text:
    WOOLFITT v. HISTED.
    1. Trusts — Passive Trusts Abolished — Executed by Statute of Uses.
    Passive trusts are abolished by statute in this State, but where a deed is so worded as to create a passive or naked trust, the statute on uses and trusts (3 Comp. Laws 1915, § 11565 et seq.) executes it by forthwith passing the title to the beneficiary.
    2. Same — Title Remains in Grantor if Beneficiary Dead When Executed.
    If the beneficiary in a deed attempting to create a passive trust was dead at the time it was executed, said deed was void and the title remained in the grantor.
    3. Escheated Estates — Presumption of Death.
    Under 1 Comp. Laws 1915, § 329, if any person shall disappear and his whereabouts remain unknown for the space of seven years, etc., he shall be presumed to be dead.
    4. Trusts — Deeds—Construction—Intent.
    In a deed from a father to his son, the words designating him as “trustee for Katherine Smith of Chicago, Illinois,” held, to import an intent on the part of the grantor to invest her with some beneficial interest in the property conveyed.
    5. Same — Written Acknowledgment of Trust by Grantee — Frauds, Statute of.
    Written acknowledgment of said trust by the grantee supplements and confirms said deed, and satisfies the statute of frauds by the harmonious evidence in writing from both grantor and grantee of a passive or naked trust, which the statute executes by placing the legal estate in the beneficiary if then living.
    Appeal from Bay; Houghton (Samuel G.), J.
    Submitted October 31, 1919.
    (Docket No. 114.)
    Decided December 22, 1919.
    Rehearing denied April 10, 1920.

      Bill by Amos J. Woolfitt against Charles B. Histed to quiet title to land. From a decree for plaintiff, defendant appeals.
    Affirmed.

      Victor Spike, for plaintiff.

      Kinnane, Black & Leibrand, for defendant.
   Steere, J.

Plaintiff sought by this bill and obtained a decree in the circuit court of Bay county, in chancery, quieting his; claimed absolute title in fee to 40 acres of land in: the township' of Merritt, Bay county, described as the northwest quarter of the northeast quarter of section 30, town 13 north, of range 6 east. From that decree defendant appeals, claiming title to said land under a sheriff’s deed issued to him on an execution in a suit he commenced by attachment against John B. Schabel of Tacoma, Washington, to whom defendant claimed said land belonged.

It was shown upon the hearing that for years prior to January 24, 1898, the 40 acres in question with other lands belonged to Balthaser Schabel, father of John B. Schabel, Rose Schabel-Weber, Josephine Schabel-Gerard and Katherine Schabel, the latter being the youngest. She gave birth to an illegitimate son on April 29, 1892, who died four years later. After his birth she left home and went to Chicago where her brother John found and took her back. She had assumed, or adopted, the name “Katherine Smith” and was thereafter so known and called by members of her family and others who knew and had occasion to refer to her. She left home again before the death of her child, and for over 20 years she has not been seen or heard of by any member of her family, or others, so far as shown, although efforts were made by the family through public officials and otherwise to find her. On January 24, 1898, some time after her disappearance and about two years after the death of her illegitimate child, her father, Balthaser Schabei, then a widower and well along in years, made conveyances dividing up his realty among his children, giving 90 acres to his son John B., 40 acres to his daughter Rose Weber, 40 acres ? to his daughter Josephine Gerard and by quit-claim deed conveyed the 40 acres in question to his son “John B. Schabei, trustee for Katherine Smith of Chicago, Illinois.” This 40 acres was near but not adjacent to the 90 which he conveyed to John in his own right. This deed was in short form, for an expressed consideration of one dollar, and without words of inheritance except as supplied by statute.

Plaintiff’s claim of title is based on a deed to him from John, as “trustee for Katherine Smith,” dated May 23, 1916, and a deed from the father, Balthaser,. dated June 10, 1916.

The sheriff’s deed relied upon by defendant is dated July 1, 1918. For years following the conveyances of 1898, given by Balthaser to his children, John kept and controlled the 90 acres given to him and the 40 in question conveyed to him as trustee for Katherine. He lived upon the 90 acres for some time with his family, farming the whole 130 acres, afterwards renting the same to various tenants, and on April 30, 1910, rented the 130 acres to defendant Histed for a term of five years by a written lease containing covenants of quiet and peaceable enjoyment. In the meantime John had moved to the State of Washington, and being desirous of selling his farm authorized an agent at Bay City to do so with the suggestion that negotiations might be had with defendant, then in possession under the lease, to surrender the same. A deal was consummated by which plaintiff early in 1911 purchased the 90 acres of John, having the deed therefor made to his son Emerson, from whom he took a life lease. Some negotiations were had between defendant, plaintiff, and Fisher, the agent of John, relative to defendant’s surrendering his lease, the details of which we do not regard of controlling importance as no agreement was reached.

On May 1, 1911, plaintiff commenced in the name of his son Emerson eviction proceedings against defendant before a circuit court commissioner and the case went by appeal to the circuit court. While this and other litigation between the parties was pending in the circuit court defendant Histed commenced an action by attachment against John, who was in Washington, claiming damages for breach of the covenant in his lease for quiet and peaceable enjoyment, causing an attachment levy to be made on the 130 acres, consisting of both the 90 which John sold to Woolfitt and the 40 acres in question here, at that time still standing in the name of John as trustee of Katherine.

On December 2, 1911, an adjustment between these parties of their then litigation was made by which plaintiff agreed to and did pay defendant $550 in cash and surrendered to him a note of $375 previously given for rent, in consideration of a surrender of the lease upon the 90 acres and a release of the attachment levy against the same in defendant’s action against John. It was, however, provided in the stipulation they entered into that—

“This agreement will not affect the right of action in said attachment suit of said Histed against said Schabel, except in so far as the consideration recovered in this settlement applies upon the damages of said Histed.”

Histed thereafter pressed his attachment suit against John to a default judgment and made execution levy on the 40 acres standing in John’s name as trustee, causing the same to be sold at sheriff’s sale at which he purchased the property, and secured the sheriff's deed under which he is defending.

While some effort is made in the briefs of counsel to argue the equities of the case we discover no appealing equities on either side. These parties were maneuvering at litigation length, as we view it, to get this 40 acres as cheaply as possible. So far as shown neither ventured in the project near the full value of the 40 which was assessed for $2,400 in 1915. The record does not disclose which, if either, of these parties was in possession of the property in dispute when this suit was begun, but defendant in his answer also asks as affirmative relief by way of cross-bill that his title to the 40 acres, claimed under his sheriff’s deed, be quieted and he be declared the owner in fee simple of said described land. Although his default judgment under attachment proceedings against John B. Schabel was taken March 28, 1912, and the property sold on execution sale June 1, 1912, according to the sheriff’s certificate, no deed was secured from that officer by defendant until nearly two years after plaintiff had received his deeds of the property from Balthaser and John B. Schabel, the sheriff’s deed on execution sale being dated July 1, 1918, and acknowledged July 3, 1918.

We thinki this case turns primarily on legal questions. The controlling ones debated in the briefs of counsel are whether, according to the rules of construction and evidence which under our practice obtain in a chancery court, the conveyance from Balthaser Schabel to John B. Schabel, trustee for Katherine Smith, created a trust, and if so the kind and effect.

Plaintiff’s contention is that the deed to John B. Schabel as trustee created a passive or naked trust which by operation of the statute immediately vested the legal title ip Katherine if then living, or if she was then dead the instrument was without legal effect and void, leaving the title in the father, Balthaser; that Katherine is presumed to be dead, not having been heard of for more than 20 years, and, if it be assumed she was living when the trust deed was given, Balthaser as her only heir subsequently inherited the title from her, which by his conveyance of June 10, 1916, passed to plaintiff.

Defendant contends that the words following the name of the grantee in the deed create no trust, are only descriptio personse, and therefore vest an estate in fee simple in John B. Schabel under section 11751, 3 Comp. Laws 1915, which provides:

“It shall not be necessary to use the words ‘heirs and assigns of the grantee’ to create in the grantee an estate of inheritance; and if it be the intention of the grantor to convey any lesser estate, it shall be so expressed in the deed.”

In connection with this, counsel for defendant make the somewhat extreme statement that “none of the rules of construction are applicable to statutory deeds,” citing Adams v. Fisher, 143 Mich. 673, wherein the court held that the technical rule of construction that an habendum repugnant to the grant is void does not apply to deeds of statutory form, saying:

“The technical rule relied upon does not apply in construction of statutory deeds.”

The court also said:

“A person unskilled in the law would probably have no difficulty in determining that the deed actually means what complainant alleges to be its legal meaning and effect.”

In the instant case the suggestion is not far fetched that a person unskilled in the law would naturally and probaMyNáetermine that a deed to John, “trustee for Katherine Srfiaith, of Chicago,” was intended to give her some interest or estate in the property which he was to hold as her trustee, whatever might be the technical rule of construction as to words of description. In this case not only is the grantee designated as trustee but the beneficiary he is trustee for is named, which to any person of understanding whether skilled in the law or not would be much more significant than the bare descriptive word “trustee” without any suggestion as to who it was for. The deed was recorded on or about the time it was given and defendant had constructive if not actual notice of it and its contents when he attached the land in his. action against John.

It is undisputed that the deed to John does not create an active trust. If a trust is created at all it is a naked or passive trust, which is defined to be “a trust in which the property is vested in one person upon trust for another, and the nature of the trust not being qualified by the settlor, is left to the construction of the law.” Bispham Principles of Equity (7th Ed.), § 54. Passive trusts are abolished by statute in this State, but where a deed is so worded as to create a passive or naked trust our statute on uses and trusts (chapter 221, 3 Comp. Laws 1915) executes it by forthwith passing the title to the beneficiary. Burdeno v. Amperse, 14 Mich. 91 (90 Am. Dec. 225); Ready v. Kearsley, 14 Mich. 215; Everts v. Everts, 80 Mich. 222; Rothschild v. Dickinson, 169 Mich. 200. Those questions are now settled in this State past discussion. If this deed by fair intendment understandingly expressed a passive trust in John B. Schabel for Katherine Smith, his sister, she became the cestui que trust, plainly designated by name, and by force of the statute title passed to her when the deed was given in 1898, if then living. If she was then dead the deed was void and the title thereafter remained ip^fier fether until he conveyed the same to plainti^ Skinner v. Grace Church, 54 Mich. 543; Paine v. Boynton, 124 Mich. 194. Seven years from the time she disappeared and her whereabouts remained unknown she was by .statutory provision presumed dead; 1 Comp. Laws 1915, § 329. Her father was then her only heir and as such , inherited the property.

Defendant’s claim of title by execution sale under his judgment against John is necessarily based on and limited by the deed to John from his father, then of record, designating him as “trustee for Katherine Smith, of Chicago, Illinois.” The natural meaning of such words to a person of ordinary understanding imports an intent on the part of the grantor to invest her with some beneficial interest in the property conveyed. It implies more* than the bare suggestion of trusteeship for some possible unknown beneficiary. In Railroad Co. v. Durant, 95 U. S. 576, where a party was simply designated as “trustee” the court held it sufficient evidence of a trusteeship to admit parol evidence of its nature. But more in point, it was held in Boardman v. Willard, 73 Iowa, 20 (34 N. W. 487), that where a grantee named Woolston was designated in a conveyance as “trustee” it sufficiently indicated that he held title for an unnamed beneficiary, and he having acknowledged the trust by a verified petition asking for an injunction, an execution levy under a judgment against him individually created no lien on the interest of his cestui que trust, saying:

“This title being in Woolston, trustee, the judgment was not a lien thereon, nor was one created by the levy of the execution, for all the plaintiff obtained thereby was a lien on the interest of Woolston. If he had none the plaintiff got none.”

In the instant case John Schabel distinctly acknowledged the trust in writing both in identified letters written by him and in signing his sworn testimony taken in this case by deposition, in the State of Washington, which is explanatory and positive to that effect. In a letter of May 26, 1916, from Washington to plaintiff’s counsel he wrote:

“As to my having any interest in the forty I have none excepting as trustee for Katherine Smith.”

And on June 21, 1917:

“I only held this deed on the forty as trustee for my sister, and when father deeded it she was gone and he said he would deed it to me as trustee for her, and that was all the clame I had in it, and father wanted her to have it as her shair,” etc.

Counsel for defendant objected to these letters as self-serving statements of the grantee, not a party to the suit, in effect and with only “the force of oral testimony,” and also to John’s deposition as in its nature but oral testimony, claiming all were incompetent because oral testimony cannot be resorted to for the purpose of creating a trust in real estate. That question is argued at length with many citations of authority in the briefs of counsel on both sides. It may be conceded that a trust in real estate cannot be created by parol, but where the writings are obscure it has been frequently held in chancery proceedings that oral evidence is admissible to explain the circumstances and make more certain the existence of a trust. As we view this issue, however, it is unnecessary to review the cases cited and arguments of counsel, or to go into that interesting and somewhat complicated subject upon which some of the authorities seem difficult to reconcile, for in this case we conclude there is written evidence of the essentials of a passive trust. In 1 Perry on Trusts (6th Ed.), § 82, it is said in part:

“* * * The statute of frauds will be satisfied if the trust can be manifested or proved by any subsequent acknowledgment by the trustee, as by an express declaration, or any memorandum to that effect, or by a letter under his hand, or by his answer in chancery, or by his affidavit, or by a recital in a bond or deed, or by a pamphlet written by the trustees, or by an entry in a bank-deposit book; in short, by any writing in which the fiduciary relation between the parties and its terms can be clearly read. And if there is any competent written evidence that the person holding the legal title is only a trustee, that will open the door for the admission of parol evidence to explain the position of the parties. * * * Nor is it necessary that the letters, memoranda, or recitals should be addressed to the cestui que trust, or should have been intended when made to be evidence of the trust.”

In quoting the above we do not lose sight of the fact that the grantee in the deed is not primarily the creator of the trust, but the grantor who conveys the property. In this deed conveying 40 acres of land for a consideration of one dollar, Balthaser Schabel designated his son John as trustee for his absent daughter, and John’s sister, who is described in the deed by name and last known place of residence. Why was that done? He, at! the same time by separate deed, conveyed to John for himself, not designating him otherwise than by name, a nearby 90 acres for a consideration of one dollar. It would be a strained, unnatural and narrow construction to say the contemporaneous deed to him as “trustee of Katherine Smith, of Chicago, Illinois” was intended for and meant nothing more than a description of John. We think by fair construction the language of the deed itself expresses and gives notice of an intended passive trust in John for a named beneficiary, sufficient, ^t least, to warn and put upon inquiry; while written acknowledgment of the trust by John supplements and confirms the same, and satisfies the statute of frauds by the harmonious evidence in writing from both grantor and grantee of a passive or naked trust, which the statute executes by placing the legal estate in the beneficiary, if then living. She was in contemplation of law deceased at the time her father deeded the property to plaintiff in June, 1916, and in either aspect of the proposition he then had title.

The decree will stand affirmed, with costs.

Bird, C. J., and Moore, Brooke, Fellows, Stone, and Kuhn, JJ., concurred. Sharpe, J., did not sit.


source: Caselaw Access Project

author: Steere, J.

license: Public Domain

text:
    JEWELL v. ROGERS TOWNSHIP.
    1. Highways and Streets — Municipal Corporations — Failure to Barricade Closed Highway.
    After having laid out, opened, improved, and maintained a road as a public highway for many years, it was the duty of the township and a quarry company which it permitted to destroy the same by extending its quarry across it, to effectually exclude public travel by barriers from that particular portion made impassable.

    2. Negligence — Contributory Negligence of Driver Imputable to Passenger in Automobile.
    The negligence of the driver of an automobile is imputable to a passenger, and in an action for the death of the passenger it is incumbent to show, before recovery can he had, that no negligence of either caused or contributed to the accident.
    3. Highways and Streets — Municipal Corporations — Intoxication as Contributory Cause — Question for Jury.
    In an action against a township and a quarry company for the death of plaintiff’s intestate, a passenger in an automobile which ran into an excavation across a closed public highway, where there was evidence that deceased and the driver had been drinking beer in a saloon a short time before tbe accident, the question as to what extent they were under the influence of liquor, held, for the jury under proper instructions.

    4. Same — Conditions as to Light — Question fob Juey.
    In such case, where there was some conflict in the evidence as to the exact time the accident occurred, and whether it was then getting dusk, the question as to what extent the approach of night or evening shadows might affect the clear view of one driving along the highway, held, for the jury.
    5. Same — Contributory Negligence — Burden of Proof.
    In' order to recover it was necessary for plaintiff to show that deceased was free from contributory negligence.
    6. Same — Contributory Negligence — Question for Jury.
    In such action, where the testimony was very conflicting, the trial court properly held that the question of deceased’s contributory negligence was for the jury.
    7. New Trial — Weight of Evidence.
    Where the trial judge, who was familiar with the locality, and who heard and saw the witnesses, after twice reviewing the case, declined to disturb the verdict of the jury, or hold that it was against the great weight of the evidence, this court will not, on error, substitute its judgment for that of the jury or the trial judge.
    8. Appeal and Error — Harmless Error — Damages.
    Where the widow testified that deceased earned $100 a month, but on cross-examination replied that he worked on commissions, and all she knew was what he told her, it was not reversible error to refuse to strike same, where she further testified that he contributed to the support of herself and child an average of $60 a month, and the expense of taking care of the child was $15 a month, in view of the size of the verdict, which was only $2,500, when compared with a possible estimate on that basis under his and her life expectancy.
    9. Death Act — Distribution of Money Recovered Under Death ■' Act to Widow and Child.
    Under 3 Comp. Laws 1915, § 14577, it was for the probate court and not the jury to determine the proportion to be distributed to a mother and son of money recovered under the death act in an action for their benefit for the death of the husband and father.
    10. Same — Verdict Apportioning Damages — Curing Error by Putting Verdict in Legal Form.
    Although the foreman of the jury first announced that they had found “for the boy, $1,500; for the widow, $1,000; total, $2,500,” the verdict was not therefore illegal, where it was put into legal form by the court, and in answer to an interrogatory as to whether they assessed plaintiff’s damages at $2,500 against both defendants, they all answered “yes.”
    Error to Presque Isle; Emerick (Frank), J.
    Submitted October 8, 1919.
    (Docket No. 14.)
    Decided December 22, 1919.
    Case by Edward Jewell, administrator of the estate of Raymond Jewell, deceased, against the township of Rogers and the Michigan Limestone & Chemical Company for the negligent killing of plaintiff’s decedent. Judgment for plaintiff. Defendants bring error.
    Affirmed.

      Henry & Henry, for appellant township.

      G. Covey, Jr., for appellant company.

      Homer H. Quay and C. S. Reilley, for appellee.

      On duty to provide barriers against* abandoned highway, see note in 37 L. R. A. (N. S.) 1158.

      On intoxication as affecting negligence with relation to persons injured on highways, streets, etc., see notes in 40 L. R. A. 138; 47 L. R. A. (N. S.) 737, and L. R. A. 1916F, 102.

   Steere, J.

This action was brought by plaintiff as administrator of the estate of his son, Raymond Jewell, a young married man, 22 years of age, who lost his life on May 16, 1917, through an automobile in which he was riding falling into the pit of a quarry belonging to defendant Michigan Limestone & Chemical Company at a point where it crossed an old highway in the defendant township of Rogers. The negligence charged in plaintiff’s declaration is that defendants did not erect and maintain suitable barriers and warning notices effectually closing said road after extension of the Limestone & Chemical Company’s quarry across it rendered it impassable and dangerous for public travel, of which fact defendants were fully informed at the time of the accident. At the completion of plaintiff’s proofs and at conclusion of the testimony, defendants’ counsel moved for a directed verdict in their favor upon the ground that deceased’s own negligence' caused or contributed to his death, pressing, the claim also by requests to charge. . These were denied and the case submitted to the jury, resulting in a verdict in plaintiff’s favor for $2,500. Before entry of judgment defendants’ counsel moved the court under section 14568, 3 Comp. Laws 1915, for a judgment notwithstanding the verdict. The motion was denied and judgment entered on the verdict. Defendants assign 31 grounds of error directed to rulings on admission of testimony, charge of the court, and, especially, refusal to direct a verdict as requested.

Rogers township lies in Presque Isle county, of which the village of Rogers City is the county seat. Rogers City is in fractional section 15, town 35 north, of range 5 east, on the shore of Lake Huron, which in that locality has a general bearing northwest and southeast. On and near the lake shore about two miles southeasterly from Rogers City and near the site of an old location known as Crawford’s quarry, is the extensive establishment of defendant Michigan Limestone & Chemical Co., called “Calcite,” consisting of a large crushing plant, with numerous buildings of various dimensions, extensive dock facilities, many small dwellings for employees, etc., and a large limestone quarry extending southeasterly in favorable rock formation for over a mile, equipped with railroad tracks along its floor, steam shovels, drilling machinery and other appliances essential to extensive quarry operations. This is known as the Calcite quarry and the defendant Limestone & Chemical Co. is also referred to as the Calcite company. The streets of Rogers City are not laid out with the cardinal points of the compass, but parallel to and at right angles with the shore of Lake Huron. Two gradually diverging roads lead in a southeasterly direction from the village for some distance, but eventually join some two and a half miles southeasterly from the village at the common corner post of sections 25, 26, 35 and 36 in said township, from which point a single road continues directly south along the section line towards Hagensville, Metz, Posen, and on to Alpena. The most westerly, called the “Third street road” is the direct and commonly traveled route. It runs southeast through the village and beyond in a straight line to where the roads come together. The other and older road on which the accident occurred, called the “Lake Shore,” “Loop” or “Crawford’s quarry” road leads from the village in a circuitous and more easterly route along the lake shore for near a mile past Calcite, or old Crawford’s quarry, where it makes a sharp southwesterly turn and continues in that general direction to the quarter-post in the line between sections 25 and 26, thence south on the section line, to where it is diagonally joined by the Third street road at the common corner of the four sections before mentioned, from which point the old highway called the Metz road continues on south. A “short cut,” about 100 rods in length, known as the “Wilson road” was also extended west across the angle to the Third street road from the quarter-post where the Crawford’s quarry road turns south, connecting at right angles with the Third street road at a point over 1,600 feet above where, it intersects the old shore road at the section corner. Before Third street road was opened this Crawford’s quarry road was a part of the old Metz road to Rogers City, which was opened and improved in an early day and for many years the main, if not the only, thoroughfare to that village from the south.

After the more direct way by Third street was improved the old shore road was comparatively little used, but was maintained as a public highway by the township, open and in safe condition for travel until, in the latter part of 1916, the Calcite company’s quarry-excavations working to the southeast intersected this road where it angles southwesterly across the northwest quarter of section 25 towards the quarter-post at which it turns south.

It appears that before opening its quarry across this road the Calcite company petitioned the highway commissioner of Rogers township for a discontinuance of the road and proceedings were taken by which said commissioner, on July 22, 1916, made and signed an order discontinuing that portion of the old road extending northeasterly through section 25 from its west to its north section line. This order and all official papers in connection with it remained in the hands of the Calcite company’s attorney and were not filed with the township clerk until after the accident in May, 1917. The highway commissioner testified and it is admitted that the Calcite company agreed to put up barriers to guard the discontinued road and notify the public that it was closed. This the company did at the intersection of Third street and the Crawford quarry road, where it is claimed the highway commissioner directed the barrier and notice should be placed. It is undisputed that no barriers or notices were placed at the quarter-post half a mile north where the short cut, or Wilson road, strikes the Crawford quarry road, or where the short cut intersects the Third street road. There is abundant proof that the barrier, with notice upon it, which they did place where the Third street and Crawford quarry roads came together was not substantial, or adequate, could readily be thrown down or removed, and that numerous witnesses passing that way either did not notice it at all or observed it was thrown down, outside of the traveled way. Charles Osgood, cashier of the Presque Isle County Savings Bank, who passed by there on the evening of the accident, testified no barrier was up at that time. George Endres, a business man of the village, testified he had at times seen the barriers in proper shape standing upon wooden horses across the road, but “the Sunday before the accident the barrier was down,” and on the night of the accident he “placed the barrier and these horses as they had been before * * * to prevent anybody from duplicating the accident.”

Otherwise than as invaded by the quarry operations the Crawford quarry road was a well built stone road, .fit and in safe condition for travel, with the appearance of a used road. The place of this accident, where the quarry is excavated across the line of the old highway, is approximately two-thirds of the distance from the quarter-post where the road turns northeast and diagonals in that direction across the northwest quarter of section 85 to where it reaches the north line of said section. The discontinued highway as described in the proceedings for vacation is that small portion of the Crawford quarry road which runs diagonally in a northeasterly direction across the above described 160 acres from its southwest comer. In each direction the Crawford’s quarry road continues as formerly, an improved highway legally laid out and open to public travel, so far as this record discloses. At the time of the accident the quarry at the place it crossed this road was 34 feet 5 inches deep, from the surface where the road ran to its brink on the south side or, as otherwise stated, that was “the distance from the edge of the cliff down to the floor or base of the quarry.”

The two men, Wright and Jewell, .who met their death in this accident, were sewing machine salesmen, or agents. Plaintiff’s intestate, Raymond Jewell, was then living with his wife in Rogers City, having recently taken an agency from the Davis Sewing Machine Co. covering Rogers City, Alpena and other territory. Willard Wright, who owned and drove the car at the time of the accident, was a salesman for the Bruce Sewing Machine Co., whose field of operations was in the southern part of the State. He had driven a car during, two years previous, mostly a Ford which he owned, and was an experienced driver. He had a cousin named Ellis Wright living in Alpena at whose house he stayed the previous night and on the day of the accident they went over to Rogers City together, each driving his own car, arriving there about noon. Ellis Wright testified that, so far as he knew, Willard had not previously been to Rogers City since 1915, at which time he rode over with him and they drove around by the Lake Shore, or Crawford’s quarry, road.

• In the afternoon the Wrights spent a couple of hours with a man named Hagle on some contract he had involving jobs situated at different places, and Ellis Wright rode with him around town for a time. Willard Wright and Jewell were also seen riding together at about 4:30 going north on Third street in a Ford car. Ellis Wright testified that “somewhere about 4 o’clock” he went with Hagle, Jewell and Willard to Adolph Mende’s saloon where they “drank a little beer,” talked together, told stories, had some singing and dancing and passed the time until between 5:30 and 6 o’clock when he went home with Hagle; that Jewell and his cousin were sober when they left them, and about an hour later on returning down town they heard the boys were killed and started down there in Hagle’s car to see who it was, meeting a Mr. Kitchen who told witness it was his cousin wno had been killed. He estimated the time of their starting as “somewhere around 7 o’clock” and stated it “was just getting dusk.”

Jewell and Wright appear to have left Mende’s place and started on their fatal ride in Wright’s car, which he was driving, not long after 6 o’clock. A barber named Londo saw them drive past his shop in the central part of the village at 6:15, driving as he judged about 15 miles an hour. Eugene D’Vincent, the county clerk, who knew Wright, had seen them riding together earlier in the afternoon and saw them passing his house on Frederick street coming up town from the direction of Mende’s place at about half-past or “may be 20 minutes,” after 6 o’clock, driving a “little fast” and noticed them turn the comer at Larke street, which joins Third street. He noticed the driver made the turn as a skillful chauffeur would and did not see anything peculiar about their conduct except “they came along at a fairly good rate of speed and made a good turn and one of the boys” slapped the driver on the back when he made the turn. A man named Wilson Pines who lived “in the second last building going out towards Metz” testified that he was out in his yard after supper to pick up some stuff for wood when his smallest child went out on the road and he heard somebody “give a yell out of them,” and looking up he saw dust and an automobile coming. He called his child, going out into the road after him, and took him away, and the automobile passed at what he estimated as “between 30 and 35 miles an hour — something like that,” and they yelled again just as they went by him. They were next seen by an employee of the Calcite company named Turner, who operated a drill at the quarry and was on the top of the cliff at the southerly edge of the quarry putting on his overalls to go to work, about five rods from where the old Crawford’s quarry road terminated at the cut and saw them go over. He first saw them when they were “about seven or eight rods” from the cliff, driving he “should judge about 25 miles an hour,” and saw them plunge over it. He testified that it was then daylight, gave the time when he first saw them as “between five and ten minutes after seven” and did not observe that they slackened speed before the car went over. Both were dead at the bottom of the cliff on the floor of the quarry 34 feet below when Ke and a fellow workman ran to the edge of the quarry to see if they could help them. Why these men attempted to go over this road is but conjecture and of little significance. It was a comparatively short drive of but a few miles around this triangle back to Rogers City over a good stone road except for this deep quarry, cut across it by the Calcite company, and, so far as any public record showed, over a long opened and used public highway. If they turned northeast from the Third street road to the left towards the lake pt where the short cut, or Wilson road, leads across to where it joins the Crawford’s quarry road and along it northeast to the place of the accident, they went over a road upon which no warning notice or barriers were ever placed. If they went the longer way, continuing out the Third street road to its intersection with the Crawford's quarry road at the section comer, the inadequate barrier and notice which had been placed there were tom down that evening, and from there to the point at which the old road is claimed to have been discontinued is half a mile north.

After having laid out, opened, improved and maintained this road as a public highway for many years, permitting and inviting its public use as such, it was clearly the duty of the township and those it permitted to destroy the road at that point to effectually exclude public travel from that particular portion of it made by them totally impassable and exceptionally dangerous by such fences, barriers and other means as would plainly warn travelers of the danger, and to maintain the same while such dangerous conditions were continued with an otherwise open, improved highway deceptively leading to the danger. This duty is sharply made manifest by the conditions shown here, where a deep, unguarded, sunken quarry was cut across this well-known highway by a private company, authorized so to do by the highway commissioner under incompleted steps to discontinue but a short section of a long and long-used legal thoroughfare, leaving the same with unmarked dead ends at each extremity of the portion proposed to be discontinued. The law is too well settled on that subject to call for discussion or citation of authority and there was abundant evidence to carry the question of these defendants’ negligence to the jury.

The closer question to the merits of the case is the asserted contributory negligence of deceased. It is urged for defendants that facts not controverted entitle them to a directed verdict on that ground. Plaintiff’s intestate was a passenger. He was riding with Wright who owned and drove the car. As to this the court very fully, emphatically and correctly charged the jury that the negligence of the driver was imputable to the passenger, and that it was incumbent upon plaintiff to show before he could recover that no negligence of either caused or contributed to the accident, that “if the negligence of Jewell or the negligence of the driver, Wright, either caused the injury or contributed to the injury — was a part of the cause of the injury, the plaintiff in the case cannot recover.”

Counsel for defendants contend in the first place that the evidence that those men were intoxicated at the time of the accident is beyond controversy, particularly emphasizing what is stated to be the undisputed testimony of an employee of the Calcite company named Pines who testified that he went into Mende’s saloon that evening at about half-past 6 to get a pail of beer; that Wright, whom he knew, was there with Jewell; they were having a good time and singing, asked him to have something to drink and he drank two glasses of beer with them and they paid for his beer, including what he got in his pail; that he was not in there over five minutes, and “they were drunk at that time.” On cross-examination he said he “took them for drunk,” but there was nothing outside of their singing and joking. Jewell was shown to be a good singer who sang frequently on public and private occasions. In view of the testimony that these men drove past Londo’s barber shop down town at 6:15, and up past D’Vincent’s place at 6:20 or half-past six, as they describe, it was not for the court to accept Pines’ narrative of events in Mende’s saloon at half-past 6 as beyond controversy. These men are not shown to have drank at all until aftér 4 o’clock that day, nor anything stronger than beer. That Wright was a good driver, could and did drive well and skillfully when last seen in the village, is undisputed. If and to what extent those men were under the influence of liquor was properly left to the jury with a plain instruction in substance that it Was for them to decide that question from all the evidence in the case and determine whether and to what extent it affected their judgment or rendered them careless and reckless; and in its direct application whether by reason of such condition they, or the driver, failed to exercise the ordinary care and caution which a prudent and careful driver would exercise under like circumstances.

Defendants also emphasize the fact that these men drove over the cliff in broad daylight as . impelling evidence of their negligence. Defendants’ testimony shows that it was yet daylight. There is some conflict in the evidence as to the exact time it occurred, and whether it was then getting dusk. Defendants’ own testimony shows that it occurred about sundown. Turner gives the time as 5 or 10 minutes after 7, and John Marsters, superintendent of the Calcite company, testified the sun set at 7:12 on that date, that he went over to the scene of the accident a few minutes after 7 and it was “quite light at that time.” How light and to what extent the approach of night or evening shadows might affect the clear view of one driving along that highway were purely questions of fact for the jury to determine and apply to the chief question of deceased’s, or the driver’s, negligence. It was so left by the court to the jury. Other things along the way as it approached the cut, of which defendants introduced testimony, are insisted upon as ample warning of danger ahead, and urged as conclusive evidence of contributory negligence — such as the. fact the timber was cut away for about 500 feet back of the quarry, giving a view to one approaching on the road of the operations going on at that place, electric drills near the edge of the cut, steam shovels, engines, etc., down in the quarry,’ and about 105 feet back of the cliff a water pipe crossing it, a drill case, wires, poles and other things on of near the road, some of which were in the road and driven over by those men, and other similar evidence of operations furnishing argument against due care. These were referred to with considerable detail by the court in charging the jury and submitted as proper matters for them to carefully consider in their bearing upon the question of contributory negligence, from which plaintiff must show freedom in order to recover.

It was shown that the old Crawford’s quarry road ran right to the edge of the cut, or cliff, with no traveled highway turning from it to the right or left; that it was in as good condition and fit for travel there as other portions of the road except for the water pipe across it and four or five small poles over which Turner, who said the timber was cut back 7 or 8 rods, stated the automobile “bounced” as they approached the edge of the cliff, the poles, water pipe, etc., all being within 130 feet of the edge.

There was abundant evidence visualized by photographs that a person driving along the road in the direction these men were going could not see the quarry itself until within a very short distance of its almost perpendicular edge. How far back of the cliff was in dispute. A witness named Lozien, who worked for the Calcite company at the time of the accident, driving a team hauling sand and dynamite, and had stopped parties driving towards the quarry when they were within 200 feet of it, was familiar with and had teamed around that side of the quarry and testified that from the edge of the clearing, which he estimated about 500 feet back, a person could see no part of the quarry, not even its easterly edge or bank, and that a person going in that direction had to get within about 30 feet of it before he could see anything. These distances were disputed and there was testimony that the east edge of the quarry could be seen much farther back, but in any event the point upon the road at which it was possible to discover that the quarry was cutting across it was an issue of fact.

At defendants’ request the jury was taken over the road by the sheriff to the place of the accident and viewed the premises under instructions from the court, being properly cautioned and advised that it was a permissible proceeding in the progress of a trial for the jury under direction of the court to view the premises involved to aid them in understanding the evidence given as to the physical locations of roads, etc.

In denying defendants’ motion for a judgment notwithstanding the verdict, and again in denying their motion for a new trial, the court reviewed the case at some lenght, pointing out and holding that the conflicting testimony made the negligence of plaintiff’s intestate an issue of fact necessarily for a jury rather than the court; and that the court was not able to say the verdict was clearly contrary to the great weight of evidence, or the result of passion, prejudice or incapacity on the part of the jury to intelligently perform its duty. Citing upon this proposition Krouse v. Railway, 170 Mich. 438; Silverstone v. Assurance Corp., 187 Mich. 333; Mink v. Railway Co., 194 Mich. 324.

The record indicates a very full and fair trial with able counsel on both sides, before a jury whose intelligence and integrity are not questioned and who inspected the premises before passing upon the evidence. The trial judge, who shows familiarity with the locality and like the jury heard and saw the witnesses, after twice reviewing the case declined to disturb the verdict, or hold that it was against the great weight of evidence. After a careful examination of this record we find no occasion to substitute our judgment for that of the jury or trial judge. Plaintiff’s intestate left a wife and son three years of age. When killed his expectancy of life according to the mortality tables which were introduced in evidence was 36 years, that of his wife was more. The court very fully and correctly instructed the jury upon the measure of damages, confining recovery by the plaintiff-administrator, if entitled to a verdict at all, to such sum as the evidence showed deceased would have contributed for support of his widow, and child during his minority. The widow in testifying to her husband’s earnings gave them at one time as $100 a month, but on cross-examination replied that his income was from commissions on sales and all she knew about it was what he told her. Reversible error is urged on refusal of the court to strike out her testimony as to her husband’s earnings. In the light of her further testimony that her husband had contributed to the support of herself and child an average of $60 per month, and the expense of taking care of their child was about $15 per month, and the size of the verdict compared with a possible estimate on that basis under his and her life expectancy, we regard the ruling complained of as immaterial.

Complaint is made that the verdict was illegal because the jury apportioned the amount of the Verdict between mother and son, while the proportion'to which each was entitled had a general verdict been rendered would be a matter for distribution by the probate court under the so-called death act 3 Comp. Laws 1915, § 14577.

The basis of this assignment of error is as follows: When the jury reported an agreement and returned into court to render their verdict and in answer to the court’s inquiry the foreman stated they found for the plaintiff, the following questions were asked and answered :

“The Court: In what sum?
“The Foreman: For the boy, $1,500; for the widow, $1,000; total, $2,500.
“The Court: $2,500 against both defendants?
“The Foreman: Yes, sir.”

The verdict was then put into legal form as a verdict for the full amount in favor of the plaintiff against both defendants, concluding:

“And you assess the damages of the plaintiff on occasion of the premises at the sum of $2,500; so say you, Mr. Foreman?
“The Foreman: I do.
“The Court: And so say you all, gentlemen of the'jury?
“The Jury: Yes, your honor, we do.”

After which the verdict was entered by the clerk in regular form.

That the jury agreed to a verdict in favor of the plaintiff for $2,500 is made plain by the foreman’s first answer. The proposition as to how it should be divided was, as counsel suggest, outside the jury’s duty or authority. For the court or clerk to put the verdict announced by the foreman in proper form before taking it as a finality is the usual course. This was done after the court concisely inquired and was told their verdict was for $2,500 against both defendants. All the jury answered the interrogating announcement of their verdict as legally formulated in the affirmative. No request for a poll of the jury or objection to the course pursued was made by defendants’ counsel at that time. We see little force in the objection as now made.

No reversible error is found and the judgment will stand affirmed.

Bird, C. J., and Sharpe, Moore, Brooke, Fellows, Stone, and Kuhn, JJ., concurred.


text:
    SMITH v. HYNE.
    1. Master and Servant — Death — Negligence — Competency of Man in Charge of Sawmill.
    In an action for the death of plaintiff’s decedent in a sawmill accident, where the only testimony touching the competency of the man in charge was that hei was a competent and careful man, there was no issue on that question for the' jury.

      2. Same — Sufficiency of Crew in Charge of Sawmill.
    Evidence in support of plaintiff’s contention that the crew in charge of the sawmill was insufficient, held, insufficient to go to the jury.
    3. -Same — Safe Place to Work — Leaving Safe Place Contrary to Orders.
    Plaintiff’s contention that deceased was not furnished a safe place in which to work, held, not supported by the record, where the evidence shows that he was engaged as a setter in a safe place, but that unexpectedly and contrary to orders he left his position for that of tail sawyer and in attempting to return by crossing the carriage fell and was killed.

      4. Same — Workmen’s Compensation Act, Defenses Not Available Where Master Not Under.
    Where defendant employer had not come under the workmen’s compensation act, the common-law defenses of assumption of risk, negligence of fellow-servant, and contributory negligence of the injured employee were not available under 2 Comp. Laws 1915, § 5423, unless such contributory negligence was willful.
    5. Same — Evidence—Negligence—Contributory Negligence.
    In the absence of evidence of negligence on the part of the employer, the kind or degree of the employee’s negligence is immaterial.
    6. Same — Evidence—Sufficiency.
    In such action, evidence held, insufficient to establish actionable negligence on the part of the employer.
    Error to Livingston; Collins (Joseph H.), J.
    Submitted October 15, 1919.
    (Docket No. 47.)
    Decided December 22, 1919.
    Case by Elmer L. Smith, administrator of the estate of Arthur H. Smith, deceased, against Fred T. Hyne for the alleged negligent killing of plaintiff’s decedent. Judgment for plaintiff. Defendant brings error.
    Reversed, and no new trial ordered.

      W. P. Van Winkle & Son, for appellant.

      Louis E. Howlett, for appellee.
   Steere, J.

On March 25, 1918, Arthur H. Smith, plaintiff s intestate, was instantly killed by a circular saw in front of which he fell while working as a setter in a small sawmill operated by defendant’s employees in the township of Brighton, Livingston county. Deceased was a married man 59 years of age living in the village of Brighton, his occupation being varied. At times he worked at painting and carpentering and at times did various other kinds of work at odd jobs as he found employment. Defendant lived in the village of Brighton where he had been engaged for many years as a dealer in grain, produce, building material, etc., in partnership with his son. He owned and ran a large farm about four miles from the village, and with a nephew had for years owned a small sawmill located on his brother’s farm about a mile from the main buildings on his farm. This mill was in a rough frame building some 50 feet long and 24 feet wide, in an open field five or six rods back from an easterly and westerly highway. It was only operated occasionally, at such times as they might wish to saw out some lumber, posts or other materials for their own use. In some years it was not operated at all and in others considerable sawing was done. A barn had burned on defendant’s farm which he proposed to replace and preparatory to so doing had during the winter cut logs from a wood lot of his farm and hauled them to the mill to be sawed into timber and lumber for use in the construction of the bam.

Smith, the deceased, had done work for defendant at various times and for some days prior to the starting of this mill was working on defendant’s farm trimming trees and other odd jobs, among which was fixing some windows in the mill at the instance of defendant’s son, Erwin Hyne, who was in charge of preparing the mill for sawing and subsequently ran it as head sawyer. He was a man some 32 years old who had worked in and run this mill from time to time on previous occasions when it was in operation. He asked Smith if he had ever worked in a sawmill, to which he replied he had a good many years ago when a boy. He was told when the mill would start and on that day appeared with his dinner pail ready to work. Erwin Hyne in arranging his crew told Smith he wanted a setter and explained to him the duties of a setter in connection with the appliances to be used. Smith accepted the position, readily understood and efficiently performed his duties until the accident on March 25th.

The mill started sawing on March 21, 1918. It was a small, simple mill, operated by a crew of four men, consisting of Erwin Hyne as head sawyer, William Standlick as engineer, his brother, Charles Standlick, as tail sawyer, and Smith, the deceased, as setter. A traction engine furnished the power which was transmitted to the mechanism of the saw by a belt. The single circular saw was 50 inches in diameter, located in the east end of the mill, with the engine in the west end. The logs to be sawed were piled outside at the easterly end of the building which was open, allowing the carriage track to extend out some distance beyond. The carriage was located on an iron track at the north side of the saw. The track extended more than the length of the carriage beyond the east end of the building and into the building some 20 feet west of and beyond the saw. The carriage ran back and forth along the track on four wheels, its movements controlled by levers manipulated by the head sawyer, and could be run out of the east end of the building far enough to place logs on it as needed. As needed, a part of the crew would go out and skid a log on to the carriage by hand. This was generally done by the head and tail sawyers and setter, who would then resume their positions and proceed to saw the log, the saw being idle in the meantime while they rolled the log on the carriage, properly placed it upon the head-blocks and firmly set the dogs which held it in place. The carriage frame, 14 feet long and 4 wide, had a platform fastened to and a part of it, upon which the setter stood at an iron lever controlling a mechanism by which he set the log to the saw for each board or piece cut. While the sawing was going on the simple operation of this lever for each cut as signaled by the head sawyer was the sole duty of the setter. There were three iron standards on the south side of the carriage which stood up about three' feet high, one near each end and one in the center, in connection with which iron dogs were operated in fastening a log on the carriage. The engineer’s position and duties were at the engine in the west end of the building. Erwin Hyne, the head sawyer, stood on a stationary platform some four feet east and a 'little south of the saw, from where he operated the movements of the carriage back and forth with the lever. A small wheel called the divider was fastened to a roller 8 or 9 inches west of the saw, spreading the board being cut from the log. As the boards were sawed they were looked after by the tail sawyer who stood to the west and south of the saw where there were wooden rollers on a frame some lower than the carriage running to the west end of the building upon which the boards fell from the saw and along which they were moved away by the tail sawyer.

At the time Smith was killed an oak log 12 feet long and 12 or 14 inches in diameter had been placed upon the carriage and was being slabbed. The tail sawyer was just then taking a slab to the west end of the building. While the saw was passing through the log, cutting off a slab, Smith left his position on the platform as setter, got off the carriage at the west end, went around to the position of the tail sawyer, where he pushed a just released slab which had fallen on the rollers towards the west. The carriage was then starting back to its position for another cut and in attempting to get back to his platform on the carriage which was on the opposite side of the saw from where he then was he fell over upon the saw and was killed. The only eyewitnesses to the accident were the head and tail sawyers.

The negligence complained of by the plaintiff is that the operations were not under a competent and experienced man, sufficient help was not employed, there being no person to carry away the slabs and lumber, and the tail sawyer was required or allowed to leave his station, deceased was not furnished a safe place in which to work, was permitted to cross the path of the carriage to remove slabs “and return to position while the carriage was in motion,” and that “the head sawyer should have stopped the carriage when plaintiff’s intestate was found to be in the position of the tail sawyer and knew he was about to return to his position on the carriage.”

Defendant’s principal contention is that his request for a directed verdict should have been granted because. plaintiff’s evidence does not prima facie make out any of the acts of negligence charged in the declaration; that the undisputed testimony shows that the mill was operated in a careful manner by experienced and competent men; and that the evidence conclusively shows that Smith’s death resulted from his unanticipated, independent, negligent act in direct violation of instructions, and specific orders, for which defendant was in no manner responsible.

The operation of the mill was in charge of Erwin Hyne, a man 32 years of age, who had charge of fitting it out before it was started up and acted as head sawyer. He was an experienced man, familiar with the various parts and appliances of the mill, duties of the employees in their various positions, had served as head sawyer eight or ten seasons, and testified: “The mill has never run more than three times in 18 years when I have not been on the job.” Charles Stand-lick, the tail sawyer, testified that he had worked around sawmills quite considerable in other places and from the way Erwin operated the machine he “appeared to understand it and be careful and prudent. He operated it as good as anybody could operate a mill.” A witness of defendant named Seymour Kellogg, who testified to over 15 years’ experience in operating sawmills, testified he happened to be at the mill that spring the day before the accident, when Smith was the setter, and watched the sawing for perhaps two hours, that they were sawing all the time he was there, that the head sawyer controls the feed and Erwin used a slow speed, saying: “From my observation the first time I was there I would say Erwin appeared to be a competent and safe head sawyer. I know he was.” We find no other testimony in this r,ecord by any witness touching the competency of Erwin, the man under whom the mill was being operated.

Plaintiff produced three witnesses with experience in sawmills to show the crew was insufficient for proper and safe operation of this mill. Will Palmer-ton, who testified to 30 years’ experience in sawmills in various capacities, had seen this mill and thought it should have a crew of five, the shortage as he viewed it being the absence of a “slab rastler” to carry away the slabs, so that the tail sawyer, or “off bearer” as he expressed it, need not leave his position. He also offered the reflection that “in the proper operation of a mill there may be mills that have a thousand men and others that have only one or two.” On cross-examination he said:

“There is no reason that I know of why that mill could not have been operated with perfect safety with four men if they had run it slowly enough so that Mr. Standlick could have got the lumber and slab all out of the way. It is simply a question of how fast you operate it. Two men could go out there and run that mill or three men with perfect safety if they run it slow enough.”

Ralph Tubbs and Bailey Smith, called by plaintiff as experts, thought there should be one or more slab carriers at this mill because the tail sawyer should remain at his post, as otherwise a slab or other sawed piece might fly or be thrown or caught so as to do damage, a contingency which did not arise in this case. Both conceded that this mill could be run with a crew of four, if operated slow enough, with just as much safety as with more. There was in fact at this mill a fifth employee named Kennedy, caring for the lumber after it reached the west door, who assisted the tail sawyer when needed. Charles Standlick testified of this:

“I was able during that time to do that work and didn’t need any assistance in doing it. There wasn’t any room for anybody to assist me in there. Of course, as I said before, Mr. Kennedy helped me with some of the big heavy slabs after I got them to the door. There was no necessity for me to have another man out there. There couldn’t another man work there with me as tail sawyer. I never saw the mill operated with two men acting as tail sawyers in that kind of a mill.”

Defendant’s testimony not only showed by men of equal experience that four men for the positions designated was a full crew for this mill as ordinarily run, but it was further shown undisputed that Erwin ran it on slow speed, and that at a later time Kellogg was head sawyer and he ran it with a crew of four men faster than Erwin had done, while Standlick as tail sawyer readily did his work without causing any delays.

The claim that deceased was not furnished a safe place in which to work would seem to be on the theory that the place in which his duties required him to work while the mill was in operation included positions of both setter and tail sawyer, of which there is no proof, while the undisputed evidence is directly to the contrary. His duties were at the log carriage and, when the mill was sawing, his position was upon the platform of the carriage back of the log being sawed, which was between him and the saw. His regular work there was to set the log by the simple mechanism on the carriage — to set it over and adjust it to proper position for each cut before the log started through, or towards, the saw, after which he customarily had no work and no duty but to stand by the log on his platform and watch until the carriage returned to its original position, where it stopped until he made another set as directed by the head sawyer. No element of unsafety is shown in the place furnished him to work beyond those ordinarily appertaining to the duties of a setter in such a mill. An experienced witness of defendant testified that the work of a setter, which was easily and quickly learned, must be done before the carriage is started through the log; that his platform is not dangerous to ride upon if he stands where he belongs and holds the lever, but “danger comes when they begin to shift from place to place and travel around the mill.” The testimony is undisputed that Smith was fully instructed in this particular by Erwin, who cautioned him and emphasized the order with explanation on two or three occasions when he left his position, telling him not to do so any more. Charles Standlick testified: “I heard Erwin say, ‘Mr. Smith, I want you to stay on that carrier.’ * * * Erwin said that he wanted him to stay on the platform because it was dangerous for him to go back and forth.” William Standlick, the engineer, testified: “Erwin told Mr. Smith he wanted him to stay on the carriage. He told all of us to stay at our place.”

Of the two men who saw the accident, Charles Stand-lick was called as a witness for plaintiff and Erwin Hyne for defendant. Standlick stated he thought they had been running the mill about half an hour when it happened. That as he went out at the west end with a slab, Smith was in his position on the carriage which was moving west, and as he returned Smith was in his (the tail sawyer’s) place just putting a slab on the rollers which he rolled towards where witness stood. He thought the carriage had started back when he saw Smith “try to grab the carriage” with his left hand; that “he never touched it * * * he stepped on this roller and he slipped and the carriage was going back and the saw cut him right across the hip and took him over the saw.” Asked if he meant the roller at the end of the tramway, he answered:

“Yes, and he made a grab for the iron onto the carrier, and he missed that and it throwed him right to the saw; he went over the saw, and I hollered— I guess they all heard me — and my brother jumped up on the platform. By the time I got around to where Mr. Smith laid my brother had the engine pretty nearly stopped.”

On cross-examination he said:

“I thought from where I stood that 'as he started to grab for the carriage he stepped on the iron roller, but I could pot be positive whether it was the iron roller or a wooden roller. I was about 10 feet from Mr. Smith when he grabbed for the carriage and stepped onto the roller. * :1: * I wouldn’t think he got hold of it with his hand. I think he slipped on that roller and lost his balance, that is as near as I could tell. Then falling forward went onto the saw. As he stepped on the iron roller or some other part of the carrier or machinery there and reached for the carriage I wouldn’t think he was two feet from the saw, if he was that. The saw was directly in front of the way he jumped, as he jumped forward. I took it that the force he had himself given his body by stepping and reaching and the action of the carriage drew him directly onto the saw. That is the way it looked to me. He went so quickly it is pretty hard to tell.”

On redirect-examination he further said:

“He started to grab hold of the post with his left hand and went onto the saw back first. I couldn’t really tell whether he slipped with the roller over here on the carriage or this iron roller under motion. It was done so quickly, but I thought he was on the iron roller, and he might have been on the wooden roller. I couldn’t say. Having in mind the way he turned and the fact his back went against the saw I couldn’t tell which one he slipped on.”

Of this accident Erwin Hyne testified:

“When Mr. Smith went around to the position of tail sawyer on that day, he got off the west end of the carriage and walked around while the saw was passing through the log, so that at the time it had got through he was around there. He took hold of the slab and as soon as the slab dropped off I started my carriage back. He started with the slab the other way. He moved the slab on these rollers from the east end of the saw where it dropped to the west end of this set of rollers and he was going that way, and the carriage started to go back. He moved this slab on the rollers at least eight feet. He was going that way and the carriage was going this way. I was watching my saw. My saw will rub a little bit on a stick and once in a while a little splinter fly, I was watching out looking right at the saw, and I saw Smith grabbing for the dog on the first head block to the west end and he stepped up on the iron roller. He did not catch the head block. It was too far back that way to the east, but stepped on that iron roller and with his quick motion lost his balance, swung around this way as his foot would throw him naturally over backwards, the saw caught his clothing, he flopped over in the saw as quick as that. The saw traveled around 450 to 500 revolutions a minute. If the saw was running 500 revolutions a minute it was 1/1000 part of a minute he was in passing over that saw to the other side. The head block and dog which he reached for was near the saw because it was just out of his reach. It cut his clothes in the small of the back and he was whirled over and struck in a sitting position within two feet of me. I had reversed my carriage the minute I saw him making the jump. My carriage was stopped within three feet. A carriage moving with a log is heavy. I don’t believe any naan could stop one quicker. I stopped it as quickly as I could. At the time he grabbed for this standard on this carriage the east end of the carriage was about 14 feet east of the saw because the first head block was at the west side of the saw, or a little bit beyond, but it was just out of his reach. * * * The last time that I saw him before that he was pushing the slab on these rollers.”

The undisputed testimony shows that Smith had, in violation of orders and while the head sawyer was occupied in controlling the returning carriage preparatory for another cut from the log, left his station and the appliance to which his duties related, passing by a safe way around the saw to a place and for a purpose out of the range and line of his employment; that when the cut was finished and the carriage started east to return past the saw for another cut he had started the other way (to the west) with the slab which had just been cut. He was then in a safe place going away from the saw. His next duty in the line of his employment was to make a set for the next cut, after the carriage had cleared the log 12 feet long, to the east of the saw and stopped. It would have taken him but the fraction of a minute to have walked that distance, and the first indication of his intent to do otherwise was his unsuccessful attempt to catch hold of the west standard, or dog of the head block on the carriage approaching the saw, on the opposite side from him for the indicated purpose of resuming his position on the carriage at the further side of the log which was also on the further side of the saw from him. In this attempt he stepped on a roller, which he knew was there, lost his balance and fell against the saw with the sad result related. Standlick, plaintiff’s witness, estimated that he was less than, two feet from the saw directly in front of him when he stepped on the roller, reaching for the carriage, and lost his balance. Hyne said the iron roller was nine inches from the saw and estimated that “he must have been within two feet of the saw when he reached.”

The case was submitted to the jury, which rendered a verdict for plaintiff in the sum of $1,990. The court charged the jury upon the circumstances of the accident as follows:

“And if you should find in this case that plaintiff’s intestate was instructed to remain, by defendant’s agents, in his place of duty on the platform attached to the carrier, being the setter’s place' of duty as appears from the evidence, and you should further find that he left that place and went to the place of tail sawyer, and while at the place of tail sawyer, in attempting to return to his place of duty while two feet from the saw he placed his foot upon an iron roller nine inches from the saw which he was facing, and tried to climb on the carrier then in motion and over a log thereon, he would as a matter of law, be guilty of wilful negligence, and should you find from the evidence that he did not follow his instructions to remain at his place of duty and did all of these other things I have mentioned at the time and place in question, and you should further find that such actions and conduct on the part of plaintiff’s, intestate was the cause of his death, then your verdict should be no cause of action.”

If this instruction is a correct statement of the law in the case a verdict should have been directed for defendant as the record discloses all the contingent facts stated in the instruction established by undisputed testimony, not only that produced by defendant but in most particulars by the testimony of plaintiff’s witness, Charles Standlick.

Defendant not having elected to come under the workmen’s compensation act, the common law defenses of assumption of risk, negligence of a fellow-servant and negligence of the injured employee, “unless and except it should appear such negligence was wilful,” were not available to him (2 Comp. Laws 1915, § 5423). The trial court in submitting the question of wilful negligence instructed the jury as to such defense that the burden of proof was upon defendant to show Smith was guilty of willful negligence, and later, that if defendant or his employees were guilty •of any of the acts of negligence charged in plaintiff’s declaration which caused or contributed to the accident the latter was entitled to recover “even though you also find that the deceased himself failed to exercise due care.”

Defendant contends with some force that the last instruction as given without qualification, and later in the charge than the instruction as to willful negligence, entirely eliminated that defense, as to which the court also erroneously put the burden of proof upon the defense against the settled rule of evidence in this State that in common-law, ex delictu, sections it is incumbent on the. plaintiff to prove freedom from negligence, of any degree, causing or contributing to the accident, which is not changed by the law excusing him from all negligence not willful.

But back of those, and other questions argued, is the basic proposition that the kind or degree of the employee’s negligence is of little moment in the absence of evidence of negligence on the part of defendant, as pointed out in Lydman v. DeHaas, 185 Mich. 128. In that important particular we are of the opinion plaintiff has failed to sustain the charges of negligence found in his declaration. The essential facts are practically undisputed. Amongst other evidence urged as raising an issue of fact for the jury, is that defendant’s negligence is shown by the testimony of Pahnerton, Tubbs, and Smith, who testified that in their opinion proper and prudent operation of a sawmill required the head sawyer to stop his carriage until the setter had returned to his place of duty or reached a place of safety. Smith was certainly in a place of perfect safety and not needed at his place of duty until the carriage was back east of the saw and stopped for a re-set of the log. He was headed and moving away from the saw when the head sawyer started the carriage back for a short distance to where it would stop; there was nothing to suggest the possibility of Smith’s putting himself in a place of danger. These witnesses, and all other mill men who testified in the case, said that in their experience they never knew any person in a mill to attempt to catch a carriage moving towards the saw, and cross over it to the setter’s position. Asked if he ever saw such a thing Palmerton said, “No,” and that in his judgment no sensible man would take the chance. Tubbs said, “I never- saw any one attempt to do that in 35 years. A man attempting to do that would take great chances.”' Smith said he had never seen it done while the saw was in motion, and he did not “think any prudent man would attempt such a feat.” In view of such unanimous testimony by men of long experience it cannot be said under the circumstances shown in this case that it was negligence for the head sawyer not to anticipate it.

As was said by Justice Moore in Munn v. Telephone Co., 206 Mich. 201: The testimony “does not disclose actionable negligence on the part of defendant, but it does disclose an accident that nobody could or did anticipate.” A verdict should have been directed for defendant.

The case is reversed without a new trial, with costs to defendant.

Bird, C. J., and Sharpe, Moore, Brooke, Fellows, Stone, and Kuhn, JJ., concurred.