the death of the grantor. See, also, Bunn v. Winthrop, 1 Johns. Ch. 329; Martin v. Funk, 75 N. Y. 134. Acceptance by the donee was not necessary. That may be implied when the gift, otherwise complete, is beneficial to the donee. Higman v. Stewart, 38 Mich. 513; Beaver v. Beaver, 117 N. Y. 421; Martin v. Funk, supra.

In the Warner case the court ruled as follows:

“I understand that it is agreed here that Orville Willey and the other Willey (Bradley Willey) are children and heirs at law of Lewis Willey, deceased; and it is proposed to show by them statements that were made by their father, and facts and circumstances that came within his knowledge, as well as their own, to show what disposition was made of this identical property. The court holds that that, under the statute, would be clearly incompetent, 'and declines to receive it. This ruling is to be taken as though the evidence was taken, and it came up on a motion to strike the same from this case.”

The ruling was correct. Howard v. Patrick, 38 Mich, 795; Ripley v. Seligman, 88 Mich. 188; Penny v. Croul, 87 Mich. 15.

The decree in each case is affirmed, with costs in each to complainant.

The other Justices concurred.


source: Caselaw Access Project

author: Long, J.

license: Public Domain

text:
    BURROWS v. DELTA TRANSPORTATION CO.
    1. Trial — Remarks of Court.
    Where there is evidence fairly tending to establish the plaintiffs case, it is reversible error for the court to state, in the presence of the jury, that the testimony is so indefinite and unsatisfactory that it will not justify a verdict, although he finally permits the case to go to the jury.

      Z. Constitutional Law — Interstate Commerce — Steam Vessels— Duty to Provide Fire Screens.
    The State may enact laws for the protection of the health, lives, and property of its people in respect to those subjects over which Congress has the power to legislate, and such laws are valid and may be enforced so long as they do not conflict with Federal legislation. A vessel engaged in interstate commerce, therefore, is subject to the provisions of 1 How. Stat. § 2033, requiring steam vessels navigating the waters of this State to be provided with suitable fire screens, since said statute is not in conflict with the act of Congress relating to the equipment of steam vessels (Rev. Stat. U. S. chap. 1, 2, tit. 52) and the regulations adopted thereunder by the board of supervising inspectors.
    3. Steam Vessels — Neglect to Supply Spark Screens — Setting Fires — Liability op Owner — Instructions.
    1 How. Stat. §§ 2033, 2034, provide that all vessels using wood for fuel shall be supplied with fire screens “ of the best approved kind, shown by experience to be proper and suitable for protection from fire,” and that a vessel owner failing to comply with such requirement shall be liable for loss by fire occasioned by reason of his neglect. In an action under said statute there was evidence tending to show that there were fire screens in use having a mesh not exceeding one-quarter of an inch square, and that by the use of such screens all dangerous sparks were prevented from escaping. Plaintiff requested an instruction that if the jury should find that, by reason of defendant’s neglect to provide his vessel with a suitable fire screen, sparks escaped from the smokestack, and set fire to and destroyed plaintiffs property, defendant would be liable. The request, as given, was qualified by the statement that it appeared from the testimony that the fire screen approved by witnesses had a mesh three-eighths to one-half an inch square; that, “ if a fire screen of that kind would totally prevent this fire, I give you that request; but, if this fire should be set by the smaller sparks, I could not give it to you, because the statute says that the injury must be occasioned by the lack of the fire screen, and, if the fire screen did not prevent the small sparks shown by the testimony, there would be no liability.”' Held:

    (1) That the jury should not have been permitted to consider whether the fire would have been prevented by using a screen with a half-inch mesh.
    (2) That the instruction given was also improper in that it required the jury to find, not whether the fire was set by large sparks or small ones, but whether the use of such a screen would or would not have prevented the escape of small sparks.
    (3) That the request as framed was proper, and should have been given.

      4. Same.
    It is error in such a case to instruct the jury that, in determining whether the use of a spark screen upon the smokestack would have prevented the fire, they may act on their own judgment, experience, and knowledge, instead of confining them to the evidence in the case.
    5. Same.
    Expert testimony as to the character of the sparks which, under certain circumstances, would come out of a smokestack, offered for the purpose of showing that the fire might have been set by another vessel than defendant’s, is insufficient to justify a submission of that question to the jury, where the undisputed testimony is to the effect that at the time no sparks were coming from such other vessel.
    6. Constitutional Law — Extent of Legislative Power.
    A statute will not be declared unconstitutional and void solely on the ground of unjust and oppressive provisions, or because it is supposed to violate the natural, social, or political righis of the citizen, unless it can be shown that such injustice is prohibited or such rights guaranteed or protected by the Constitution.
    7. Same — Title of Act — Steam Vessels — Duty to Provide Eire Screens.
    Act No. 183, Pub. Acts 1881 (1 How. Stat. §§ 2033, 2034), entitled “ An act to compel steam vessels navigating the waters of the State to provide fire screens for smokestacks, and to provide a penalty for its violation,” is not unconstitutional as contravening section 20, art. 4, of the Constitution, providing that “no law shall embrace more than one object, which shall be expressed in its title,” although it authorizes a recovery for damages sustained by reason of a failure to comply with its provisions. The term “penalty,” as used in the title, is sufficiently broad to include the liability imposed for damages, as well as the liability to fine and imprisonment.
    8. Same — Reasonableness.
    The requirement of said act that the screens “ shall be of the best approved kind, shown by experience to be proper and suitable for protection from fire,” is not unreasonable, being no more burdensome than the requirement imposed by the common law under such circumstances. Neither the statute nor the common law, however, requires the use of any appliance that will endanger the vessel.

      9. Same — Repugnancy.
    The fact that the title to the act relates to " steam vessels ” generally, while section 1 requires “ all vessels using wood for fuel” to be provided with fire screens, and section 2 imposes a liability upon the owner of “ any steam vessel ” who neglects to provide such screen, does not render the act .repugnant in its terms, since it is clear that it is intended to apply only to steam vessels using wood for fuel.
    Error to Bay; Maxwell, J.
    Submitted June 14, 1895.
    Decided October 1, 1895.
    Case by George L. Burrows, survivor of himself and Amasa Rust, deceased, against the Delta Transportation Company, for the value of lumber destroyed by fire alleged to have been set by sparks from defendant’s vessel. From a judgment for defendant, plaintiff brings error.
    Reversed.

      Hanchett & Hanchett, for appellant.

      Simonson, Gillett & Oourtriglit (T. E. Tarsney, of counsel), for appellee.
   Long, J.

This action is brought under Act No. 183, Pub. Acts 1881, entitled “An act to compel steam vessels navigating the waters of the State to provide fire screens for smokestacks, and to provide a penalty for its violation,” being sections 2033 and 2034,1 How. Stat.

On November 25, 1890, the plaintiff and Amasa Rust, since deceased, owned and had piled on the dock on the east bank of the Cheboygan river, at Cheboygan, a large quantity of pine lumber, of the value of $50,000 and upwards. The lumber had stood upon the dock during the summer, and had become seasoned and dry. The defendant owned and operated a steamboat called the “Minnie M.,” which was run between Cheboygan and Sault Ste. Marie, carrying freight and passengers, and which used wood for fuel, and had no fire screen of any kind attached to her smokestack. On the morning of November 25, 1890, the boat lay at McArthur’s dock, on the west side of the river, some 1,200 feet above the lumber in question; and, about 5 o’clock in the morning of that day, she was fired up with pine slabs, left the dock, and passed down the river on her clourse and by the lumber in question. The river at this point was about 220 feet wide. At the time of her passing, a strong wind was blowing from the west, and, about 15 or 20 minutes after the boat passed down, the lumber was seen to be on fire. It was entirely consumed.

The plaintiff, to establish his claim, called several witnesses, who testified substantially as follows:

Charles J. Kitchen: That he was master of the tug C. B. Strohn, which lay on the east side of the river, above the Minnie M.; that he saw the Minnie M. winding at McArthur’s dock; that his attention was attracted to her by fire coming nut of her smokestack; that there was a large volume of sparks escaping from the stack, going across the river, eastward; that he watched her until she got around with her stern pretty well up the river, watched her five or six minutes, may be longer; that there were lots of sparks coming from the Minnie M. at that time, more than there ordinarily are when they are starting up the fire; and that there were more sparks than he ever saw coming out of the smokestack of a steamboat.

Paul Verette: That he was a policeman for nearly six years in Cheboygan, and while on his watch, about half past á o’clock on that morning, he was standing on the bridge which was above where the Minnie M. lay; that he saw her as she was just leaving McArthur’s dock, and saw her four or five minutes; that the sparks coming out of her smokestack drew Ms attention; that there was a lot of them, and there was a pretty high wind right across the river from the niorth-west towards the southeast; that the sparks coming out of the stack were going across the river among the lumber piles on the east side of the river; that, when he last saw the boat, she was passing Nelson’s mill (Nelson’s mill and the Cheboygan Lumber Company’s mill are the same), and was throwing sparks at that time which were going towards the lumber piles. The sparks were coming out very thick, just the full of the smokestack.

Reuben H. Mosher: That he was the captain of the tug Cuyler; that the tug passed down the river before the Minnie M., and came back, and tied up to the dock on the east side of the river, about 1,200 feet below the point where the Are broke out. He was lying down in the tug Cuyler when the Minnie M. went by him. About 15 minutes after the Minnie M. passed, he was called by Jarvis, who was aboard of the tug, and got up, and saw the Are in the Arst pile next to the mill. It had just started, and was about 12 feet above the dock, and about 4 or 5 feet down from the top of the pile nearest to the front of the dock towards the river.

James Taunt: That 'he was Areman on the tug Cuyler, and that, while she lay at the dock below the lumber, he came up on deck, and saw the Minnie M. go down the river as he came up. She was somewhere about abreast of the Cheboygan Lumber Company’s mill. Sparks were coming out of her smokestack about the full of the smokestack. He called the attention of Mr. Harrington, who also looked out. Taunt continued to look at the Minnie M. until she passed the Cuyler. The sparks which he saw-coming from the smokestack were going right into the lumber on the east side of the river, into the two piles below the mill.

Dewitt C. Harrington, the engineer of the tug Cuyler, testiAed that Mr. Taunt called him out to see sparks coming out of the Minnie M. He went on deck, and saw sparks coming out of the smokestack of the Minnie M., an unusual amount coming out, — some big ones and some little ones. They were going across the river to the east side. He continued to watch the boat until she got past the Cuyler. The sparks continued to dome out of her during the whole time she was going down the river. As the sparks went to the east side of the river, some of them went onto the piles, some of them went into them, and some over them. Some 10 or 15 minutes afterwards the alarm was given. He went on deck to see the fire. He saw sparks going in at about the place where the fire was in the lumber.

George Adams, who was engineer on the city waterworks, and was on watch at the waterworks at the time, testified that he saw the Minnie M. going down the river; saw her after she left the dock until she got out to the end of the lumber piles, going out of the river; and saw her throwing fire out of her smokestack, quite a good deal of it, during the whole time he saw her. About 15 or 20 minutes after the Minnie M. went down the river, he sa.w the fire in the lumber piles. The sparks, as he saw them coming out of the stack, were going across the river towards the lumber piles.

After the above witnesses had testified, the plaintiff called Thomas McGnrraty, who had had 12 years’ experience as captain of a tug, and who testified to the use of fire screens to prevent the escape of fire, and 'on the subject of the different kinds of screens used. At this point the court interposed, and the following took place:

“The Court: Have you got any more testimony as to the clause of the fire?
“Counsel: Oh, yes, sir.
“The Court: I went down on the bridge here [in Bay City] last night, and I looked up towards Twenty-Third street bridge. It is less than a mile and a half, and it seemed to me that the evidence in on that subject is too uncertain to base a verdict on it,- — the evidence as to the setting of the fire to the lumber by the Minnie M.
“Counsel: We except to the statement of the court.
“The Court: It appears that the night, while not intensely dark, was not a moonlight night, cloudy, and the sky full of scuds, and a heavy wind. I don’t think that -anybody from either the upper part of the river, or where this tug laid, as marked on the map, can tell with any degree or even probability that the Minnie M. set that fire, from the testimony in.
“Counsel: We have offered as direct testimony upon that subject as we -have.
“The Court: Have you offered it all?
“Counsel: We have not offered it all, hut it is all of the same kind. There isn’t any other testimony that we have that will bring it closer than that. We have evidence of other witnesses relatively in the same position that the witnesses who have sworn were to the same occurrences. If that is your honor’s view, our testimony could only be made stronger by having more witnesses to the occurrences.
“Counsel: We except to the statement of the court.
“The Court: What have you to say about the right of the jury to base a verdict on what there is of it?
“Counsel: We simply sa.y we think it is sufficient to show the cause of the fire absolutely and conclusively.
“The Cou/rt: Under the statement of counsel, I shall feel compelled— I don’t think it would be doing my duty to allow a verdict on the testimony to stand in favor of the plaintiff, if one was obtained. You can take such course about it as you are a mind to, with that intimation. I shall feel in duty bound to instruct the jury as to the totally unsatisfactory species of evidence as to the cause of the fire. If boats on this river can. be held liable upon such proof, there is no use of boats entering the Saginaw river. It would absolutely banish commerce upon this stream. Tugs are running around herd, from here to t'he mouth of the river, and they never did, as a general thing, use spark arresters. The larger vessels never use them at all. They lie right here by the lumber docks, load lumber for days and weeks, and are passing up and down the stream every day; and I should want the most conclusive and direct proof of the fact of setting the fire, in order to allow a verdict in such case.
“Counsel: We except to the statement of the court.
“The Court: It appears from the testimony that the cut in the harbor is something more than a mile and a half.
“Counsel: Not over a mile.
“The Court: Very well. Twenty-Third street bridge is about a mile and sixty rods from the Third street bridge here. No mortal man can go onto the Third street bridge, and tell anything about the setting of fire up there, from the mere fact that sparks are escaping.
“Counsel: Don’t, understand us to concede that the witnesses were a mile away from the place.
“The Court: The first witness was on a bridge which was some 900 feet from the mill, and that was some 400 feet from the place where the fire commenced.
“Counsel: No, 150 feet.
“The Court: I think it is some 1,400 feet from where the fire started. It is 150 feet beyond the slip leading from the rear of the mill. He was looking down that way. The other witness, — that was on the Strohn, — he saw the Cuyler pass him, and watched her outside. He noticed the boiat when she was considerably, — this fire casting out a great many sparks; and she went out of the harbor throwing out more or less sparks. Now, it is a fact that, while all coal don’t make sparks like soft wood or pine slabs, there is fire there, and occasionally fires are caught from coal sparks. Still, there is no proof that this boat emitted a spark within 500 feet of the place where the fire caught in the lumber at all in either direction. It is totally lacking in definiteness and certainty. I don’t see anything certain about it. It may have been so, and that is all you can say of it.
“Counsel: Under this Statement, the only thing that is left for us to do is to put our testimony in shape to save the question, for, after what your honor has said to the jury, it would be useless for us to go to them on the question of fact.
“The Court: You can put your offer or your claim in any shape that you are a mind to, and I will pass on it. 1 cannot try another case today unless the parties are ready. If you desire it, you can have time for conference together until later in the day. It may be that my experience with boats influences my judgment, but in my mind there is nothing to indicate that this boat set that fire.
“Counsel: Note an exception to the statement of the court.
“Counsel to witness: Where do I understand that you have used these spark screens on your tugs?
“A. At Muskegon, and in the Muskegon Lake. Spark screens on tugs are generally used at Muskegon; used on the smokestacks or in the smokestacks.”

Several witnesses were thereafter called, who testified to having seen sparks from this boat falling upon the lumber; but this testimony was no more direct as to the origin of the fire than that above quoted. No evidence was given nor attempt made to account for the setting of the fire other than by sparks from this boat. The only other boat passing down the river that morning was the tug Cuyler, which was burning coal for fuel, and which, plaintiff’s testimony showed, did not throw sparks on that occasion.

Counsel for plaintiff then offered to show further, by several witnesses, that sparks were seen coming from the stack of the Minnie M., and passing over and upon the lumber, when the court remarked: “Another witness testified here that he saw the sparks going into or on the lumber, but his position was such that I don’t regard it as of any consequence.”

Defendant then offered testimony tending to contradict plaintiff’s testimony, and to show that no sparks were coming out of the stack of the Minnie M, on that occasion, and to show that she was equipped with a damper and a flue cap, which were in order; that the damper was closed, and the flue cap open, when she passed down the river; and that, when in that condition, dangerous sparks would not escape from the smokestack.

Although the court had so commented upon the testimony of the witnesses for plaintiff, he Anally concluded there' was some evidence which the jury might consider as to the origin of the fire, and stated to counsel that he would so submit it. The plaintiff’s case was so greatly prejudiced by these and other remarks of the court below that a new trial should be granted upon this branch of the case alone; and, in view of a new trial, we shall pass upon the other assignments of error.

The manager of the defendant company was called as a witness, and was permitted to testify that the Minnie M. ran in connection with the Detroit & Cleveland Steam Navigation Company (running from Detroit and Cleveland to Cheboygan and Mackinaw), the Northern Michigan Line (from Chicago), the Grummond Line (from Toledo, Cleveland, and Detroit), the Grand Bapids & Indiana Bailroad (running from Indiana to Mackinaw), and the Michigan Central Bailroad; that an arrangement* for a joint tariff had been made with the Grand Rapids & Indiana. Railroad Company for carrying freight; that the Minnie M. carried freight and passengers on its line destined for points outside of Michigan, and from outside of the State destined for points along the line of its route in this State; also-, that it had arrangements with each of these transportation lines in regard to carrying freight and passengers. This evidence was taken under the objection of plaintiff’s counsel, and was introduced for the purpose of showing that the Minnie M. was engaged in interstate commerce, and therefore no recovery could be had.

This question was settled in Cheboygan Lumber Co. v. Delta, Transportation Co., 100 Mich. 16. In that case evidence was given upon the same point, and the following requests presented by the defendant:

"The Minnie M., on the day alleged in the declaration, being engaged in interstate commerce, is not liable for any damages she may have caused by reason of not having a fire screen attached to her smokestack, as required by Act No. 183 of the Laws of 1881, such act being an attempted regulation of interstate commerce; and the plaintiff cannot therefore recover.”

Also:

“The laws and regulations passed by Congress regulating steam vessels contain no provisions requiring fire screens to be attached to the smokestacks of steam vessels; and the Minnie M.,”on the date alleged in the declaration, being engaged in interstate commerce, her owners and masters Avere not bound to Inrve such an appliance on its smokestack.”

These requests were refused, and this court, in considering that question, held that the fact that the boat was-engaged in interstate commerce, and that it was enrolled, and («quipped and provided Avith all the machinery and mechanical appliances required by the act of Congress and the regulations adopted thereunder by the board of supervising inspectors, did not relieve the owners of the vessel from their liability, under the common law, for injuries done by fire escaping from the smokestack of the vessel; and that they would be liable for such injury, arising from a failure to use a fire screen in the smokestack, although such fire screen was not required by the laws of Congress or the rules of the supervising inspectors, if reasonable care at the common law required the use of such fire screen. After considering the provisions of the act of Congress, it was said:

“We cannot, therefore, hold that the act of Congress relieves the defendant from its liability at the common law, and its duty to use appliances which experience lias shown to be requisite, by common prudence, for the protection of property on the banks of the public highways traversed by its boats.”

The principle in that case was that the legislation of Congress had not excluded the application of the common law upon this subject in reference to the operation of steamboats; that the common law existing in this State continues in force, notwithstanding the legislation of Congress, so long as the law enacted by Congress and the law of the State do not conflict.

That case, however, was brought upon the common-law liability of the defendant to answer for its negligence in setting the fire. In the present case suit is brought upon the statute, which provides:

“Section 1. That all vessels using wood for fuel, navigating any of the waters of this State, shall be provided with suitable fire screens attached to the smokestack of such vessels to prevent the escape of fire. Such fire screens shall be of the best approved kind, shown by experience to be proper and suitable for protection from fire.
“Sec. 2. The owner or owners and master of any steam vessel navigating the waters of this State who shall neglect to provide his or their vessel with the fire screens attached to the smokestacks of said vessels, as mentioned in section one of this act, shall be deemed guilty of a misdemeanor, and upon conviction thereof shall be Twnished by a fine of one hundred dollars, or by
confinement in the county jail not exceeding thirty days, or by both such fine and imprisonment, in the discretion of the court. * * * The owner of such vessels shall also, when any person is injured in person or property by reason of fire occasioned by the neglect of such owners of such vessels to comply with the provisions of section one of this act, be liable to the amount of damages sustained to the person so injured, to be recovered in any court of competent jurisdiction in this State.”

But the common law is no more and no less a particular law of the State than this act of the legislature; and, if the omission to employ means for the protection of property which are required by the common law creates a liability, the omission to employ the same means or like means required by the provisions of a statute of the State would create a like liability, since the statute is no more in conflict with the law of Congress than is the common law of the State in conflict with it. . The Common law of the State and a statute of the State are in the same sense laws of the State. Smith v. Alabama, 124 U. S. 475. The principle has received abundant adjudication that the State may exercise its power to make regulations for the protection of the health, the lives, and the property of the people of the State against the dangers arising under interstate transportation and commerce, concurrent with laws passed by Congress in the exercise of the jurisdiction of Congress over the same subjects, and that the laws of the State are valid and may be enforced so long as they do not conflict with the provisions of Federal legislation. King v. Transportation Co., 1 Flip. 1; City of New York v. Miln, 11 Pet. 102; Goodrich Transportation Co. v. Gagnon, 36 Fed. 123; Johnson v. Elevator Co., 119 U. S. 388, at pages 399, 400; Transportation Co. v. City of Parkersburg, 107 U. S. 691, at pages 700-707; County of Mobile v. Kimball, 102 U. S. 691; Huse v. Glover, 119 U. S. 543; Sands v. Improvement Co., 123 U. S. 288; Morgan’s Steamship Co. v. Board of Health, 118 U. S. 455; Sherlock v. Ailing, 93 U. S. 99; Harrigan v. Lumber Co., 129 Mass. 580; People v. Jenkins, 1 Hill, 469; Smith v. Alabama, 124 U. S. 465.

It was held in Cheboygan Lumber Co. v. Delta Transportation Co., supra, that, by the common law oí this State, appliances should be used which experience has shown to be reasonably effective in avoiding danger, and that none of the provisions of the act of Congress show any intent to legislate upon or provide for the protection of persons or property on land. It was said:

“If we look to the regulations adopted by the board of inspectors, the same purpose is manifest. Nothing enumerated in the certificate of inspection conflicts with the common-law rule as to the duty which is imposed by the common law in regard to the protection of persons and property upon shore and within the jurisdiction of the respective States. It would seem, therefore, to be a reasonable conclusion that it was not the intention of Congress to abrogate all the rules of the common law relative to liability for injuries inflicted by the negligence of vessel owners in not supplying their vessels with appliances which common experience has shown to be requisite for the proper protection of persons and property upon shore, and the use of which would not endanger the safety of persons and property on board.”

The act under which the present suit is brought was passed nearly 15 years ago, and with the provisions of which, it is apparent, many vessels navigating the waters of the State have complied, and we find nothing In the act of Congress or the regulations of the supervising inspectors in conflict therewith; and what was said in Cheboygan Lumber Co. v. Delta Transportation Co. is equally applicable in the present case, though the action is brought under the statute, and not in reliance upon the common-law liability. Railroad companies running their trains are as much engaged in interstate commerce as is' the defendant in running this steamboat between Cheboygan and Sault Ste. Marie. The various States have enacted statutes requiring specific precautions to be taken in running trains, for the purpose of protecting life and property in the State against dangers arising from the operation of railroads. These statutory regulations are upheld against the objection made that the railroads affected by -such regulations are engaged in interstate commerce. Smith v. Alabama, 124 U. S. 465; Nashville, etc., R. Co. v. Alabama, 128 U. S. 96; Union Pacific R. Co. v. De Busk, 12 Colo. 294; McCandless v. Railroad Co., 38 S. C. 103; Hennington v. State, 90 Ga. 396; Western Union Telegraph Co. v. Tyler, 90 Va. 297.

The court was therefore in error in permitting this testimony, as it was wholly irrelevant and incompetent. It had no place in the case. There is nothing in the fact that the boat was engaged in interstate commerce which in any manner affected the question of the- defendant's liability.

The plaintiff requested the court to charge as follows:

“It is admitted in this case by the defendant that on the 25th day of November, 1890, the defendant was the owner of the vessel called the 'Minnie ,M.;’ that she was then operated by the defendant, and was engaged in navigating the Cheboygan river; and that her route extended from Cheboygan to Sault Ste. Marie, in the State of Michigan, and that on that route she carried freight and passengers, stopping also at intermediate points in the State. It is further admitted by the defendant that she had no fire screen attached to the smokestack of the vessel to prevent the escape of fire. The evidence in this case is undisputed that on the morning of November 25, 1890, she left McArthur’s dock, in Cheboygan, passing down the Cheboygan river on her route, going by the place where the plaintiff’s lumber was situated, and that, after she had passed by the lumber, fire was discovered in the lumber, which spread and consumed the lumber. If the jury find that by reason of the neglect of the defendant to provide the said vessel with a suitable fire screen attached to her smokestack, to prevent the escape of fire, fire or sparks escaped from the smokestack of the vessel, and fell upon the lumber, and caused it to be set on fire and to be burned and destroyed, the defendant is liable to the plaintiff to the amount of the damage thereby sustained by the plaintiff.”

The court declined to give the request as presented, but gave it with this additional qualification:

“It appears from the testimony that this fire screen that is approved of by these masters who have testified about it has a mesh of iron three-eighths to half an inch square. If a fire screen of. that kind would totally prevent this fire, I give you that request. But, if this fire should be set by the smaller sparks, I could not give it to you, because the statute says that the injury must be occasioned by the lack of the fire screen, and, if the fire screen did not prevent the small sparks shown by the testimony, there would be no liability.”

The testimony on the part of plaintiff in respect to the spark screens which were used on vessels, and the size of- the mesh of those screens, was given by Charles J. Kitchen, who describes the butterfly screen as a screen placed inside of the smokestack, and opened and closed by a lever, the size of the mesh used being a quarter of an inch; Thomas McGarraty, who testified to the use of a bonnet screen, and gives the size of the mesh as a quarter of an inch; James Smith, who testified in relation to the butterfly screen, and gave the size of the mesh as a quarter of an inch; Charles Robinson, who gave the size of the mesh of the same kind of screen as about a quarter of an inch; and Albert Todd and John McLaughlin, who testified as to the use of the butterfly screen, but did not give the size of the mesh, — from which evidence on the part of the plaintiff it will be seen that there was no foundation for the statement of the court that “•it appears from the testimony that this fire screen that is approved of by these masters who have testified about it has a mesh of iron three-eighths to half an inch square.” The request should not have been qualified by any such statement. The jury had no right to consider whether the fire would have been prevented bousing a screen with a mesh a half an inch square.

The latter statement of the court that, “if this fire should be set by the smaller sparks, I could not give it to you, because the statute says that the injury must be occasioned by the lack of the fire screen, and, if the fire screen did not prevent the small sparks shown by the testimony, there would be no liability,” taken in connection with the statement that the fire screen that had been approved by the masters who had testified had a mesh half an inch square, and, if a fire screen of that kind would totally prevent the fire, he would give the request, conveyed to the jury the idea that, if a fire screen having a mesh a half an inch square did not prevent the escape of small sparks, there would be no liability on the part of the defendant, and put the case to them so that they were required to find, not whether the fire was set by large sparks or small ones, but whether the use of a fire screen having a mesh a half an inch square did or did not prevent small sparks from escaping.

The request as framed covered correctly the question, and should have been submitted to the jury. The evidence described two different kinds of screens, — the butterfly screen and the bonnet screen. It described screens having a mesh not exceeding one-quarter inch, and also tended to show that by the use of such screens all dangerous sparks were prevented from escaping. The statute under which the action is brought required that vessels should be provided with screens that “shall be of the best approved kind, shown by experience to be proper and suitable for protection from fire.” It was for the jury to determine from the evidence which of the various screens shown to have been used was the best approved kind, proper and suitable for protection from fire.

After describing to the jury the size of the meshes of the screen which they were to take into account, the court charged the jury as follows:

“Now, if from your judgment and experience and knowledge, or better understanding of the testimony, you can say that there were large sparks that ought to have been arrested by the spark catcher, you can find a verdiet for the plaintiff; otherwise, you will find that there is no cause of action. The whole right to recover depends on this fire happening, being occasioned by sparks that would have been checked by this spark arrester.”

This charge is a direction to the jury that they may determine the question of fact involved as to whether the employment of a screen upon the smokestack would have prevented the fire, by acting on their own judgment and experience and knowledge. They should have been directed that they were to determine the facts in the case, not from their judgment or experience or knowledge, but from the testimony given by the witnesses on the trial of the case.

The court also charged the jury:

“You will also consider in that connection the evidence in regard to the Cuyler. She went down the river, and she had banked up her fires in the evening before; she had put fresh coal on, and shut the damper. According to this expert from Milwaukee, the effect of that was to coke the coal, which rendered it light and easy for it to fly, to be burned and thrown up in sparks, and that these sparks would last a long time, — longer than wood, I think he stated.”

This evidence referred to as given by the expert from Milwaukee is in the- testimony of the defendant’s witness John V. Tuttle, the whole of which is as follows:

“Q. Suppose a furnace has the fires banked in it, — a coal fire, — and it is allowed to remain banked for some hours, and then the fires are raked out upon the grates. What is the character of sparks that would be driven through the flues- and out of the smokestack?
“A. The sparks in such a case would be in the nature of coke, or very much the same as charcoal; a little heavier than charcoal sparks when the fire is first started. When the fire is first raked down, probably for 15 or 20 minutes, the sparks escaping from the stack, if there should any escape, would be in the nature of coke, light, much lighter than ordinary coal sparks.
“Q. Can you tell whether sparks of that character retain fire for any length of time?
“A. They do. In fact, so that I have known them sometimes to burn little spots on the deck of a boat where they came out of a stack and fell down. They would blow away from the boat if there was a high wind, and they would retain their heat longer than a wood spark.”

The only apparent object in referring to this testimony in the charge was to indicate to the jury that they might find from this that the fire was set by the tug Ouyler, and not by the Minnie M. The testimony in reference to the tug shows that her fires were banked down, and, when she started out on that morning, the fire was raked down, some fresh coal put on, and that no sparks were going out of her stack while on the way down. Several witnesses were called who testified positively that there were no sparks coming out of her stack. The court was in error in this statement, as it was unwarranted by the testimony in the case.

Counsel for defexxdant do not attempt in their brief to answer any of the errors claimed by the plaintiff and here discussed, but coxxtent themselves with a discussion of the provisions of the statute under which the action is brought, which they claim is unconstitutional, and for that reason no action could be xxxaintained upon it.

1. It is contended that the act contravenes section 20, art. 4, of the Constitution of this State, which provides: “No law shall embi’ace more than one object, which shall be expressed in its title.” It has been uniformly held in applying this provision of the Constitution that, if the title of the statute expresses a general purpose, all matters fairly and reasonably coxxnected with that purpose,' and all measures which are convenient or appropriate or fairly calcxxlated to facilitate the accomplishment of that purpose, are properly parts of the statute. As was said in Kurtz v. People, 33 Mich. 282:

“It is a very wise and wholesome px’ovision, ixxtended to prevent legislators froxn being entrapped into the careless passage of bills on ixiatters foreign to the ostensible purpose of the statute as entitled. But it is not designed to require the body of the bill to be a mere repetition of the title. Neither is it intended to prevent including in the bill such means as are reasonably adapted to secure the object indicated by the title.”

It is contended, however, that no person reading the title to this act would expect to find provisions for recovery of damages occasioned by neglect to provide fire screens for smokestacks. But the title to Act No. 206, Pub. Acts 1893, was no more specific. The title specified several specific and particular acts to be done, to wit, to assess property, to levy taxes, to collect the same, to make them a lien, to establish and continue such lien, to provide for the sale and conveyance of the lands, and to provide for the inspection and disposition of lands bid off to the State. By section 135 it is provided that no deed shall be recorded until a certificate is furnished showing the payment of all taxes; and further:

“A violation of the provisions of this section by any register of deeds shall be deemed a misdemeanor, and, upon conviction thereof, he shall be fined not to exceed one hundred dollars, and he shall further be liable to the grantee of any instrument so recorded for the amount of damages sustained, to be recovered in an action for debt in any court of this State.”

This act was under consideration in Van Husan v. Heames, 96 Mich. 504, and the objection made that it contravened this provision of the Constitution. The act was upheld.

We think the act in the present case is not vpid upon the ground stated. The following cases also sustain this principle: City of Grand Rapids v. Judge of Superior Court, 93 Mich. 472; Hall v. Judge of Superior Court, 88 Mich. 438, at page 440; People v. Hurlbut, 24 Mich. 44, at page 57; People v. Wands, 23 Mich. 385, at page 389; People v. State Ins. Co., 19 Mich. 392, at page 398; People v. Mahaney, 13 Mich. 481, at page 495.

But it is said that the object of the act is to compel the use of fire screens by steam vessels, and to provide a penalty for the violation of-that requirement, and that the term “penalty,” as used in this title, excludes the idea of the imposition of damages to be paid to the party injured. The term “penalty,” as used in the title, is intended to include the liability imposed for damages, as well as the liability for fine and imprisonment. As was said in Grover v. Huckins, 26 Mich. 476: “The term ‘penalty’ is used very loosely in statutes in some cases, and might without much strain of its ordinary meaning be held to embrace all the consequences visited by law upon the heads of those who violate police regulations.” The term “penalty” is used as covering and including the imposition of damages in Act No. 813, Pub. Acts 1887, which was under consideration in Robison v. Miner, 68 Mich. 549, where, by section 20. of the act, it is provided that persons violating certain provisions of the act “shall, in addition to all other penalties provided for by this act, be liable for both actual and exemplary damages therefor,” etc. See, also, Hartford Fire Ins. Co. v. Raymond, 70 Mich. 499, in which it said: “An act to regulate a business must of necessity visit some sort of punishment or penalty for violations of its provisions, as the penalty is the only lever that could give practical effect to the law.”

2. The objection that the act is repugnant to the acts of Congress on the same subject has been fully discussed, and need not be further referred to; and the objection that fire screens endanger the vessel was disposed of in Cheboygan Lumber Co. v. Delta Transportation Co., supra, in which it was said:

“Of course, the first duty of a vessel owner is the protection of those on board and who are directly under his care. It follows that any device, appliance, or equipment which endangers them cannot be required by law, no matter how great the protection it would furnish to the property on shore. When the dangerous character of such devices is in issue, and the evidence is conflicting, the jury should be very carefully and clearly instructed in the direction above indicated. They should be distinctly told that if they find the device, upon the use or absence of which negligence is based, is dangerous to the boat and to the property and persons on board, the law does not require its use.”

The requirements of this statute are no more imperative than the common law, and may be enforced under the rule laid down in the foregoing case, unless it appears as a fact found in the case that the use of fire screens endangers the vessel, or the property or persons on board.

3. It is further contended that the act requiring a spark screen is unreasonable, and therefore void. The argument is that the requirement of the statute that the screens “shall be of the best approved kind, shown by experience to be proper and suitable for protection from fire,” is unreasonable, because the question whether the kind employed upon the boat, in the endeavor to comply with the statute, was such a screen, must be determined by a jury, and the owner could not beforehand determine how the jury would décide upon that subject; also, if a definite screen were specified, other States might require different screens, and thus the vessel owner be put to inconvenience in complying with the different regulations.

Most of the cases referred to by counsel for defendant in support of this contention relate to city ordinances. Whether the ordinances of a city are valid or not involves the question of whether they are by the courts regarded as reasonable. This rule is applicable only to ordinances. 1 Dill. Mun. Corp. § 319. The courts cannot, however, declare a statute unconstitutional and void solely on the ground of unjust and oppressive provisions, or because it is supposed to violate the natural, social, or political rights of the citizen, unless it can be shown that.such injustice is prohibited or such rights guaranteed or protected by the Constitution. Cooley, Const. Lim. (6th Ed.) p. 197. The learned author says further, at page 200:

“The rule of law upon this subject appears to be that, except where the Constitution has imposed limits upon the legislative power, it must be considered as prajcti cully absolute, whether it operate according to natural justice or not in any particular case. The courts are not the guardians of the rights of the people of the State, except as those rights are secured by some constitutional provision which comes within the judicial cognizance. The protection against unwise or oppressive legislation within constitutional bounds is by an appeal to the justice and patriotism of the representatives of the people.”

This doctrine is upheld in numerous cases cited in the note to page 201.

The rule of the statute, however, is no more onerous than the rule of the common law, nor more difficult to comply with than are the requirements imposed by the courts to guard against danger arising to life and property by the operations of businesses which create such dangers. In Hoyt v. Jeffers, 30 Mich. 181, the suit was against the owner of a sawmill for failure to have a spark screen upon the smokestack or chimney of his mill. After referring to the fact that the mill stood in the midst of a city, and contiguous to wooden buildings, 'and that the degree of care required depended upon the surrounding circumstances, it was said:

“In fact, I think the true rule is that the defendant, in adopting means to check the flow of sparks and to avert the danger in question, under the circumstances of this case, was bound not only to adopt means calculated to avert the danger, but the means which, in -the progress of science and improvement, has been shown by experience to be the best, unless, indeed, it be some invention so recently made as not to be generally known, or which the defendant, by reasonable inquiry for the best means, might not fairly be supposed to have obtained knowledge of.”

In Jackson v. Railway Co., 31 Iowa, 176, suit was brought for damages caused by fire set by a railroad engine. On the subject of the care required by the company to guard against fire, the court said:

“Ordinary care and prudence require the use of thé best contrivances known, and, unless such are used, it will be considered negligence. One who fails to use the best means within his reach to prevent the destruction of property does not exercise the care of a man of common prudence.”

The same rule is laid down in Metzgar v. Railway Co., 70 Iowa, 387; Steinweg v. Railway Co., 43 N. Y. 120; Spaulding v. Railway Co., 30 Wis. 121; Toledo, etc., R. Co. v. Pindar, 53 Ill. 447. In some of the States statutes have been enacted imposing absolute liability for damages arising from fires set by locomotives, and such statutes have been upheld. Ross v. Railroad Co., 6 Allen, 87; Martin v. Railroad Co., 62 Conn. 331; Denver, etc., R. Co. v. De Graf, 2 Colo. App. 42; McCandless v. Railroad Co., 38 S. C. 103. The legislature of this State, in the enactment of the statute under consideration, has imposed no greater burden upon vessel owners navigating the waters of this State than the common-law rule imposes in most of the States upon railroad companies in reference to means to prevent damage to life and property by fires.

4. The objection further madfi by counsel is that the title of the act provides that steam vessels shall provide fire screens, etc., while section 1 of the body of the act provides that all vessels using wood for fuel s'ha.11 have fire screens, etc., and section 2 provides that the owner of any steam vessel neglecting to supply such screen shall be liable, etc., and that, therefore, the act is repugnant in its terms. The rule of construction of statutes requires that a reasonable interpretation be given to the language used in the provisions so as to accomplish the object sought to be reached. The aim and purpose of this statute is to compel steam vessels navigating the waters of this State to be provided with fire screens for smokestacks, and to provide a penalty for violation of this requirement. The object is clear, and the mere omission of the word “steam” before tbe word “vessels,” in section 1 of the act, and tbe words “using wood for fuel” from section 2, does not render tbe act repugnant in its terms. Clearly, it means all steam vessels using wood for fuel.

For the errors pointed out, the judgment must be reversed, and a new trial ordered.

The other Justices concurred.


author:
Hooker, J.
      Grant, J.

text:
    BALHOFF v MICHIGAN CENTRAL RAILROAD CO.
    1. Master and Servant —Safe Place —Injury to Railroad Employ®.
    Plaintiff’s intestate, a brakeman in defendant’s employ, was killed by the derailment of a car that was being backed upon a side tráck, caused by the formation of ice on the tracks at a point where there was a slight depression in the roadbed. Held, that it was the duty of defendant to provide a track which, measured by the standard of good railroading as actually conducted, could be said to be reasonably safe, and that whether it had complied with such duty, or whether it should have foreseen the danger of water freezing over the tracks, and adopted sufficient measures to prevent it, was, under all of the circumstances, a question for the jury.
    2. Same — Assumption of Risk.
    It was also for the jury to say whether the decedent knew or should have known of the existence of-the depression in the track, and should therefore be held to have assumed the incident risks, the fact not being undisputed.
    3 Same — Proximate Cause.
    The fact that a box drain, which had been constructed to carry off the water, had frozen up, thus permitting the water to accumulate and freeze over the rails, cannot he said to have been the proximate cause of the accident, as distinguishable from a defective construction of the track, since the adequacy of the drain in view of probable conditions was one of the qu°stions entering into the determination as to whether a reasonably safe place had been provided.

      4. Same — Negligence of Section Men — Fellow-Servants.
    The duty to furnish a safe place was one that could not be delegated by the defendant so as to relieve itself from responsibility, and therefore, though it may have been within the employment of the section men to remove the ice from the track, they were not fellow-servants of the deceased with respect to the performance of such duties. Grant, J., dissenting.
    5. Same — Contributory Negligence.
    Whether a brakeman, in sitting upon a flat car between two tiers of logs while backing upon a side track for the purpose of making a coupling, was guilty of contributory negligence precluding a recovery for injuries sustained hv being crushed between the logs on the car’s leaving the track, is a question for the jury, the evidence being conflicting as to the danger of the position.
    Error to Bay; Hosmer, J., presiding.
    Submitted June 18, 1895.
    Decided October 1, 1895.
    Case by Margaret Balhoff, administratrix of the estate of George Balhoff, deceased, against the Michigan Central Railroad Company, to recover damages for negligently causing the death of her intestate. From a judgment for plaintiff, defendant brings error.
    Affirmed.

      E. A. Cooley (Henry Russel and Ashley Pond, of counsel), for appellant.

      McDonell & Hall, for appellee.
   Hooker, J.

The plaintiff’s intestate, her husband, was killed upon defendant’s railroad, under the following circumstances: He was acting as a brakeman upon a freight train, a portion of which was being backed upon a siding for the purpose of making a coupling to some cars standing thereon, after having been coupled to two flat •cars loaded with logs. After making the coupling to the flat cars, the deceased sat upon one of them, between two piles of logs, and was killed by the train’s leaving the track and striking another car, which caused the logs to shift and crush him. The intestate had been engaged as

brakeman upon the way freight for two months or more, and was familiar with the road. The accompanying, sketch will serve to illustrate the situation:

At A and B, where the car left the track, was a depression, towards which the water ran from both north and south. There is nothing to indicate that the depression was great, and it is claimed by the defendant to have been so slight as to require a level to detect it. Towards the east side of the yard was an open ditch, parallel with the tracks, between sidings 3 and 4, and there was another between the main track and the side track on the west side of the grounds. There was a sluice, consisting of a box eight inches in diameter, which was constructed to take the water, which came down upon and between the tracks, to the ditch; said sluice being lower than, and running under, side track No. 4. The sluice was constructed in the fall of 1892 by the section men. On January 29, 1893, the snow and ice melted, and water accumulated in the low spot mentioned, covering the rails. It did not run off, because the box drain was frozen. The following night was cold, and the water froze, and a light snow fell, covering the ice. At 2 p. m. on January 30th the accident occurred, the train being thrown from the track by reason of the ice. There was testimony that the section men did not know that the box was frozen or the track covered with ice, not having reached that place in the due course of their daily labor, and that when they reached it they found it (i. e., the box) frozen solid, and it remained so all winter.

It is claimed by the counsel for the plaintiff that the defendant was negligent, in that it did not fill up the depression and lift the trade up, so as to prevent the accumulation of water and ice, or notify its employés of the danger existing at the place, by personal notice, or by a notice posted at the place of danger. The circuit judge allowed the case to go to the jury, and the plaintiff recovered.

Several questions arise in the case, viz.:

1. Was the defendant negligent in constructing and maintaining its road with a depression, without inform.ing its employés?

2. Did the intestate assume the risk, as incident to his employment?

3. Was the alleged negligence the proximate cause of the injury?

4. Was the freezing of the track due to the negligence of the section men, and therefore that of a fellow-servant?

•5. A Vas the intestate guilty of contributory negligence?

The Condition of the Trade: We may properly take judicial cognizance of the fact that it is impracticable to construct railroads upon a level. Indeed, most roads in this country are built upon a succession of inclines, in approximate conformity to the natural surface of the ground. AVe may also recognize the palpable necessity for rapid drainage of roadbeds, which is usually effected by raising the ties and track above the general surface, and the propriety of ballasting the track in such a manner as to prevent water from running across it, between the ties. In a yard where there are two or more tracks, it follows, of necessity, that water may accumulate between the'tracks, and that whether provision should be made for its removal may depend upon the quantity of water likely to accumulate, and the facility with which it naturally escapes. Again, we know that during a thaw snow drifts form barriers, and that water finding its way into drains may freeze there from such cause, and this may happen to a drain that is amply large for ordi-| nary occasions. AVe cannot, however, say, as a legal! proposition, when a drain is necessary, or whether it is sufficient, or to what extent the railroad company should foresee the danger of water rising above the tracks and freezing, and take measures to prevent it. The rule is that the company must provide a reasonably safe track,— one which, measured by the standard of good railroading as actually conducted, can be said to be reasonably safe. If such standard would require the danger of ice freezing over the track to be foreseen, then it was the duty of the company to foresee it. If good railroading, as above interpreted, requires provision to be made to prevent such freezing, to avoid accident, then it would be negligence to omit such provision; and the same rule must furnish the test of the adequacy of provisions made. These are necessarily questions of fact, and cannot be determined by the court, unless the evidence is conclusive and uncontradicted, one way or the other, which is not the case here. Therefore we must say that whether the defendant in this case furnished a reasonably safe place was a question for the jury.

Was the Accident a Rish Incident to the Employment? We have so often held that one who is employed to work upon a railroad assumes the risks of obvious defects that it is hardly necessary to cite authorities upon the subject. The master has a right to expect the servant to be alert, and make use of his opportunities to learn the dangers of his employment; and, if ignorance of a danger is inexcusable, the employé cannot recover. And there are cases where the testimony is conclusive, and the court may say so. But the fact is not undisputed 'here. The intestate’s actual knowledge can neither be proved nor disproved conclusively, as he is dead. All that is left is to show the surroundings, and from them we cannot say that he knew, or ought to< have known, that there was a low place in the track at that point. He may have known it; we might perhaps say that he probably did know it; but it would still be for the jury to determine the fact.

Proximate Cause: It is argued that the plaintiff should not recover, because the freezing of the box was the proximate cause of the accident. No authorities are cited for such an application of the doctrine of proximate cause. The ice upon the track caused the accident, and that was caused by the thawing and freezing weather, the presence of water, the depression in the track, and the inadequate drainage under the existing conditions. All contributed to make the place unsafe; and, if the defendant can be fairly held to have been negligent in permitting this condition of the track, there may properly be a recovery. We cannot sustain this contention.

Negligence of the Section Men-: There is little doubt that it was within the employment of the section men to keep this track in a condition for travel. Doubtless they were expected to remove this ice from the track. In fact they did it later. It may be that it can be reasonably said that the drain was adequate for ordinary purposes, and that i't was proper for the company to rely upon its section men to remove ice, in such emergencies as this. But, if so, the section men were employed to maintain a reasonably safe track. It is urged that section men and brakemen are fellow-servants, and that for that reason there could be no recovery. The weight of authority is against this claim. The master owes the duty of furnishing a reasonably safe track, and this is a responsibility from which the company is not relieved by confiding the duty of construction or repairs to competent servants. Such are the master’s agents, and their negligence is his negligence. They may be fellow-servants of others engaged in mailing the repairs, but not of those for whose use and benefit they are made. Nor does the fact that the persons making repairs may be employed in fellow service with the injured person, in other work, relieve the master. The duty is one that the master cannot escape by delegating it. For authorities upon this branch of the case, sec cases cited in McKinney, Fel. Serv. § 29, and note; Benzing v. Steinway, 101 N.Y. 547; Herbert v. Railroad Co., 3 Dak. 38; Sanborn v. Trading Co., 70 Cal. 261; Capper v. Railway Co., 103 Ind. 305; Sort v. Railroad Co., 2 Dill. 259; Krueger v. Railway Co., 111 Ind. 51.

The duty to furnish a safe place to work is asserted in the cases of Swoboda v. Ward, 40 Mich. 423, and Smith v. Car Works, 60 Mich. 504. In Van Dusen v. Letellier, 78 Mich. 492, Mr. Justice Morse reiterates the doctrine, and asserts that one to whom the duty is delegated represents the master, and is not the fellow-servant of an operative using the place. This doctrine was again asserted in Brown v. Gilchrist, 80 Mich. 65, and, as applied to machinery, is laid down in Morton v. Railroad Co., 81 Mich. 423, by Mr. Justice Cahill, who asserts that delegation of the duty will not relieve the master from responsibility. The same is said in the case of Sadowski v. Car Co., 84 Mich. 106. Mr. Justice Champlin recognized the rule in Fox v. Iron Co., 89 Mich. 393. It was applied in Ashman v. Railroad Co., 90 Mich. 567, where it was held that the duty of blocking a frog could not be delegated, so as to relieve the company from responsibility. It should be stated, however, that this was a statutory duty. Mr. Justice Long followed these cases in his opinion in the case of Roux v. Lumber Co., 94 Mich. 615, and recognized it in Dewey v. Railway Co., 97 Mich. 332. It has been reaffirmed in the case of Beesley v. F. W. Wheeler & Co., 103 Mich. 196, and recognized in both opinions in the case of Schroeder v. Railroad Co., 103 Mich. 213.

It would seem that it should be considered as settled in this State that the master must furnish a reasonably safe place, and cannot avoid responsibility by delegating the duty. If this is so, What reason can there be for saying that the trackmen, to whom belongs the labor of beeping the track in repair and safe condition, a,re fellow-servants of the trainmen, who use it? The reason given is that our decisions hold that section men and trainmen are fellow-servants. An examination of the eases will show that in some, if not all, of ihem, the section men and trainmen were, as a matter of fact, engaged in a common sendee, and therefore were fellow-servants. Where the section men assist the trainmen in operating the road, as by throwing switches, coupling oars, etc., or the trainmen assist in repairing the road, by taking laborers upon a construction train, and all, in their respective capacities, engage in removing debris, or restoring derailed rolling stock to its place upon the rails, they are engaged in a common service, whatever their other general duties may be. Counsel cite us to two cases : Mich. Cent. R. Co. v. Austin, 40 Mich. 247; Schaible v. Railway Co., 97 Mich. 318. In the former a switchman was thrown from the foot-» hoard of a locomotive by a jerk caused by striking a worn rail. The court held that he had assumed the risk by reason of his employment, being familiar with the road. The court added: “Moreover, the whole fault, if there was any fault in the condition of this track, was due to the neglect, a.s he himself testifies, of the trackmen, who were engaged in the same common service with himself.” The other case was where a section hand was run over by a car shunted along the track, unattended. The court held him guilty of contributory negligence. This court said: “The court was not in error in holding the parties fellow-servants, under the rule laid down in Peterson v. Railway Co., 67 Mich. 109, and the cases there cited; but it was error to hold the acts of the trainmen negligent per se, and state to the jury that the company could be held liable to the plaintiff for the acts of his fellow-servants, even though those acts were negligent.” At the time of the accident the injured servant was at work clearing the track. In the Peterson case a car repairer was engaged under a car, in inspecting it. He was injured by reason of the negligence of the boss of his gang. This case cites the following: Mich. Cent. R. Co., v. Dolan, 32 Mich. 510, where an engineer was injured through neglect of his conductor. In Smith v. Potter, 46 Mich. 258, a brake-man was hurt through neglect of a train inspector. Quincy Mining Co. v. Kitts, 42 Mich. 37, was a case where the negligence of a mining captain caused injury to a man under him. Harrison v. Railroad Co., 79 Mich. 409, was similar in principle. In Greenwald v. Railroad Co., 49 Mich. 197, a brakeman was injured through the fault o-f an engineer.

Of all these cases, only two, viz., the Austin and Sehaible cases, can he said to militate against the rule mentioned. The latter did not involve the question of the master’s duty to furnish a safe place, for, if either of the employés involved in the transaction was the one to repair the track, it certainly was not the offender. Whether it can be said that they were engaged in common employment at tbe time is another question, which we need not discuss. In the Austin case, however, it would seem that the service was not common, and the duty of the trackmen was to keep the road in repair. The case was put on other grounds, however, which-were sufficient to dispose of it. In Loranger v. Railway Co., 104 Mich. 80, it was said that the brakeman and section men were fellow-servants; but in that ca,se it was stated that the roadbed was safe, but that, in using it, it was rendered temporarily unsafe, implying that the removal of ashes and cinders by section men was a part of the operation, rather than repair, of the road. The ease of Austin, then, is the foundation, and all of the foundation, upon which this exception ( for it is an exception, if defendant’s contention shall be upheld) to the general rule must rest. No good reason is suggested for holding that the servants who keep factories and other places in repair shall be governed by different rules than those who repair railroad tracks; and we think that this case wais not supposed to conflict with such rule, which has been so frequently announced, and perhaps it did not. We cannot say that it did without knowing the extent of the admission of the plaintiff, alluded to by the court, in that regal’d.

The remaining question is that of contributory negligence. We cannot take judicial notice that it is negligent for a person to sit between two piles of logs upon a car, when riding upon a siding, where he expected to get off to make a coupling before reaching another car. If we are to say that this was contributory negligence, it must be for the reason that the evidence conclusively shows it to have been such. Several witnesses testified to their opinions in the matter, which, as they were expert railroad men, they might properly do, and the opinions were quite uniform that it was unsafe. The witnesses who testified upon this subject were called on behalf of the plaintiff.

Robert Reed, a fellow brakeman, who saw tbe accident said:

“Tbe effect of tbe log car striking tbe box car was to drive the two tiers of logs together, and Balhoff was caught. He sat on the car between tbe two tiers of logs.”

Joseph Carse, conductor of the train, said:

“I would not consider it safe for Balhoff to sit down between the tiers of logs on the car, when backing in for the purpose of mailing tbe coupling with another car. I should regard it as an extremely dangerous place. * * * I would not consider it safe for him to take the position he did, when making up trains. The car is liable to jump the track any place. It is liable to run over something when you are switching.
“Q. Is it not a usual mode, in making up trains, to ride on the cars ?
“A. Sitting down? No, sir.
“Q. In either way, would any danger arise, except the car jumped the track, or ran into a car, as this did?
“A. If a log would roll off tbe tier ahead of him, it would be liable to catch his feet. I have seen logs roll off from oars standing still. It is not very customary. I have seen them roll off when the cars were moving slowly.”

W. J. Martin, division superintendent, testified:

“My experience makes me familiar with the method of handling different trains, including log trains. From my experience, I should say that it was not a safe place for a man to occupy, or a safe thing for a man to do, to sit down on the deck of a fiat car, between two tiers of logs loaded on a car, when that oar was being backed into a side track in midwinter. A car is liable to jump a track, if they should strike another car hard. The logs are liable to shove and come together, especially in the winter. If you strike the car hard, the logs will shove from one end to the other. That has been our experience, and there is no question about it. * * * There is no place on any oar that is absolutely safe. I should consider it reasonably safe for a man to stand on the end of a car loaded with logs, or more safe on top of the logs. Of course, if the logs broke away, you are liable to fall off, and to be let down in the logs.
“Q. Wouldn’t you consider a man safer at a distance of two feet from the ground than ten ?
“A. That depends upon circumstances. In this particular place, I would not.
“Q. You base this largely upon the fact that an accident happened?
“A. It is not a safe place for any man to ride, — between two tiers of logs.”

Donald McDonald, a brakeman, testified:

“Sometimes, in making a coupling of cars loaded with logs, if they strike awful hard, the logs will slide endwise. I had a little experience of logs sliding in that way. A short time ago, on the Hauptman Branch, I made a coupling, and the logs slid four or five inches. They were slippery logs, out of the lake. They slid endwise. In my judgment, I should not think it was a very safe place for Balhoff to be sitting down on the body of the oar, between the two tiers of logs, backing into this switch. Of course, it is according to how fast they were going.
“Q. In the ordinary experience of backing into a side track in that way, for the purpose of making a coupling to some other cars, was that a safe place for him to occupy, in your judgment as a railroad man?
“A. I should not think it would be very safe in there. * * *
“Q. Now, in the ordinary way of operating a train, in making it up, do you say that that was not a safe place for Mr. Balhoff to get?
“(Objected to by counsel for defendant, as leading, and the very tone of voice in which it is put is trying to coax an answer favorable to counsel.)
“Mr. Hull: I take an exception to that remark.
“(Objection overruled, to which ruling counsel for defendant excepted.)
“A. I don’t know as it is very unsafe or very safe. Of course, we all do it, I suppose, — jump on leisurely when a car comes along, and ride up to the other one, and jump off and couple it.
“Q. You spoke of its being unsafe by reason of the logs coming together with a sudden jerk?
“A. Yes, sir.
“Q. Or in case of accident. In the ordinary way of switching oars, would there be any liability of that kind of danger?
106 Michigan Reports. [Oct.
“(Objected to by counsel for defendant as incompetent, immaterial, and leading. Objection overruled, to which, ruling counsel for defendant excepted.)
“A. I should not think there would.”

This is all of the testimony upon the subject. There was an abundance of evidence that it was unsafe, but the testimony of the last witness named was such as to make it a question for the jury.

Complaint is made of the charge, viz.:

“Now, gentlemen, we will proceed to another branch of the case. What opportunity was there for the brakeman, Mr. Rallioff, in this case, to have discovered the condition of the track? You have heard the testimony with reference to the snow. If you find, gentlemen, that, by the exercise of diligence on his part, he himself should have discovered the condition of the premises at that time, — in other words, if his knowledge was such knowledge as the company had, or you might find ought to have had, — then it was one of the risks that he took upon himself, because, while it was not a risk, perhaps, that might have been originally embraced in his contract with the company — We will revert to the example of the mowing machine, which will illustrate what I mean. We will suppose the pole to have been broken, and that the employé knew that the pole was broken. If, under those circumstances, the employé took the machine, and went to mowing, he would take the risk of accident from its breaking upon himself, because he knows precisely just all the dangers, just as does the farmer whose machine it is. So I say to you, if Mr. Balhoff knew, or might have known from looking upon the ground at that time, of the existence of the danger, then, and under those circumstances, the company would not be liable, no matter what you may find upon the proposition with reference to which I have just spoken.”

We think this instruction not open to objection.

No error appearing, the judgment must be affirmed.

McGrath, C. J., Long and Montgomery, JJ., concurred with Hooker, J.

Grant, J.

I concur in the result readied by my Brother Hooker,but I cannot concur in his reasons therefor. The theory of the declaration is a defect in the original construction of the road, of which the defendant had knowledge, and the deceased had not. Upon this theory the case was tried, and submitted to the jury. The track upon which the accident happened was constructed in a basin, — of slight depth, it is true, but deep enough to permit the water to collect above the rail. It will not be seriously contended that such a construction is safe, in this latitude, — subject as it is, in winter, to sudden thaws and freezing. There is evidence that the attention of the defendant was called to this defect, and it attempted to remedy it by a sluiceway, which proved insufficient in a case of sudden thawing and freezing. Railroads must be constructed with reference to the elements in winter as well as in summer.

Counsel for plaintiff state the basis upon which they sought recovery in the following language:

“If the servant claims damages from the master for injuries received on account of defective premises, buildings, machinery, or appliances, he must allege and prove that the unfitness or defect was either known to the master, or was such that, with reasonable diligence and attention to business, he should have known of it; and, if defendant is liable in this case for the defect in its yard, it must be because it was defective when constructed, or became and remained so afterwards, under circumstances that called for knowledge on its part, arising either from the insufficient means taken to guard against danger, or the existence of the cause that produced the injury for such a length of time that it ought to have known of it.”

The closing instruction given by the court to the jury at defendant’s request is as follows:

“If the accident occurred by reason of a defect in the original plan or construction of the side track or yard, and if such side track and yard was originally constructed so as to be reasonably safe for the ordinary uses of a side track and yard, the plaintiff cannot recover.”

When the cause of an accident is an original defect in construction, for which the defendant is liable, or the failure to remedy a defect of which he had either actual or constructive notice, it is no defense to an action for resulting damages that it was the duty of a fellow-servant to look after the track and remove obstructions. The original defect in such a case is the proximate cause of the accident, not the neglect of the fellow-servant. In my judgment, therefore, the question of fellow-servant is not involved in the ease, and was properly excluded from the jury. The justice of this rule, as applied to the present case, appears from the fact that the section men were engaged in other work and duties upon the track over which they had charge, and had not had time to investigate this track and prevent the accident. A railroad company cannot thus shift the responsibility of its own knowledge of a defect upon its employés, in a case where it had given no speciñe instruction, nor informed them of conditions which the elements might produce. This is not the case of an obstruction suddenly placed upon the track, or of a sudden defect in the roadbed, without the fault of the defendant, and for which it is not liable unless it had had actual or constructive notice. For these reasons, I think the case was fairly and properly submitted to the jury. I cannot concur in what my brother has said upon the doctrine of fellow-servants, for reasons stated by me in Anderson v. Railroad Co., (December 24, 1895; 107 Mich.) 65 N. W. Rep. 588.