text:
    STUMPF v. STORZ.
    1. Taxation — Mortgages — Constitutional Law — Double Taxation.
    The taxation of a mortgage upon real estate, in addition to the tax imposed upon the land itself, is not in violation of the constitutional requirement of uniformity in taxation, even if, under the terms of the mortgage, the mortgagor assumes the payment of both; since the payment of the mortgage tax is not a burden imposed by the State, but grows out of a contract voluntarily entered into, which is subject to the restrictions imposed by the statute relating to usury.

    2. Same —Statutes —Constitutional Law — Exemptions — Deducting Debits erom Credits.
    The law permitting a creditor, in listing his personal property for taxation, to deduct the amount of any indebtedness owing by him is not in violation of the constitutional requirement of uniformity; nor is such deduction an exemption within the meaning of constitutional and statutory provisions as to exemptions from taxation.
    3. Constitutional Law — Statutes—Construction.
    The fact that the statute permitting the deduction of debits from credits, in listing personal property for taxation, has been in force during the entire history of the State, should not deter the court from determining its invalidity if convinced that such law was beyond the legislative power.
    4. Taxation — Uniformity—Unequal Results — Effect.
    Taxation is not invalid because of unequal results in individual instances, since, under such construction, taxation would become impossible and governments must fall back upon arbitrary exactions.
    Certiorari to Oakland; Smith, J.
    Submitted February 11, 1909.
    (Docket No. 162.)
    Decided April 6, 1909.
    Mandamus by Jacob Stumpf to compel Louis Storz, supervisor, and Henry N. Lavery and John Benjamin, members of the board of review of the township of Royal Oak, the Michigan Bankers’ Association, and others, to strike from the tax roll an assessment against certain personal property. There was an order denying the writ, and relator brings certiorari.
    Affirmed.

      Fred A. Baker, for relator.

      Hal. H. Smith, for respondent Michigan Bankers’ Association.

       Taxation of mortgage as double taxation, see note to Common Council of Detroit v. Rentz (Mich.), 16 L. R. A. 60.

   Montgomery, J.

This is a petition for a mandamus requiring the board of review of the township of Royal Oak to reconvene and strike from the assessment roll of the township for 1908 a personal property assessment against the relator of |9,000; that being the value placed by the board on certain mortgages upon real estate and land contracts held by the relator. The object of the! petition is to test the constitutional validity of the provisions of the general tax law relative to the taxation of real estate mortgages and other credits. The briefs of relator and respondents show that no effort has been spared to place before the court all the learning obtainable upon the subjects presented, and, if we omit to refer to and discuss all the authorities cited, it is not through any want of appreciation for their aid in the final solution of the questions, or because they have not had full attention by the court. To attempt to cite the authorities bearing upon each of the propositions contended for, and to discuss and distinguish the cases, would extend the opinion beyond reasonable limits. We shall content ourselves with stating the result of our investigations, and with referring to such cases as we think should be considered controlling.

The sections of the Constitution bearing upon the subject are sections 11 and 12 of article 14, which read as follows:

“ Sec. 11. The legislature shall provide an uniform rule of taxation, except on property paying specific taxes, and taxes shall be levied on such property as shall be prescribed by law.
“Sec. 12. All assessments hereafter authorized shall be on property at its cash value.”

It is strenuously insisted that the taxation of mortgages upon real estate, in addition to the taxation of the real estate itself at its full value,’ is double taxation, and, as such, unconstitutional. It is conceded that the practice has been to tax credits as personal property ever since the organization of the State government in 1838, and it must also be conceded that the decisions of this court have recognized the constitutionality and validity of these statutes. In the case of Attorney General v. Board of Sup’rs of Sanilac Co., 71 Mich. 16, Chief Justice Sherwood said:

“ Mortgages are nowhere excepted out of the taxable property. It was evidently the intention of the legislature, under our tax laws as they now are, to make personal property bear its just proportion of the burdens of taxation, and I find no constitutional objection to this being done. * * * I know of no reason why property in real estate mortgages cannot be assessed at its cash value as well as any other personal property. Such property is very largely dealt in by nearly all classes of business men, and the various kinds have a rated value according to the extent of the security and personal responsibility of the party whose obligation is secured, if any; and I know of no reason why the assessing officer may not as well ascertain that value as any other business man. * * * The claim that double taxation cannot be avoided under the act cannot be sustained. * * * In order to have double taxation, the same property must be taxed twice, when it should be taxed but once. The law of 1887 creates no such injustice. When an indebtedness is secured by mortgage on real estate, and the mortgage becomes property more valuable and desirable than the land itself, there is not, nor can be, any good reason why the mortgage should not be taxed to assist in bearing the public burden; and any course of reasoning which would exempt the property in the mortgage, and make the land bear the burden of taxation which should be shared by the holder of the mortgage, would not only be unequal and unjust, but would, I think, be getting about as near double taxation as can be reached without having it pure and simple.”

Justice Champlin, concurring in this view, said:

“I think it is competent for the legislature to assess and tax securities representing values. Whether it is the best plan to adopt, or whether it is expedient to do so, is not a judicial, but a political, question, resting solely with the legislature.”

The question was again before the court in City of Marquette v. Land Co., 132 Mich. 130, in which this'* same contention was made, that a tax on both the prop- j erty contracted to be sold and on the credit in question * was such a double taxation as to violate the constitutional provision requiring uniformity. That case was a case of a land contract, but the principle is the same as in the case of a mortgage security. It was said by Mr. Justice Carpenter: the mortgage is unconstitutional. The decision of this court upholding the constitutionality of such taxation (Attorney General v. Board of Supe'rs of Sanilac Co., 71 Mich. 16) is controlling and decisive of this question.”

“ It is to be noted that in this case the obligation to pay the taxes upon the property rests, not upon the vendor, but upon the vendees. Therefore the argument advanced in support of this contention is precisely the argument which has been advanced to prove that the taxation of credits secured by mortgage and of the land covered by

We are asked to reconsider these cases, although it may be said that they have the support of many decided cases in other jurisdictions.

But it is urged that in practice the mortgagor pays the tax both upon the real estate and upon the mortgage, and that, therefore, he is subjected to double taxation. The answer is that this may or may not be true, and that, whenever the mortgagor does pay the tax upon the mortgage, it is not because it is a burden imposed upon him by the State, but because of a contract that he has voluntarily entered into, and this contract is subject to restrictions imposed by the usury laws. See Green v. Grant, 134 Mich. 463. As bearing on the general question, see Paddell v. City of New York, 187 N. Y. 553, 311 U. S. 446.

It is next urged that the law permitting a creditor in listing his property for taxation to deduct the amount of any indebtedness owing by him is unconstitutional as being in violation of the constitutional requirement of uniformity; the claim being that the Constitution of Michigan does not make the net assets of persons or corporations the basis of taxation, but, on the contrary, provides that all general taxation must be on property according to its cash value, and it is urged with much force that the credits of which one is possessed constitute property, and that, this being so, it would be subject to taxation as property, and that any provision for deducting the indebtedness of the owner is in effect an exemption of so much of his property from taxation.

The case of Exchange Bank of Columbus v. Hines, 3 Ohio St. 1, is relied upon to sustain this contention. The majority opinion of the court in that case did sustain the contention, and that opinion has been followed by the supreme court of South Dakota in the case In re Assess- merit and Collection of Taxes, 4 S. Dak. 6. The constitution of Ohio of 1851 (article 12, § 2) provided that “laws shall be passed, taxing, by a uniform rale, ail moneys, credits,” etc., and it was in construing this constitutional provision that the rule in Exchange Bank of Columbus v. Hines was laid down. Soon after this decision, however, the legislature of Ohio enacted a statute which declared that the term ‘ ‘ credit ” meant the excess of the sum of all legal claims and demands over and above the sum of legal and bona fide debts owing by such person. In Hubbard v. Brush, 61 Ohio St. 252, the supreme court of Ohio said of this legislation that it had been acquiesced in for more than 40 years, and that Exchange Bank of Columbus v. Hines, in so far as it denied the right to deduct liabilities from claims and demands, has been ignored. The court said:

“The word ‘credits,’in the connection in which it is used in the constitution, is not made at all clear by a resort to the lexicographers. It is apparent, however, that if the framers of the constitution had intended to specifically tax book accounts, promissory notes, and the like, it would only have required the addition of a few words, not at all incompatible with the brevity required in such instruments, to manifest that intention. The ease with which it could have been done gives to the omission a signification entitled to some consideration. * * * The difficulties, however, attending a deduction of liabilities from claims and demands, have not proved formidable since the practice was authorized by the legislature, and the practice itself has received general approbation. For these considerations, not to specify others, we are of opinion that the legislative declaration is in accord with the constitution, and therefore hold that the corporation involved in this controversy rightfully in listing its property for taxation deducted its liabilities from its claims and demands.”

The result of this opinion was that the term “credits,” as used in the constitution, might be held to mean the net credits. The same ruling was made by the supreme court of Nebraska in County of Lancaster v. McDonald, 73 Neb. 453. In the case of Florer v. Sheridan, 137 Ind. 28 (23 L. R. A. 278), the conclusion was reached that the true value of the taxpayer’s credits was the balance due after deducting the debts. The case upon this point is well reasoned, and, we think, states the correct rule. See, also, State v. Moffett, 64 Minn. 292, and State v. Railway Co., 95 Minn. 43, and, for a general discussion, Gray on Limitations of Taxing Power, § 1395 et seq. Since the adoption of the Constitution, and, indeed, before, every tax law in the State has authorized the deduction of debits from credits in listing personal property for taxation, and, while the court has never been directly called upon to pass upon this question, the propriety of such legislation has been recognized in First Nat. Bank of St. Joseph v. Township of St. Joseph, 46 Mich. 526, and Beecher v. Common Council of Detroit, 110 Mich. 456.

It is urged that the fact that the practice of deducting debts from credits has so long continued should not deter the court from declaring the law unconstitutional if convinced that it is beyond the legislative power. This statement of the duty of the court is undoubtedly correct. See Pingree v. Auditor General, 120 Mich. 95 (44 L. R. A. 679). But the fact that such statute has remained upon the statute books for over 70 years, and that the practice has continued from the formation of the State to the present time, does call upon the court to move with the utmost caution in asserting its invalidity. We are not convinced that the reasoning of the courts in the cases cited above from other jurisdictions is unsound, and are disposed to follow them. As to the further contentions of relator’s counsel, the language of Judge Cooley (1 Cooley on Taxation [3d Ed.], p. 389), quoted with approval by this court in Common Council of the City of Detroit v. Board of Assessors, 91 Mich. 78 (16 L. R. A. 59), is peculiarly appropriate:

“Now, whether there is injustice in the taxation in every instance in which it can be shown that an individual who has been directly taxed his due proportion is also compelled indirectly to contribute, is a question we have no occasion to discuss. It is sufficient for our purposes to show that the decisions are nearly, if not quite, unanimous in holding that taxation is not invalid because of any such unequal results. It cannot be too distinctly borne in mind that any possible system of tax legislation must inevitably produce unequal and unjust results in individual instances; and, if inequality in result must defeat the general law, then taxation becomes impossible, and governments must fall back upon arbitrary exac tions. ”

The order of the circuit court dismissing the petition is affirmed, with costs.

Grant, Hooker, Ostrander, Moore, McAlvay, and Brooke, JJ., concurred. Blair, O. J., did not sit


source: Caselaw Access Project

author: Ostrander, J.

license: Public Domain

text:
    PEOPLE v. PETERSON.
    Intoxicating Liquors — Local Option Law — Construction.
    The statute (Act No. 207, Pub. Acts 1889), the object of which is to prohibit the manufacture of, and all traffic in, intoxicating liquors, cannot be reasonably construed so as to apply to the individual use, or the keeping for use, of liquors by citizens; and where respondent, in his own home, upon the occasion of a surprise party in honor of his daughter’s birthday anniversary, served his guests with beer, not purchased for the occasion, as a mere act of hospitality, with no intent to violate or evade the law, he was not guilty of an offense under said statute.
    Exceptions before judgment from Wexford; Chittenden, J.
    Submitted February 15, 1909.
    (Docket No. 155.)
    Decided April 6, 1909.

      William Peterson was convicted of violating the liquor law.
    Reversed, and respondent discharged.

      Gaffney & Miltner, for appellant.

      William H. Yearnd, Prosecuting Attorney, for the people.
   Ostrander, J.

The single question presented is whether the giving of liquor by a host to his adult guests, by way of hospitality in his own home, violates the provisions of Act No. 207, Pub. Acts 1889, known as the “local option law.” It is a misdemeanor, punishable by fine or by imprisonment, for any person to, himself, or by his clerk, agent or employe, directly or indirectly, manufacture, sell, keep for sale, give away, or furnish any vinous, malt, brewed, etc., liquors, or to keep a saloon or any other place where such liquors are manufactured, sold, stored for sale, given away, or furnished, with an exception relating only to druggists and registered pharmacists. The object of the act is to prohibit the manufacture of, and all traffic in, liquors. It cannot be reasonably construed so as to apply to the individual use, or the keeping for use, of liquors by citizens. Whether an individual might, even in his own house, dispense liquors purchased and kept for his own use, in such manner as to make his conduct obnoxious to the law, is a question not presented. In this case respondent served 11 pint bottles of beer to a large number of guests, who visited his home upon the occasion of the birthday anniversary of his daughter. It was a surprise party. The beer was not purchased for the occasion, and it is not claimed there was any intention to violate or to evade the law. The jury were told that the law had been violated, and that they should find respondent guilty.

The conviction is set aside, and the respondent discharged.

Montgomery, Moore, McAlvay, and Brooke, JJ., concurred.


author: Hooker, J.

text:
    PEOPLE v. GORDON.
    1. Intoxicating Liquors — Keeping Saloons Open on Sunday— What Constitutes.
    Surrounding a bar in a saloon with a picket fence is not a sufficient compliance with the statute (sections 5295, 2 Comp. Laws), requiring saloons to be kept closed on the first day of the week.
    2. Same — Defense—Intent.
    It is no defense that respondents relied upon the advice or permission of the police officers in opening their saloon with the bar so guarded; since such officers have no authority to advise or consent to violations of law, and the intent with which respondents kept their saloon open on Sunday is immaterial.
    3. Same — Instructions.
    An instruction to the jury that “under the proofs in this case, and the facts and circumstances that have been shown here on the witness stand, it is your duty to find the defendants guilty of the offense charged in the information, and you will be permitted to retire * * * for the consideration of your verdict,” was justified under the uncontradicted facts, and did not amount to a coercion of the jury.
    Exceptions before judgment from Saginaw; Gage (William G.), J.
    Submitted February 15, 1909.
    (Docket No. 156.)
    Decided April 6, 1909.
    John Gordon and Christian Trier were convicted of violating the liquor law.
    -Affirmed.
    Beach, O’Keefe & JRockwith, for appellants..

      Miles J. Purcell, Prosecuting Attorney, for the people.
   Hooker, J.

These defendants were convicted of a violation of section 5395, 2 Comp. Laws, which requires. saloon keepers to keep their saloons closed on the first day, of the week. The saloon in question consisted of two apartments, with arches between them. These apart" ments were both in one room; the partition separating them being eight or nine feet high. On one side of the front entrance was a desk, and next came a cigar case, then a movable screen, extending from the front corner of the cigar case back to the wall. The bar was next, and did not extend so far into the room as the desk and cigar case. It extended back nearly to the partition. On Saturday nights it was the custom of the defendants to surround the bar by a picket fence, six feet high, made in sections, and fastened by screws to the bar and wall. They claim to have made this fence at the suggestion of the captain of the police force of Saginaw, who told them that such device would be a sufficient compliance with the law, and would enable them to carry on their restau-' rant in the rear apartment Sundays. Subsequently they were arrested on the complaint of Walsh for violation of the statute.

Counsel for defendants say that there are three questions in the case:

(1) With the fence in place was not the saloon closed in compliance with law ?
(2) Can defendants be convicted in view of the sanction of the method adopted and their own good faith ?
(3) Was the charge of the court erroneous P

It was a violation of the law to keep this place open on Sunday notwithstanding the fact that the bar was surrounded by a temporary fence. People v. Waldvogel, 49 Mich. 337; People v. Cummerford, 58 Mich. 328; People v. Schottey, 116 Mich. 1; People v. Higgins, 56 Mich. 159.; People v. Tolman, 148 Mich. 305; People v. Boyd, 151 Mich. 577.

It was no defense if the defendant in good faith relied upon the advice or permission of a police officer to keep the doors open. Officers have no authority to advise or consent to violations of law, and the intent with which a saloon keeper opens his saloon on Sunday is immaterial under this law. People v. Richmond, 59 Mich. 573; People v. Roby, 52 Mich. 577; People v. Blake, 52 Mich. 566; People v. Talbot, 120 Mich. 486; People v. Kriesel, 136 Mich. 85 (4 Am. & Eng. Ann. Cas. 5); People v. Lundell, 136 Mich. 304; People v. Possing, 137 Mich. 303; People v. Jewell, 138 Mich. 620; Bailey v. Briggs, 143 Mich. 303. There is no plausible reason for treating this case as exceptional, in our judgment. It was immaterial whether similar offenses were committed in other saloons.

The court instructed the jury as follows:

“I think, under the decisions of the Supreme Court, that the court could direct a verdict, and tell you, gentlemen, to render a verdict of guilty in this case, but the court will not do that. In order to avoid any question about that matter, the court instructs you that under the proofs in this case and the facts and circumstances that have been shown here on the witness stand, that it is your duty to find the defendants guilty of the offense charged in the information, and you will be permitted to retire, if you desire to, for the consideration of your verdict.”

The jury did retire and after a time returned with a verdict. We are of the opinion that the uncontradicted facts justified the instruction, and that there was no coercion of the jury.

The conviction is affirmed, and the cause remanded for judgment.

Ostrander, Moore, MoAlvat, and Brooke, JJ., concurred.


text:
    McINTYRE v. McINTYRE’S ESTATE.
    1. Wills — Deed to Operate as Will — Execution—Intent.
    To constitute a will, the instrument must be one which is not by its terms sufficient to convey a present interest; such interest negativing an intent to reserve the right of revocation.

      2. Same.
    A deed, which on its face conveys a present interest in land, although it withholds for a specified time the right of possession, is not a testamentary disposition and cannot be admitted to probate as a will; and this is true although the deed was not delivered.
    Error to Lapeer; Smith, J.
    Submitted February 19, 1909.
    (Docket No. 21.)
    Decided April 6, 1909.
    Marion M. McIntyre presented a deed for probate as the last will and testament of John B. McIntyre, deceased. The petition was denied in the probate court, and proponent appealed to the circuit court. There was judgment for contestant on a verdict directed by the court, and proponent brings error.
    Affirmed.

      B. F. Reed, for proponent.

      Geer, Williams & Halpin, for contestant.
   Hooker, J.

An ordinary warranty deed containing the following unusual paragraph was offered for probate as a-will:

“It is understood that this deed is made for the purpose of creating a future estate, preserving to the grantee [grantor] hereof and his wife full use and occupancy thereof until the death of the survivor of them, to the end that the use and occupation, rental and enjoyment thereof shall be and belong to them and the survivor of them during life, and the full title and enjoyment of the above-described land shall only become operative upon the death of the survivor of the grantors hereof, and at that time, and not before, the said grantee shall enjoy the full title and control hereof.”

It was signed by John B. McIntyre and Elizabeth, his wife, and upon its face appeared to be properly executed. At the time of its execution and acknowledgment, it was left with the scrivener, and was delivered to the grantee named in it after the death of John B. McIntyre, but while Elizabeth McIntyre was living. She has since died. Probate of this instrument was denied by the probate judge. Upon appeal the circuit judge directed a verdict for the contestant, and the proponent has appealed.

The errors alleged are that the circuit judge erred in directing a verdict for contestant and in not directing a verdict for the proponent. Testimony was introduced, showing the circumstances under which the writing was executed, and the directions regarding its custody and delivery. The grantor caused this deed to be made, and directed the scrivener to deliver it when the grantee should execute a prescribed mortgage upon the premises to the grantor. See McIntyre v. McIntyre, 147 Mich. 365, where this deed was held ineffective to convey title for want of delivery. The inference from that opinion is that all considered that it did convey title to the property if delivered. This proceeding was instituted after the former decision.

It seems to be conceded that to constitute a will the instrument must be one which is not by its terms sufficient to convey a present interest, because, if it does, it negatives the design to reserve the right of revocation. Such is clearly the rule laid down in Clay v. Layton, 134 Mich. 337, and Hitchcock v. Simpkins, 99 Mich. 198. Two provisions of the deed were relied on to sustain proponent’s contention that the terms of the deed were not sufficient to create a vested interest in a grantee: (a) “It is understood that this deed is made for the purpose of creating a future estate;” (b) “and the full title and enjoyment * * * shall only become operative upon the death of the survivor of the grantors hereof, and at that time, and not before, the said grantee shall enjoy the full title and control hereof.” Our statute (section 8792, 8 Comp. Laws) defines “a future estate” as “an estate limited to commence in possession at a future day,” etc., and by section 8795 they are said to be either vested or contingent. There is no contingency mentioned in this deed. The grantee’s right to possession was inevitable on the happening of events which were inevitable. He had, therefore, a vested interest.

It is contended that this conclusion is inconsistent with the latter provision. That provision undertook to reserve to the grantors the use and occupancy only for their lives. It did not provide that no present title should pass, but only that “full” title and “control” should not be “enjoyed until the death of the survivor of the grantors.” In short, it is clear that the possession only was withheld. The cases cited by counsel involved instruments not open to such a construction.

The judgment is affirmed, with costs against proponent.

Montgomery, Ostrander, Brooke, and McAlvay, JJ., concurred.


author: Brooke, J.

text:
    SCHMIDT v. GAUKLER.
    1. Land Contracts — Foreclosure—Defenses—Assignments.
    On an appeal by the assignee of a land contract from a decree of foreclosure, allegations of fraud, duress, and usury set up in the cross-bill of defendant assignor, even if proven, cannot be taken advantage of by it; claims of such nature being available only to the party injured and are not assignable.
    2. Same — Foreclosure—Pleadings and Proof — Variance.
    Where, in such bill, complainant claimed entirely under the terms of the original contract, and defendant assignor in his cross-bill set out the terms of certain supplemental agree- ' ments, and complainant’s answer to said cross-bill gave his version of their legal effect, there is not such a variance between the pleadings and proofs as to preclude a consideration of the evidence bearing on all the contracts.
    3. Same — Forfeiture—Waiver.
    Leniency on the part of creditors toward debtors is rather tobe encouraged than punished; and, where complainant by supplemental agreements extended the time of payments under the original contract, he did not waive his right to affirmative relief under the original contract, especially since the supplemental agreements expressly provided against such waiver.
    4. Same — Foreclosure—Decree—Modification.
    Where, on such bill, a trust company, acting as trustee under first and second mortgages, was made a party defendant as a subsequent incumbrancer, it appearing, on affirmance of a decree for complainant, that such trustee might have a lien under the first mortgage subsequent to the lien of complainant and prior to that of the second mortgage, and that said company had resigned as trustee under the second mortgage, held, that as the rights of the bondholders under the second mortgage were not represented in the court below as against those under the first mortgage, the decree should be so modified as to require any surplus arising from complainant’s foreclosure sale to be paid into court, there to abide a determination of the rights of the respective classes of bondholders.

      Appeal from Wayne; Murphy, J.
    Submitted April 12, 1909.
    (Docket No. 32.)
    Decided April 16, 1909.
    Bill by Carl E. Schmidt against Arthur H. Gaukler, the Electric City Amusement Company, and the Union Trust Company, trustee, for the foreclosure of a land contract. From a decree for complainant, defendant Electric City Amusement Company appeals.
    Modified and affirmed.

      Keena, Lightner & Oxtoby, for complainant.
    Russel, Campbell, Bulkley & Ledyard, for defendant Union Trust Company.

      George W.Radford, for defendant Electric City Amusement Company.
   Brooke, J.

On October 26, 1905, the Electric Park Amusement Company, a Delaware corporation, then owning and operating an amusement enterprise at the intersection of Jefferson avenue and Belle Isle' bridge approach in the city of Detroit, located upon property on said corner having a frontage on Jefferson avenue of 125 feet, executed a mortgage to the Union Trust Company as trustee to secure payment of a bond issue of 180,000. This mortgage covered not only all the then existing property of the company, but also by its terms “all other property and assets, real and personal, of every name and nature, which said amusement company * * * may hereafter acquire.” Upon April 30, 1906, Arthur H. Gaukler, president and general manager of said company, in his individual capacity, entered into a contract with Carl E. Schmidt for the purchase of the parcel immediately adjoining the premises already occupied, and having an additional frontage of 175 feet on Jefferson avenue. This contract fixed the purchase price at 156,875, $5,000 of which was paid at or prior to the time of its execution. This contract remained in Mr. Gaukler’s individual name, although he was acting for and in behalf of the company in entering into it. During the year 1906 improvements consisting of various appliances for the amusement of the public were erected upon the Schmidt property to the value of about $30,000. Gaukler defaulted in the payments due upon this contract. He failed to pay the city taxes for the year 1906, and likewise failed to make a $5,000 payment upon the principal due September 10, 1906. On December 1, 1906, complainant began suit in the Wayne circuit court to foreclose said contract. In the meantime contractors and materialmen who had erected the buildings on the Schmidt property had filed liens covering their claims, not having been paid therefor either by Gaukler or by the Electric Park Amusement Company, and they were made parties defendants in the Schmidt foreclosure suit. That case was at issue in January, 1907. In the meantime a further installment of $15,635 had become due January 3, 1907, and had not been paid. Under these circumstances, Gaukler, who was the principal stockholder and moving spirit in the Electric Park Amusement Company, undertook to reorganize the whole enterprise, and to that end urged complainant Schmidt to drop his foreclosure suit, resell to him the property at the original purchase price, $56,875, with different terms as to payment, Gaukler to give a satisfactory bond covering the obligation. Gaukler represented to Schmidt that he would reorganize the company and would issue $300,000 worth of bonds, and would secure the consent of the lienor claimants to accept bonds for their liens and discharge the same. He urged Schmidt to accept bonds in payment for his land, but this Schmidt declined to do. Eventually, however, Schmidt did agree to execute a new contract, which was done on the 35th of March, 1907, to Gaukler, which was by Gaukler with Schmidt’s consent immediately assigned to the Electric City Amusement Company. Before Schmidt would agree to the execution of the new contract, he insisted that a second or supplemental agreement should be entered into, by the terms of which Gaukler and the Electric City Amusement Company (the new company) to whom he was to assign the new contract should agree to pay to Schmidt the interest due and unpaid upon the first contract, the taxes for 1906, and a $200 attorney fee, amounting in all to $3,070.30. Gaukler and the appellant company agreed to these terms of Schmidt, and on the 25th of March, 1907, the same day upon which the land contract was dated, executed such supplemental agreement. The second agreement provided that the gate receipts should be subject to the payment of the $3,070.30 as well as to the payment of the first $10,000 due under the land contract' itself. On the following day, March 26, 1907, a further agreement was entered into, reciting that:

“Whereas, it was intended by the parties thereto that the payments due and payable on August 1, 1907, and August 1, 1908, and secured in said contract (the supplemental contract) were to and should have included therewith, and in addition thereto, interest upon such sums remaining due and unpaid upon said contract, at the rate of six per cent, per annum; and whereas, said amounts of interest were not included in said contract, and it is the intention of the parties that such interest items shall be included in such contract: Now, therefore, it is agreed by and between the parties hereto that the paragraphs heretofore mentioned and described shall be extended to secure the party of the second part, the payment of the interest due to him upon the amounts remaining unpaid upon said contract, computed from the date hereof up to the first day of August of each year, to wit, 1907 and 1908.”

Prior to the execution of these three contracts, the defendant, the Electric City Amusement Company, had been duly organized, and the Electric Park Amusement Company had deeded to it all its property, real and personal, and on April 1, 1907, had executed a mortgage to the Union Trust Company, trustee, securing an issue of $300,000 covering the property described in the land contract between Gaukler and Schmidt, and also the property described in the mortgage of the Electric Park Amusement Company to the Union Trust Company, dated October 26, 1905. It was the purpose of Gaukler to appropriate $80,000 of this bond issue to the extinguishment of the original bond issue; to use $52,500 thereof to extinguish the Schmidt contract; to use $88,000 thereof to retire a mortgage of Mrs. Josephine Gaukler; and to use $68,000 thereof to specified lien claimants. The holders of the bonds under the first mortgages to the Union Trust Company apparently never exchanged them for bonds of the new issue. The lien claimants did accept bonds for their liens, and the same were discharged.

During the summer of 1907 much trouble was experienced by Schmidt in securing payments under the second or supplementary contract out of the gate receipts. This contract provided that he was to receive the admission price of the first 130,703 persons entering the park, which would have paid the $3,070.30 back interest and taxes, and the first $10,000 payment under the contract. It very soon became apparent, however, that, if Schmidt insisted upon this contract being carried out to the letter, the concern could not operate. The expectation of Gaukler that, after the reorganization, he would be able to sell the new bonds, was not realized. So, in order to keep the place open, he made frequent appeals to Schmidt or his attorney, Oxtoby, for modifications of the supplemental contract which would permit him to retain sufficient money to operate the plant. These concessions were from time to time made. In the summer of 1907, however, a bill was filed by Schmidt for the purpose of securing the appointment of a receiver to take charge of the gate receipts under the supplemental contract. Some payments having been made shortly after the filing of the bill, it was not pressed, and was finally discontinued by stipulation of the parties in interest. Taken altogether, the payments made during the summer of 1907 were much smaller than those provided for in the contracts, so that on September 19, 1907, the complainant filed his bill for the foreclosure of the land contract of March 25, 1907. The bill of complaint set out said contract in full and referred to the supplemental agreement, but did not set it out. Defendant Gaukler answered, and in a cross-bill set out the supplemental agreements, and averred that the supplemental agreements were obtained under duress and entered into by him without knowledge of his legal rights under the circumstances; also that they were usurious and void as to the excess thereof over and above the amount of the original purchase price remaining unpaid according to the first contract of April 80, 1906. The defendant the Electric City Amusement Company answered, denying the equities of the bill, but filed no cross-bill. The defendant the Union Trust Company filed its answer, simply denying the right of the complainant to the relief sought. The complainant filed an answer to the cross-bill of Gaukler, in which it set out its alleged rights under the supplemental contracts.

After the hearing in the court below and the filing of the opinion, a decree was proposed on behalf of the complainant. Amendments were offered by the Union Trust Company which were incorporated, and amendments of defendants Gaukler and the Electric City Amusement Company were likewise offered and appear to have been incorporated in the decree. The only party defendant appealing is the Electric City Amusement Company.

The allegation of Gaukler against the complainant of fraud, duress, and usury, even if proven, could not be taken advantage of by this appellant. Claims of this nature can only be set up by the party injured. Miller v. Lumber Co., 98 Mich. 163. Such a claim is not assignable. Smith v. Thompson, 94 Mich. 381. But a careful examination of the record convinces us that the claims set up are wholly without foundation in fact. So far from having imposed upon the defendant Gaukler, we are of the opinion that complainant Schmidt acted wholly within his legal rights at the time the resale of the property was effected in the spring of 1907. His foreclosure suit under the first contract was then at issue, and a decree for sale could have been obtained by him in the immediate future. He apparently became convinced that, to follow this course, would imperil the entire project, and, rather than do this, at Gaukler’s most earnest insistence he reluctantly accepted the terms proposed in the main by Gaukler himself.

The principal contention of the appellant appears from his brief to be that because the complainant in his original bill set out the land contract only and failed to set out the supplemental agreements, whereas upon the trial proof was made of all three contracts, there is a fatal variance between the pleading and the proof. It seems to us that the appellant entirely overlooks the effect of all the pleadings in the case. It is true complainant claims no rights under the supplemental contracts, and relies solely for his relief upon the original land contract. But it must be borne in mind that defendant Gaukler sets out the supplemental agreements in substance in his cross-bill and complainant in his answer thereto gives his version of their legal effect. Taking the complainant’s original bill and his answer to the cross-bill together, the pleadings are not open to the objection raised by defendant’s counsel, and all the citations to which counsel have referred the court are without application.

The next claim of appellant is that, because of the provisions of the supplemental agreements and complainant’s action thereunder, he has waived his right to affirmative relief under the principal contract now under consideration ; further, that his proceedings under the supplemental contract constitute an election of remedies by him; and that he is therefore now estopped from insisting upon the terms of the original contract. It is further claimed by the appellant, as we understand his claim, that if the complainant had insisted upon the strict performance of the supplemental contracts, and had taken the avails of the first 130,703 tickets sold, there would have been no default at the time he filed his bill of complaint, and he urges that, because he did not do this, he is now estopped from prosecuting his foreclosure under the original contract. It seems hardly necessary to discuss such a proposition. Leniency on the part of creditors toward debtors is rather to be encouraged than punished. His forbearance towards his debtors imposed no new obligations upon them, and, indeed, afforded them, according to their reiterated statements, the only possible means of keeping the enterprise from dissolution. See Jones v. Bowling, 117 Mich. 288.

As to appellant’s claim that complainant is bound by election, we have only to note section 4 of the supplemental agreement, which is as follows:

“Nothing in this instrument contained shall be construed as in any way a waiver of any of the contents of the contract, Exhibit A hereto attached (the original contract) ; this agreement being executed merely as additional security to said Carl E. Schmidt, in addition to the lien which he retains upon the said land and the rights of foreclosure, specified in Exhibit A, in ease of default in the terms thereof.”

As to the appellant, therefore, the decree of the court below should be affirmed.

There is another question, however, which demands attention. As before noted, the Union Trust Company as trustee under the Electric City Amusement Company was by the complainant made a party defendant as a subsequent incumbrancer. Upon the trial of the case, as such trustee, the Union Trust Company was represented. It appears in the testimony that, as trustee under the original mortgage for 180,000 made by the Electric Park Amusement Company and which covered after-acquired property, it might have a claim to a lien subsequent to the complainant’s upon any surplus for which the land might be sold above the complainant’s claim prior to its lien as trustee under the second mortgage. The learned circuit judge took the view that it was entitled to such relief, and permitted it to amend its answer setting up such claim, and the case proceeded upon the assumption that the pleadings were so amended, and section 5 of the decree below established said claim. Shortly after the entry of said decree, which was on April 30, 1908, the Union Trust Company resigned as trustee for the bondholders under the second mortgage (the $300,000 mortgage). The Detroit Trust Company later was appointed trustee and by an order of this court dated April 12,1909, was duly impleaded in said cause. Inasmuch as the rights of the bondholders under the second mortgage were not presented in the court below as against the rights of the bondholders under the first mortgage, we are of opinion that the decree of the court below should be modified so as to provide that all moneys received upon the sale of the property in excess of complainant’s claim shall be paid into court, there to abide until a determination by the court, upon proof to be taken, of the respective rights of the bondholders under the first and second mortgages to the same. In all other respects the decree of the court below is affirmed.

The complainant will recover costs against appellant.

Blair, C. J., and Grant, Montgomery, and McAlyay, JJ., concurred.


author:
      Montgomery, J.
      Hooker, J. Grant, J.

text:
    BECK v. ANN ARBOR RAILROAD CO.
    1. Railroads — Personal Injuries — Negligence—Contributory Negligence — Question for Jury.
    Plaintiff, in attempting to cross the tracks of defendant’s road, stopped his team within a few feet of the tracks and looked and listened. His view was obstructed by box cars on a side track close to the crossing, and, not hearing an approaching train, drove upon the track and was injured. The train was running at a rate of speed faster than was permitted by ordinance. Held, that plaintiff was not, as a matter of law, guilty of contributory negligence, and that the question was properly submitted to the jury. Grant, J., dissenting.
    2. Appeal and Error — Exclusion of Testimony —Estoppel to Assert Error.
    Where, on the trial, counsel offered certain testimony, the admissibility of which was questioned by the court, and it was withdrawn, counsel is estopped to predicate error upon its rejection.
    3. Trial — Argument of Counsel — Harmless Error.
    • Where, on the argument to the jury, plaintiff’s counsel said: “You will believe what this witness Mortenson said if all the railroad men in Christendom should swear the other way,” such statement, while extravagant and disrespectful to defendant’s witnesses, will not be presumed to have misled the jury, and does not justify a reversal of the judgment. Grant, •J., dissenting.
    Error to Washtenaw; Kinne, J.
    Submitted October 11, 1907.
    (Docket No. 85.) (Docket No. 2.)
    Reargued October 6, 7, 1908.
    Decided April 24, 1909.
    Case by George A. Beck against the Ann Arbor Railroad Company for personal injuries. There was judgment for plaintiff, and defendant brings error.
    Affirmed.

      T. W. Whitney, for appellant.

      A. J. Sawyer & Son, for appellee.
   Montgomery, J.

Three questions are presented in this case which deserve consideration: First, whether the plaintiff was guilty of contributory negligence, as a matter of law; second, whether there was error in excluding the testimony of Mr. F. E. Jones as to measurements which he made after the accident; and, third, whether the argument of plaintiff’s counsel was so improper as to justify a reversal of the case.

It is unquestioned that there is abundant evidence to show that the plaintiff, when he approached the crossing in question, did stop, look, and listen before attempting to cross. It is the contention of defendant’s counsel that the testimony conclusively shows that at the point at which he stopped his view was so obstructed by the cars of the defendant, situated upon the side track between him and the track upon which the approaching train was moving, as to render it impossible to see, and that his observation was therefore futile; and it is claimed that he should have made another and later observation before attempting to cross. The distance from the fence on the west side of Hiscock street to the west rail of the side track is 18 feet; from the west rail of the side track to the west rail of the main track, is 15 feet. The distance from the fence to the west rail of the main track is therefore 33 feet. In Summit street, the street upon which plaintiff was driving when attempting to cross the defendant’s track, was a plank crossing, 12, 14, or 16 feet in width, and about the center of the street, and there is testimony on behalf of the plaintiff tending to show that a train of cars extended from this crossing westerly for a considerable distance. Plaintiff came into Summit street from Hiscock street, turning a sharp corner. The testimony as to the location of the northeasterly end of these cars is conflicting. The testimony on the part of the plaintiff would tend to show that they were very close to this plank crossing; one witness testifying that in passing over this crossing and walking on a plank he reached out his hand and rested it upon the car. The plaintiff testified as follows :

“I saw a string of cars there, did not hear the engine. I drove the horses up there until I got to the north end of the string of ears on a walk.
“Q. Did you stop anywhere for the purpose of ascer- • taining whether there were any cars coming — any train ?
“A. When I got to where the front feet of the horses would have been on Summit street I saw the condition of the cars, and right across from where I make the turn, there is a flush tank or hole, and there was ice around it, and I saw the condition I had to meet on account of the cars. I had to make an extra turn. I looked both ways, and saw something on the Michigan Central. I turned this corner. I had to cramp the box to get over this plank, It is not over 20 feet. I had to cramp the box to keep away from the flush tank, and get the horses straight across over this plank. The horses were just heading onto Summit street when I stopped them. Before I started to turn when I stopped there, I looked down south and north over those cars as far as I could, both ways. I thought I saw the Central cars north. I don’t know as I did. I supposed I saw smoke over in that direction, and thought it was from the cars. I did not see anything south, and did not hear a whistle. I did not hear them ring any bell or make any sound until they struck me. * * * When I turned around the end of the car and straightened out onto Summit street, my horses first struck the plank crossing, where the end of the cars were. The car was on the plank it seems to me. This plank would be 12 or 14 or 16 feet, or something of that kind.”

The construction placed upon this testimony by defendant’s counsel is that the stop was made at a time when the plaintiff’s horses reached the boundary line of Summit street as laid out. A construction quite as reasonable is that it was when the horses were upon the traveled portion of Summit street that they were stopped. The plaintiff says it was when the horses were just heading onto Summit street when he stopped them, but he also says that he had driven up to the north end of the string of cars on a walk. Mr. Begrim, a witness for the plaintiff, was on Summit street across the track from plaintiff. It is manifest that his view was obstructed until plaintiff had passed the line of the obstructing cars. He testified:

“ I just happened to see Mr. Beck come around there with the team and stop there.”

On cross-examination he testified:

“ The first I saw of Mr. Beck, he came right ahead and stopped his team. Then all at once he came up to the crossing, and no more than got onto the side track when I says, ‘There he goes,’ and he went up into the air. * * * I saw him just the other side of the track. He was just coming around the corner probably 25 or 30 feet from the track; I am sure I saw him 35 or 30 feet from the crossing, I judge from the main track.”

If the testimony of Mr. Begrim is to be accepted, the plaintiff stopped his team after he came within the range of his vision, and, if plaintiff’s testimony is accepted, he then made an observation and failed to discover the approaching train, drove onto the track, and received the injuries complained of. I think it should not be said, as a matter of law, that, under these circumstances, he was guilty of contributory negligence.

It is suggested that the case is ruled by Shufelt v. Railroad Co., 96 Mich. 337. That case is clearly distinguishable from the present. In that case the plaintiff did not stop her team to listen. She looked when upon a rise of ground 90 to 100 feet from the crossing, and saw no train approaching. She did not stop, and the horses stepped upon the track just as the train struck them. It was said, according to the evidence of her own witnesses, that when she came within 30 feet of the track she could have seen the train had she looked, and stress was laid upon the fact that the speed of the train constituted no negligence. It was said in the prevailing opinion:

“Passengers upon a highway must be charged with knowledge of the lawful rate of speed at which trains may run, and must govern themselves accordingly. Trains are not limited in the rate of speed they may run in the country, and across the public highways, where the travel is limited. The commerce of the country demands rapid transit.”

In the present case, however, it is conceded that the defendant was exceeding the speed limit permitted by the ordinances of the city, and was running its train at the rate of 30 or 40 miles an hour, and, as the jury found, without giving any warning of its approach, whereas the ordinance limits the speed to 6 miles an hour. If passengers are bound to take notice of the lawful rate of speed at which trains may cross a public highway, they are at least authorized to take notice of limits fixed upon the rate of speed within a city, and this certainly would bear upon the question of the point at which the observation of one approaching a crossing may be made, and it has been so held. Moran v. Railway, 124 Mich. 582. See, also, Ryan v. Railway Co., 123 Mich. 597; Haines v. Railway Co., 129 Mich. 475; Deneen v. Railway Co., 150 Mich. 235; Detroit, etc., R. Co. v. Van Steinburg, 17 Mich. 99, 118, 119. We think there was sufficient to justify an inference by the jury that the plaintiff was not guilty of contributory negligence. See Wilbur v. Railroad Co., 145 Mich. 344; Corbs v. Railroad Co., 144 Mich. 73.

As to the second question, namely, whether the court erred in excluding the testimony of F. E. Jones, the record shows that Mr. Jones is a practicing lawyer, and, before he made the measurements at the scene of this accident, he had been retained by the plaintiff’s brother, who was the owner of the team of horses killed at the time. When the witness was interrogated as to the measurements made, the court said:

“I don’t think you are entitled to that, do you?”

Mr. Whitney, counsel for defendant, answered:

“It is pretty close to the line. * * * I will withdraw the testimony.”

We are at a loss to understand why the question should now be presented to urge a reversal of the case.

Mortenson, a witness for the plaintiff, testified that on the morning before the accident occurred he passed from Summit street on the plank crossing, and that, as he crossed over the plank crossing, he put his hand on the end of the box car, thus showing the location of the car to be very near to the plank crossing. The defendant sought to meet this testimony and further testimony on the part of the plaintiff by calling defendant’s employés who had taken some measurements later in the day.

In the course of his argument the counsel for plaintiff said:

“You will believe what this witness Mortenson said if all the railroad men in Christendom should swear the other way.”

An exception was taken to this statement, and error is assigned upon this portion of the argument. The language of plaintiff’s counsel is extravagant. I do not construe it, however, as necessarily intended to imply untruthfulness on the part of railroad men because they were railroad men, but as an extravagant claim for the absolute verity of the testimony of Mortenson. The railroad men with whom Mortenson was being contrasted were beyond question the railroad men who had been sworn in the case, and who were employés of the defendant. It was, in substance, as though counsel had said:

“You will believe Mortenson as against a multitude of interested witnesses such as these.”

It is not to be assumed that the jury would he misled by such an extravagant statement, and while the language chosen might have been more respectful to witnesses of the defendant, it was not, in my judgment, such as to justify a reversal of the case on this ground.

The judgment should be affirmed.

Blaib, C. J., and Moobe and McAlvay, JJ., concurred with Montgomery, J.

Hooker, J.

(concurring). It is conclusively shown that the plaintiff had no means of seeing whether a train was approaching while in a place of safety, except by getting out of his wagon and going across the side track. I think it should not be said, as matter of law, that his failure to do this was contributory negligence, for I think we may take judicial notice that few, if any, persons with ordinary hearing are accustomed to do so under similar circumstances. We may perhaps say that it was his duty to stop his team and listen within such a distance of the track as would make it reasonably probable that he would hear the train if one were coming. What that distance should be is a question upon which men would be likely to differ. Manifestly the nearer the track he stopped, the nearer the train would be, and the greater the probability of his hearing it; other things being equal. We may reasonably say that, when he stopped his team, the horses were between 35 and 45 feet from the nearest rail of the main track; and the question, therefore, is : “ Can we say, as a legal proposition, that it was negligent to drive that distance upon a walk, and go upon the track without again stopping to listen, in view of the peculiar and unusual situation ? He had not far from 70 feet to go to get safely across the main track and out of danger. At 3 miles an hour, this would require about 13 seconds; while in that time a train running 6 miles an hour would run about twice, and at 12 miles four times, the distance, approximately 115 feet, and 230 feet respectively. At faster speed the distance would be correspondingly greater; e. g., at 24 miles 460 feet, and at 48 miles 920 feet. Had this been in the open country where trains commonly run at the latter or a greater speed, I should not hesitate to say that the plaintiff was negligent, but it was not. The law required a speed of not exceeding six miles an hour.

If it could be said, under the proof, that he was justified in acting upon the expectation that the train would not exceed 12 miles an hour — its alleged speed — was it negligent to rely on his ability to hear it 280 feet, and therefore to omit stopping, again ? What would careful, prudent people generally do under such circumstances ? I am not prepared to say that we can take judicial notice that they would make a nearer stop, nor that they would not, and therefore I think it was a question for the jury, and I concur in affirming the case.

Ostrander, J., concurred with Hooker, J.

Grant, J.

{dissenting). Plaintiff, while driving his team of two horses and wagon across the defendant’s main track on Summit street, in the city of Ann Arbor, was struck by the engine of the regular morning passenger train of the defendant going north. His horses were killed and himself injured. In this suit he recovered a substantial verdict for damages which the jury found resulted from the negligence of the defendant.

Defendant’s roadbed runs in a valley through the city of.Ann Arbor north and south. At the place of the accident it had two tracks — a main track, and a side track to the west of the main, track. Summit street comes down a hill to the west of the track, and crosses it at right-angles going to the main part of the city. It runs substantially on a level for a short distance from the foot of the hill to the track. Hiscock street is to the south of Summit street, and west of the railroad. It also comes down a hill, and, on approaching the railroad track, it goes into the valley and runs along the railroad track north till it joins Summit street. It is graded from the valley to Summit street. At the junction of Summit street and Hiscock street is a catch-basin. The street is narrow at this point. Plaintiff had a coal wagon; the box being longer than the ordinary wagon box. He had in it a coal shovel and an iron coal chute. The ground was frozen hard. A large number of box cars were standing upon the side track and to the south of Summit street. Across these tracks was a planking in the center of the street, between and outside of the rails. This planking was about 16 feet long. Plaintiff standing in his wagon was 12 to 13 feet from his horses’ heads. According to the plaintiff’s evidence, the north end of the north car upon the side track was over the planking and near the line of ordinary travel. Under defendant’s evidence, the end of the car was some 28 feet from the center of the planking. On the west side of Hiscock street was a fence which terminated at Summit street. Plaintiff drove down Hiscock street over the hill and into the valley on his way to Summit street, and thence into the city. He could not see the approaching train, under his testimony, until he had passed the north end of the north car standing upon the side track. As he approached Summit street, he drove to the fence, so that he might have more room to bring his team and wagon directly across the railroad tracks. This was rendered necessary because of the length of his wagon box and the catch-basin. He testified that, when his horses had reached Summit street, he stopped, stood up in the wagon, and listened. He could not see a train the other side of the box cars. He heard no train. He then drove at a walk into and along Summit street, and, as he passed the box car with his horses’ front feet upon the main track, he saw the approaching train about 56 feet away, as he thought. He testified that he could not jump to the right, as there was not room between his wagon and the end of the box car. Seeing that a collision was inevitable, he ran to the rear of his wagon box to get off. The horses were struck near the flanks and killed. They were thrown to the east, and the wagon box was detached by the collision and thrown to the west. The distance from the fence on the west side of Hiscock street to the west rail of the main track is 33 feet. The distance from the west rail of th9 main track to the west rail of the side track is 15 feet, and from the west rail of the side track to the fence 18 feet. Several persons saw the plaintiff and the train, but were not in position to give him warning in time. They were in position where they could see the train, while, under his testimony, he could not.

1. It is insisted that the plaintiff was, under the undisputed evidence and his own testimony, guilty of contributory negligence, and that the court should, as requested, have directed a verdict for the defendant. This is the important question in the case. Plaintiff could not see the approaching train, and did not see smoke rising from the engine above the box cars. He lived in the vicinity, and his business took him frequently over this crossing. He is chargeable with knowledge that the regular passenger train was about due. He was obliged to turn his team to the west side of the street so as to avoid striking the end of the box car. When his horses had reached Summit street, he stood up in his wagon, looked and listened. He could not see, and did not hear. How far the train at the time he stopped was from the crossing is a matter of conjecture. The ordinance of the city prohibited the blowing of the whistle within the city limits. Of this he must be presumed to have had knowledge. He does not testify that he did not. The noise caused by his horses’ feet and the rumbling of the wheels over the frozen ground, the clatter of the shovel and iron chute in the bottom of the wagon, and the box cars standing between him and the main track, should have told him that he probably could not hear an approaching train. Was it his duty to stop again before his horses were upon the track, knowing that he could not see, and again listen, before putting himself into a position in which, under all the authorities, danger was imminent ? Had he stopped when his horses stood upon the side track, it is manifest that he would have heard the approaching train. Was it his duty to do so ? Did common prudence upon his part dictate this action ? His own testimony bearing upon this question is important:

“When I got to where the front feet of the horses would have been on Summit street, I saw the condition of the cars, and right across from where I make the turn there is a flush tank or hole, and there was ice around it, and I saw the condition I had to meet on account of the cars. I had to make an extra turn. I looked both ways and saw something on the Michigan Central. I turned this corner. I had to cramp the box to get over this plank. It is not over 20 feet. I had to cramp the box to keep away from the flush tank and get the horses straight across over this plank. The horses were just heading onto Summit street when I stopped them. Before I started to turn when I stopped there, I looked down south and north over those cars as far as I could both ways. I thought I saw the Central cars north. I don’t know as I did. I supposed I saw smoke over in that direction, and thought it was from the cars. I did not see anything south, and did not hear a whistle. I did not hear them ring any bell or make any sound until they struck me. * * * When I turned around the end of the car and straightened out onto Summit street, my horses first struck the plank crossing, where the end of the cars were. The car was on the plank it seemed to me. This plank would be 12 or 14 or 16 feet, or something of that kind. This car rubbed against it. * * * I was standing up in my wagon when I was looking and listening for the train. The heads of my horses, when I stopped to look both ways, were just about in line with Summit street, but they were pulled over to the outside of the road. In order to make this turn, it takes a little more room to turn with a coal box than with an ordinary wagon as a rule. When I was driving up there and stopped my horses, I was as near as I could get to that fence that extends along the west side of Hiscock street. My horses’ heads were in Summit street. At that time there was nothing in sight towards the south except those cars. There was no smoke or steam or any notice of the approach of the train that I saw; no whistle or ringing of a bell that I saw or heard. I should judge when I was making the turn the wheels were just as near the north end of this plank as I could get and not go off the plank onto the rail, and I judge the back end of the wagon was near the center. * * * The horses’ front feet had just struck the main track when I first saw the cars, the crossing on the main track, and I judge they made another step. I judge from where they told me they were hit afterwards; from where they were at this time they must have made another step. I did not stop to see. I could see down the main track at that time, I should judge, in the neighborhood of 56 feet. It might not have been that far. I don’t know. It might have been closer. I saw it, and I knew that I could not get away, and I dropped the lines. I did not see or hear any flagman or electric bell at that crossing. There was no gate there to keep me from going across.”

Plaintiff had no concern with the cars of the Michigan Central railroad. The track of that road was on the opposite side of the city, a long distance away, and he had no occasion to cross it or to look for trains passing over it.

Plaintiff makes no claim that he stopped again before he was struck. Other witnesses saw him, and one or two testified that they saw him stop. The place they saw him stop was evidently the place testified to by plaintiff. The defendant’s negligence in leaving the box car standing over a portion of the crossing was before his eyes. He saw it and recognized it. This fact imposed upon him greater vigilance and caution. 2 Thompson on Law of Negligence, § 1670. It is a reasonable rule of law that, when a traveler upon the highway cannot see an approaching train at the crossing, he should stop and listen at that point where the act of stopping and listening will, in all probability, avoid the accident. This is a duty imposed upon a traveler, not only for his own safety, but for the safety of trainmen and passengers. The place of duty is not determined by the distance from, or nearness to, the track, but by the opportunity to listen and thus avoid the danger. The place of opportunity is the place of duty. This is the rule established by Shufelt v. Railroad Co., 96 Mich. 327. Suppose plaintiff had been drawing a load of stone or iron, or other hard and bulky substance, the danger of derailment in case of a collision is apparent. It is apparent that the engineer and fireman could not see the exact location of this box car until they were very near the crossing. Plaintiff was in a position to know this. A railroad grade crossing on the public highway is not only notice of danger, but is also notice that that danger may come at any moment. Plaintiff could not see an approaching train until it was almost upon him, and the jury by their verdict have established this fact. When he did see the engine, it was too late to avoid the collision, for his horses were then in the path of the approaching train. It is true that the defendant was running its train at a speed prohibited by the ordinance of the city, limiting the speed to six miles an hour, and it is conceded that this speed— twelve miles an hour — was negligence. But this did not justify the plaintiff in acting upon the presumption that the railroad company’s employés would conform strictly to the requirements of the law. The language used in Lau v. Railway Co., 120 Mich. 115, is applicable here:

“ Is it not common prudence for one, in entering a dangerous place, to take that course which involves no inconvenience, delay, or trouble to himself, and which will, if followed, insure his own safety as well as that of others? If it is, the law requires him to take it. * * * Engineers ánd firemen do not always perform the duties imposed upon them in giving the signals. While the presumption may be that they do, human nature is not yet so perfect that every one performs his duty. To sustain the plaintiff’s right of action would be to hold that he has the right to rely absolutely upon the presumption of this duty by the trainmen, and that he may ride along regardless of consequences and rely upon the absolute performance of this statutory duty.”

The street in that case was obstructed the same as it was in this. If it was the duty of the plaintiff in that case to alight from his bicycle just before he approached the track, and look and listen, and thus avoid the danger, why was it not the duty of the plaintiff in this case to stop his team when within 10 or 15 feet of the track, and again listen ? To have done this would have no more delayed or inconvenienced him than would Mr. Lau have been delayed or inconvenienced by alighting from his bicycle. This single act of care would have avoided the accident in both cases.

I think this case is ruled by Shufelt v. Railroad Co., 96 Mich. 327. The facts in that case are very similar to those in this. Mrs. Shufelt drove from 90 to 100 feet without stopping to listen, and did not see or hear the train until the horses were upon the rails. We there said:

“ The road was dry and hard. She had two horses, and a lumber wagon with a box, and a spring seat fixed upon the box. She did not stop her team to listen. She had been for a long time familiar with the crossing, and had frequently driven over it. When upon the little rise of ground from 90 to 100 feet from the crossing, she looked to the west, and saw no train approaching. The horses were accustomed to the cars, and were not afraid. They were farm horses. She said she was on a slow walk. She did not stop, and the horses stepped upon the track just as the train struck them. If the woodpile, from the rise of the ground to the track, obstructed her view of the approaching train, it was her duty to stop and listen when nearer the track. Had she stopped upon the rise of ground, it is quite probable that she would have heard the train. She testified:
“ ‘ I did not stand still. My horses were on a walk, and, when I got there, I pulled on the lines, and came almost to a standstill, and looked and listened if I could hear the cars, and I did not hear them, so I went along. I was on a slow walk. * * * I did not stop. I drove right onto the crossing. The horses were ■ between the rails when I first saw the train. When I got on the track, the train was right there.’
“She did not listen for any train or signals from the rise of the ground to the track. She evidently assumed that there was no danger of the approach of a train before she could get across. In this she was not in the exercise of common prudence, either for her own safety or that of those traveling upon the railroad.”

Thompson (2 Thompson on Law of Negligence, § 1656) states the rule thus:

“ It is perfectly plain that if the traveler looks at a place from which he cannot see, or listens from a place from which he cannot hear, and there are other places from which he can see or hear, or both see and hear, and he does not avail himself of those places, to the end of ascertaining whether or not a train is approaching — he has not discharged the duty of exercising ordinary or reasonable care which the law puts upon him.”

See, also, Scott v. Bailway Co., 79 Ark. 137 (9 Am. & Eng. Ann. Cas. 212, and note). If, under the case made by the plaintiff, reasonable minds might draw different conclusions, some that he exercised vigilance and caution, and others that he did not, then the case was properly left to the jury. If, however, under the case made, it was the clear duty of the plaintiff to stop and listen before entering upon this dangerous place where he was deprived of all ability to see, the defendant was entitled to the direction of a verdict in its favor. I think the duty to so stop and listen again is clear. Grade crossings are allowed in this country. The duty of railroad companies and travelers upon the highways to use all reasonable vigilance and caution to avoid collisions is mutual. The failure upon the part of either to use such reasonable vigilance and caution does not excuse the other. When both are negligent, both must suffer the consequences which result.

Under this record the court should have directed a verdict for the defendant.

2. Inasmuch as a new trial is ordered, one other question must be determined. A witness named Mortenson testified for the plaintiff that the north end of the north box car extended over the .plank crossing. There was testimony on the part of the defendant in direct contradiction of this testimony. In arguing the case to the jury, the learned counsel for the plaintiff in the heat of argument said:

“You will believe what this witness Mortensen said if all the railroad men in Christendom should swear the other way.”

Defendant’s counsel excepted to this statement, and thereupon plaintiff’s counsel said:

“I will allow my brother on the other side all the ingenuity he can use.”

The location of this car became a most material question of fact. If it was located at the distance from the crossing testified to by the defendant’s witnesses, the plaintiff was beyond doubt guilty of contributory negligence. His right to recover depended entirely upon the determination of the location of this car. The statement of counsel virtually said to the jury:

“ Railroad employés, when testifying in behalf of their employer, are not worthy of belief, when a witness for the plaintiff and witnesses for the employer are in direct conflict.”

It charges in no uncertain words that the testimony of railroad employés should be discredited, not because they are employed by a party to a suit, but because they are employed by ,a railroad company. It suggests that a different rule is to be applied in testing the credibility of employés of railroad companies from that applied in testing the credibility of the employés of other parties. It suggests that employés of railroad companies are peculiarly untrustworthy as witnesses. We may say, as we said of a similar remark in Dolph v. Railway Co., 149 Mich. 278:

“ Here is clearly an appeal to the prejudice of the jury. They are asked, in effect, to discredit defendant’s witnesses because defendant is a railroad company. It is as if counsel said: ‘Don’t give railroad companies a fair trial because they are railroad companies.’ I think every one will concede the injustice of such arguments. It is clearly our duty to condemn them, and protect litigants from their injurious consequences.”

While we dislike to reverse cases for intemperate language, we cannot avoid the responsibility when language is used which clearly tends to prejudice the jury. If counsel was provoked by any action or language on the part of defendant’s counsel into making these statements, the record fails to show it.

Judgment should be reversed, and new trial ordered.