text:
    BROWN v. BRYANT.
    1. Negligence — Presumptions—Burden of Proof.
    The mere fact that an injury has resulted from certain conduct does not establish negligence.
    2. Same — Jury Question — Directing Verdict.
    Although the facts in a personal injury case may not be in dispute, if different minds may honestly arrive at different conclusions from them, the question of negligence is for the jury
    3. Same — Highways and Streets — Sidewalks—Res Ipsa Loquitur.
    That plaintiff was injured while passing along the street, by the falling of falsework and materials from a building in process of construction, that the employés of defendants were instructed to keep materials which were being hoisted, away from the walls, that the fall was caused by improper handling of certain materials which caught in the falsework, tearing it loose and causing it to fall upon plaintiff, raised a presumption of negligence for which the jury might hold defendants liable.
    4. Pleading — Variance—Declaration.
    It was a material variance from the declaration and claim of plaintiff who proceeded on the theory that he was injured by the fall of materials in the street, if he was, in fact, injured in an alley opening on such street, in use by defendants for building purposes as the defendants claimed; and plaintiff was improperly permitted to recover on the theory that he was in the alley.
    5. Evidence -Opinion Evidence — Competency.
    A witness should have been permitted to testify that persons to whom he had at different times called from the fifth and sixth stories of a building heard and understood him where it was in issue whether plaintiff heard him give a warning from such plaoe.
    Error to Wayne; Murfin, J.
    Submitted April 4, 1911.
    (Docket No. 1.)
    Decided June 2, 1911
    Case by Charles Brown against John A. Bryant and Ward A. Detwiler, copartners, for personal injuries. Judgment for plaintiff. Defendants bring error.
    Reversed.
    Clark, Lockwood & Bryant, for appellants.

      Samuel G. Thompson and Cullen, Casgrain & Hanley, for appellee.
   Ostrander, C. J.

The defendants, who were building contractors, erected in the year 1909, at the corner of Gratiot avenue and Brush street, in the city of Detroit, a building of steel and concrete construction, eight stories high. On the 29th day of September, 1909, work was being done upon the building upon the seventh and eighth floors. At the rear of the building is an alley, and in the alley and in Brush street adjacent to the mouth of the alley, building material was placed. The hoisting of material to the various floors of the building was done by machinery, there being a steam engine stationed in the alley which supplied the power, and material was sent up on the outside of the building. On the Brush street side of the building, parallel with the easterly front, and about 14 feet distant from the building, a tight board fence had been erected, six feet high, and outside of this fence a temporary board walk was laid for the use of pedestrians. This fence ended a few feet beyond the northerly line of the alley, and the temporary board walk ended at the south end of the fence. The plaintiff passed from Gratiot avenue on Brush street along the temporary board walk, and at the end of it, and either in the alley itself or in the street opposite the mouth of the alley, he was struck by some material which fell from one of the upper floors of the building. Ascribing his injury to the negligent conduct of the defendants, the plaintiff brought suit against the contractors to recover his damages, and upon the trial the jury returned a verdict in his favor and upon this verdict a judgment was entered. It is claimed by the defendants that various errors occurred upon the trial which require a reversal of the judgment and a new trial. The errors assigned are considered, so far as seems to be required, in the order in which they are presented in the brief for appellants.

It is said that the court instructed the jury that the defendants as matter of law were guilty of negligence, when the question should properly have been submitted to the jury. The particular instruction complained about is here set out:

“The fact is undisputed in this case, gentlemen of the jury, that while being elevated from the ground to the seventh or eighth floor of this building, certain material to be used in the construction of that building that that material loosened and fell. That fact undisputed in this case, as I say, gentlemen of the jury, raises a presumption of negligence, because, if something had not gone wrong, that accident would not have happened. Now that presumption, gentlemen of the jury, may be rebutted by proper proof, but there has been no proof introduced in this case, gentlemen of the jury, to rebut that presumption, and therefore you are at liberty, gentlemen of the jury, under the undisputed facts in this case, because of the falling of this material, to infer that these defendants were in the first instance negligent at that time.”

Undoubtedly it is the rule that in cases of this character negligence must be proved, and to permit a recovery the negligence proved must be the negligence charged in the declaration. It is also the general 'rule that the mere fact that an injury has resulted from certain conduct does not establish the further fact that the conduct was negligent, and we may add a third rule, stated by counsel, which is that although the facts concerning the conduct complained about are not in dispute, if different minds may honestly draw different conclusions respecting them, the question whether there was negligence is still a question for the jury.

The testimony in this case discloses something more than that the plaintiff was injured, and something beyond the fact that he was injured by timbers falling from the building. Certain falsework was in position. The hoisting of material from the ground to the places where it was needed was a means or method used by the defendants in the construction of the building. It must be assumed that ordinarily the tearing loose of portions of the falsework was not an accompaniment of the hoisting of material; that it was not intended; and that, if it took place, it was because there was some fault or mismanagement either in the manner in which the falsework was constructed, or in the manner in which the hoisting was carried on. The testimony in this case goes further. It tends to prove that it was the duty of certain employes of the defendants to keep materials which were being hoisted away from the openings in the building, and away from the walls, and, when the material reached a proper elevation, to pull or swing it into the building, and that the particular material which was being hoisted was improperly handled in this respect by the employés whose duty it was to handle it, with the result that, while it was still ascending under power from the steam engine, it caught and tore loose some of the falsework, which, with the material being hoisted, fell to the ground. No testimony was introduced tending to prove that the hoisting upon this occasion was properly done. The charge of the court must be considered in the light of the testimony, and, so considered, may be sustained.

The testimony for the plaintiff tended to prove that, when he was struck by the falling material, he was in Brush street, and the court said to the jury that if they should find that he was struck while he was in Brush street, and not in the alley, he was entitled to recover. Plaintiff testified:

“ I turned to the left when I came to the alley, and was going toward the middle of Brush street. I was headed that way when I was struck. I was headed off to the left. * * * At the corner of the alley, I was going toward the middle of Brush street.”

The testimony for the defendants, however, tended to prove that plaintiff walked into the alley, which was open in the daytime, or during a part of the daytime, to permit of materials being drawn in there. Upon this subject, the jury was instructed that, if the plaintiff was struck while he was in the alley, the case presented an additional matter for consideration; that the defendants had a right to erect this building and to make the use of the alley which they did make; and that the plaintiff had a right also to be in the alley. Continuing, he said:

But, gentlemen of the jury, as he came toward the alley, if he saw this building operation going on, if he heard the engine, if he saw this material going up, and proceeding to walk into it heedlessly and carelessly, obviously he would then be guilty of such negligence on his part as would preclude his recovery. If, however, gentlemen, this did not occur to him, and he walked into that alley unconscions of the building, and nobody warned him that this material was being hoisted, nobody warned him that the place was dangerous, or, if they assumed to warn him, did not warn him properly, so that he received no warning, and no proper precautions were taken to give him a warning, then and in that case, he was not guilty of contributory negligence and would be entitled to recover, even though this accident happened in the alley as claimed by the defendants. In other words, gentlemen of the jury, if he was warned to stay out of there and neglected their warning, he cannot now recover. If, however, they assumed to warn him and called to him, and he did not hear it, and it was not done in a way that he should have heard it, he would be entitled to recover. This, gentlemen, presents peculiar disputed facts for your consideration. There has been some testimony—
Judge Lockwood: You do not mean to charge this jury that he is entitled to recover if he saw or had notice of what was going on there ?
The Court: Not at all, I thought I had covered that. It is perfectly obvious that, if this man when he came into the alley saw what was going on, he needed no warning. A warning is unnecessary. In other words, if you come to a place of that description and voluntarily walk under the elevating of some material, I do not think you can afterwards be heard to complain because it falls upon you. I thought I had covered that part of the case before.”

It is said of this part of the charge that the plaintiff’s case as made by his declaration rests upon the fact that the plaintiff was struck while he was in Brush street; that there is no claim made either in the declaration or in plaintiff’s proofs that he was in the alley at the time he was injured; that there was therefore no ground for submitting to the jury the question of the right to recover if he was in the alley. The court was requested to so instruct the jury.

Among the duties of defendants and the breaches thereof alleged in the declaration are the duty to close the alley, to erect and maintain proper signs and signboards to warn the public that the alley was a dangerous place, to forbid and warn persons of the danger of entering or passing near the alley, to maintain a lookout to warn persons of the danger. It is averred that, when plaintiff left the temporary walk, he turned to the right, or west, to reach the regular sidewalk lying to the south of the alley. This, of course, would carry him in the direction of the alley. It is not averred, and the testimony for plaintiff, all of it, negatived the idea, that he entered the alley. It is averred that, when he was struck, plaintiff was “then and there lawfully upon said street and alley.” It is evident that the case of a pedestrian traveling upon the street, as plaintiff claimed he was doing, and the case of a person entering the alley and proceeding therein for a considerable distance, as the witnesses for defendants testified the plaintiff did, are, in view of the known surroundings, very different cases in law. This is indicated in the charge of the court. We are not required to consider whether the original declaration sufficiently notified defendants that plaintiff might prove that he was in the alley when he was injured, because upon the trial, at the close of plaintiff’s case, his counsel said to the court:

“ I find there is a slight variance between the declaration and the -proofs. * * * It states that the plaintiff was walking down Brush street on this narrow sidewalk, and, when he reached the end of it, he turned to the right or west. The proofs show that he turned to the left or east. It is not a very material variance.
The Court: If you desire to amend, I will permit you to do so.
‘‘ Mr. Hanley: Very well.
“Judge Lockwood (counsel for defendants): The language is amended to read as follows: In the next to the last paragraph, on page 3, ‘ When reaching the end of said temporary sidewalk which terminated at a point coincident with the line of said alley, he turned to the left or east.’
“Mr. Hanley: Yes.”

After this amendment was made, no one could be in doubt about the claim of the plaintiff. While no amendment was made to the declaration striking therefrom the allegations of defendants’ duties with respect to barricading the alley, preventing persons from entering the same, warning such persons, keeping a lookout to warn them, etc., there was a clear election to rely upon conduct of defendants which made it unsafe for pedestrians in the street and to stand upon the conduct of plaintiff as a pedestrian in the street. It was the case so stated that the plea of the defendants denied, and this case would be utterly disproved when it was shown that instead of being in the street plaintiff had wandered or traveled into the alley and under the material which was being hoisted. This reasoning is not answered by saying that whether plaintiff was in the alley or the street the negligence of defendants which is relied upon is the same. The relations of the parties and the relative and mutual duties owed by each to the other were quite different if plaintiff occupied one position rather than the other. His freedom from negligence in the one case would be made out by testimony wholly insufficient to excuse his conduct in the other case. We are of opinion that it was error to submit to the jury the question of defendants’ responsibility if plaintiff was in the alley when he was injured. The principle applied is not different from the one stated and applied in Batterson v. Railway Co., 49 Mich. 184 (13 N. W. 508).

Testimony for defendants tended to prove that, when plaintiff entered the alley, employes of defendants called to him in warning. Those calling were on the fifth and sixth floors of the building. Whether plaintiff heard them was a question in issue. The testimony of one of these employés (Sterling) to the effect that he was in the habit of calling down to people, to the engineer, and to the man tending line at the hoist, and that they heard and understood him was stricken out on motion of plaintiff’s counsel. Clearly this was testimony relating to a fact within the knowledge of the witness, and was competent and material.

Other alleged errors discussed in the brief are not likely to arise upon a new trial, and are not considered.

The judgment is reversed, and a, new trial granted.

Bird, Hooker, Moore, and McAlvay, JJ., concurred.


source: Caselaw Access Project

author: Moore, J.

license: Public Domain

text:
    WAWRZYNIAK v. TOBICEJ.
    Partnership — Parties—N on joinder.
    Whether plaintiff and his father were in partnership and made a settlement of the matters in dispute, by agreement of the father, were, under disputed evidence, for the jury.
    Error to Wayne; Mandell, J.
    Submitted April 4, 1911.
    (Docket No. 7.)
    Decided June 2, 1911.
    Assumpsit in justice’s court by Joseph Wawrzyniak against Joseph Tobicej and Bloisey Niezela, copartners. From a judgment for plaintiff defendants appealed to the circuit court. Judgment for defendants. Plaintiff brings error.
    Affirmed.

      James B. Neill, for appellant.

      Philip A. McHugh and William Henry Gallagher, for appellees.
   Moore, J.

Plaintiff claims that he, Joseph Wawrzyniak, purchased the stock in trade of a bakery in the city of Detroit from August Natzmann, and later secured a lease from the owners of the premises, Frank and Valentine Natzmann, parents of August Natzmann; that on the 16th day of March, A. D. 1907, plaintiff sold the bakery to the defendants for $489.48, receiving $280 in cash, the balance to be paid within a short time; that he made several demands on defendants for the payment of the balance due, and on their neglect to remit he brought suit in the justice’s court for the city of Detroit. The defendants appealed to the Wayne circuit court, where the trial resulted in a verdict for the defendants of no cause of action.

It is the theory of the defendants that the plaintiff and his father were copartners; that, at the time plaintiff sold the bakery to the defendants, plaintiff had done considerable damage to the bakery and the building, and that the plaintiff and his father were jointly liable as copartners to Frank and Valentine Natzmann for this damage; that the Natzmanns had instituted a suit against plaintiff and his father in the justice’s court for the city of Detroit to recover damages from the plaintiff and his father; that, at the time Constable Fox served the summons on plaintiff’s father in this action, said Constable Fox, together with Frank and Valentine Natzmann, compromised and settled this suit for damages for $200; and that Martin Wawrzyniak gave a written order to Frank and Valentine Natzmann on the two defendents for the payment of $200, which was paid. The case was submitted to the jury, which returned a verdict for defendants. A motion was made for a new trial, and the motion was overruled. The case is brought here by writ of error. The judge was not requested to file his reasons for overruling the motion for a new trial, and he did not file any reasons. The attorneys say no exceptions were taken during the progress of the trial, and that the case is not in a condition to be reviewed. They also say it was properly submitted to the jury upon the merits. We agree with them as to the last proposition, and find it unnecessary to pass upon the other.

Judgment is affirmed.

Bird and Hooker, JJ., concurred with Moore, J. Ostrander, C. J., and McAlvay, J., concurred in the result.


text:
    ARNOLD v. HUBER MANUFACTURING CO.
    Process —Service on Agent oe Corporations — Foreign Corporations — Statutes.
    Service of process was legally made upon a foreign corporation authorized to do business in. Michigan and having an agent appointed within the State for service of process, by serving the same on an expert machinist employed by such foreign corporation, engaged in its service in a county where its State agent did not reside. 3 Comp. Laws, § 10468, Act No. 3, Special Session 1907.

    Certiorari to Allegan; Padgham, J.
    Submitted April 16, 1911.
    (Docket No. 26.)
    Decided June 2, 1911.
    Action at law by Guy Arnold against the Huber Manufacturing Company. Defendant moved to quash the service of process, and the motion was overruled. Defendant brings certiorari.
    Affirmed.

      J. A. Boice {Gardner & Hood and Tuttle, McArthur & Dunnebacke, of counsel), for appellant.

      Wilkes, Hoffman & Stone, for appellee.

      As to who may he served in suit against foreign corporation, see notes in 23 L. R. A. 490; 4 L. R. A. (N. S.) 272, 460.

   Moore, J.

This proceeding is certiorari to review the action of the circuit judge in refusing a motion to quash the service on defendant company. The defendant is a foreign corporation duly authorized to do business in this State. It has a branch house in Lansing, Mich., in charge of Calvin H. Shoemaker. In August, 1909, defendant caused to be filed with the secretary of State evidence of the appointment of Calvin H. Shoemaker, named as C. H. Shoemaker, as an agent in Michigan to accept service of process on behalf of defendant, and that said Shoemaker ever since has been, and is yet, such agent. In July, 1910, Mr. Shoemaker employed Horace Williams, who was an expert machinist, to do certain work for the company. On or about the 18th day of August, 1910, Mr. Shoemaker received a letter from J. H. Reynolds, who lived at or near Allegan, Mich'., saying that he had a 14-horse-power engine, and that he wished to make a deal for an 18 or 20-horse-power engine, and inquiring what kind of a deal could be made. Mr. Williams was given this letter, and sent to Allegan to investigate. While there, process was served upon him. Defendant by its attorney appeared specially, and moved to quash the service. An issue was framed as follows:

“Was H. A. Williams, the person upon whom the summons filed in this cause was served, such an agent of the defendant, or so connected with its business, on August 19, 1910, as that service could be made on him and bind the defendant under the laws of this State?”

On said hearing, it appeared by the certificate of the secretary of State of the State of Michigan that said defendant was duly and legally authorized to do business in this State since the 19th day of March, 1902, and also that its principal office and place of business was at Lansing, Mich., and O. H. Shoemaker was its agent and in charge of its business at Lansing, and on such hearing Mr. Williams and Mr. Shoemaker gave testimony. The circuit judge found “that the evidence is sufficient to show that the said H. A. Williams was at the time in question acting as the agent of said defendant, and that the service upon him was sufficient to bind the defendant.”

The following from the brief of counsel will show defendant’s contention:

“ It is our contention that * * * the word ‘agent,’ as used in this section, must be some one who has some authority, discretion, or control over some part of the business of the company; that Mr. Williams had no such authority, discretion, or control; that he was a mere employe and not such an agent as service could be made upon. We contend that there is no evidence which authorized the finding that Mr. Williams was such an agent at the time of the service upon him. We contend that the court erred in ruling and finding that there was such evidence, and in overruling defendant’s motion to quash the service in this case, and in failing to grant defendant’s motion.
“The evidence shows that Mr. Williams was a mere employe, day by day, working under the immediate direction and control of Mr. Shoemaker, who is the sole agent in the State of Michigan for the Huber Manufacturing Company, and the only agent in sole charge of the sole and only business office maintained by the Huber Manufacturing Company within the State of Michigan.”

It is apparent that the first question to be decided is whether there is testimony upon which to base the finding that Mr. Williams was agent of defendant company. See Vorheis v. Benefit Society, 86 Mich. 31 (48 N. W. 1087). Mr. Williams and Mr. Shoemaker were sworn and testified at great length as to the nature and scope of the employment of the former. Complaint is made that Mr. Williams and Mr. Shoemaker were not allowed to answer whether Mr. Williams was an agent of the company. As they were allowed to state in detail what he did, and what he was authorized to do, we think the complaint was not well founded.

It would profit no one to recite the testimony, whicn was very voluminous. We shall content ourselves with saying that it was sufficient to justify the court in its findings. There are two provisions of the statute under which it is claimed service could lawfully be made on any agent of the defendant corporation, who was at the time in Allegan county, viz., section 10468, 3 Comp. Laws, and section 10 of Act 3, Special Session of 1907. The section cited from the compiled laws provides that service of summons may be made “ upon any officer or agent of the corporation.” It was held in Grand Trunk R. Co. v. Wayne Circuit Judge, 106 Mich. 248 (64 N. W. 17), that this section applies only to domestic corporations. As to the above quoted words from section 10468, the language of section 10, Act 3, supra, is identical. Section 10, besides providing for the appointing of an agent to accept service of process, and for service to be made upon the secretary of State, contains the further provision that “service of process may also be made on any officer or agent of such corporation.” That the provisions of section 10, above referred to, confer the right to make service which would be good, seems to be settled by Showen v. J. L. Owens Co., 158 Mich. 321 (122 N. W. 640, 133 Am. St. Rep. 376).

Judgment is affirmed.

Ostrander, C. J., and Bird, Hooker, and McAlvay, JJ., concurred.


author: McAlvay, J.

text:
    MYERS v. ROGER J. SULLIVAN CO.
    1. Contracts — Breach —Employment —Master and Servant-Discharge oe Servant.
    The discharge of an employ é that defendant engaged for a definite term was not justified by the fact that during his employment by defendant he organized a corporation to engage in a competing business after the expiration of his contract, and became an officer of the new company, since he was entitled to prepare for and secure employment after his contract should end.
    2. Same.
    And plaintiff should have been permitted to recover the amount accruing to him under a clause in his contract providing for a percentage of the net profits of the defendant’s business, in addition to the specified salary.

      Error to Wayne; Murfin, J.
    Submitted April 6, 1911.
    (Docket No. 27.)

    Decided June 2, 1911.
    Assumpsit by Alfred J. Myers against the Roger J. Sullivan Company on a contract of employment. A judgment for defendant on a verdict directed by the court is reviewed by plaintiff on writ of error.
    Reversed.

      Lucking, Emmons & Helfman, for appellant.

      Edwin Henderson, for appellee.

       As to remedy of servant wrongfully discharged, by action for damages for breach of contract, see note in 6 L. R. A. (N. S.) 50.
      As to right of wrongfully discharged servant to recover wages for contract period subsequent to discharge, see notes in 5 L. R. A. (N. S.) 439; 28 L. R. A. (N. S.) 577.

   McAlvay, J.

A judgment on a verdict, instructed in favor of defendant by the court, was entered in this suit, brought by plaintiff to recover a balance claimed to be due him under a written agreement between the parties. Defendant offered no evidence in the case.

The contract reads as follows:

“Agreement made this 7th day of November, 1907, between the Roger J. Sullivan Company, of Detroit, Michigan, of the first part, and Alfred J. Myers, of the same place, of the second part, witnesseth: That in consideration of the faithful performance by the second party of his agreements hereinafter set forth, said first party agrees to and does hereby employ said second party as ‘ Manager and Buyer’ of its business conducted at Nos. 118-115 Michigan avenue, for the period of two years from January first, 1908, at a salary of three thousand ($3,000.00) dollars per annum, payable weekly, and the further compensation of eight (8) per cent, of the net profits of the business, such net profits to be ascertained and said commission paid at the expiration of every six months during the life of this agreement, when an inventory shall be taken and the net profits ascertained, and for the purposes of calculating such net profits the salaries of the officers of the company are to be figured as an expense to the amount only as the same are fixed at present.
“In consideration of the premises, second party accepts of said employment upon the terms aforesaid and agrees, during said period, to devote his undivided time and attention and give his best service in the interests of said first party and its business aforesaid, and to do all that lies in his power to increase the volume of first party’s business and further its interests.
“He further agrees to freely consult with the president and treasurer of the first party in relation to said business, its progress and development, and keep them informed, as far as practicable, of the daily transactions thereof; he shall hire and discharge all the help required to properly conduct said business, and that in performance of his duties, he will attend to the advertising and himself write the advertisements.
“It being mutually understood between the parties hereto that while such second party is employed as manager of said business such management shall be under the general supervision and direction of the board of directors of said company, and that all checks, notes and money obligations of the business are to be signed only by the treasurer of the first party.
“ Executed in duplicate at the city of Detroit, the day and year first above written,
“Bogee J. Sullivan Co.,
“Per Wm. Kelly, Pres. “Edward A. Stricker, Secretary.
“Alfred J. Myers
“ In the presence of:
“ Lena M. Bivard,
“ Maude A. Manne.”

Plaintiff entered upon his service under the contract according to its terms as manager and buyer of defendant company, and continued in such employment until May 8, 1909, when he was discharged for a claimed breach of the contract. He brought suit at the expiration of the term for a balance claimed to be due for salary, including a percentage of profits under the contract.

The claimed breach of the contract was that plaintiff during its continuance had become interested in a competitive business. The proposed business was of the same kind in which defendant was engaged. The record shows that plaintiff was making arrangements to go into business when his contract ended; that steps were taken and a corporation was organized of which he was an officer, and arrangements had been entered into to have plans prepared for a new store to be built for the purpose of carrying on such business. The new corporation was not carrying on business, and had not intended to do so before this contract expired. Plaintiff’s uncontradicted testimony shows that he told defendant of his plans, and satisfaction was expressed with his services; and also that prior to his discharge plaintiff had not bought or sold merchandise or made contracts for the purchase and sale thereof in competition with defendant, or been actually engaged in a competing business or deprived defendant of trade; that he had devoted all his services and attention to defendant’s business during business hours; that defendant’s business was successful. It increased about one-third in volume and was profitable under plaintiff’s management. No damages to defendant were shown. There was no friction between the parties or objection by defendant until the date of the discharge. The record shows that after his discharge plaintiff sought new employment, but was unable to find it; that then the completion of the store for the use of the corporation which had been organized was hurried, and the business started October 1, 1909. Plaintiff was paid his fixed salary to the date of his discharge. He was not paid his share of the profits provided by the contract from January 1, 1909, to May 8, 1909. Plaintiff urges that the judgment should be reversed on account of errors committed by the court in directing a verdict and charging the jury that as a matter of law plaintiff on the record could not recover.

We think that the mere planning by an employe during his contract of employment to engage after the expiration thereof in a competing business does not justify his discharge as a matter of law. Nichol v. Martyn, 2 Espinasse R. 732; Biest v. Shoe Co., 97 Mo. App. 137 (70 S. W. 1081); Hermann v. Littlefield, 109 Cal. 430 (42 Pac. 443); Shoemaker v. Acker, 116 Cal. 239 (48 Pac. 62). The cases cited may be claimed not to be exactly in point. We think that in principle they are applicable. Nichol v. Martyn, supra, where a salesman during the term of his employment planned to engage in a like business, although an old case, does not appear to have been questioned, and upon the facts appears to be quite similar to the instant case. The complaint made by defendant is that by connecting himself with this corporation plaintiff put himself in an attitude of hostility towards defendant, and that of itself was sufficient cause for discharge. The facts are that the concern had not as yet entered into business, and did not propose to until the expiration of plaintiff’s term of hiring. It amounted on the part of plaintiff to a mere planning for employment. One is entitled to seek other employment before he is on the street. The contrary would be a monstrous doctrine. A servant may not, while engaged in the service of his master—

Injure his trade, or undermine his business; but every one has a right, if he can, to better his situation in the world, and if he does . it by means not contrary to law, though the master may be eventually injured, it is damnum absque injuria.” Nichol v. Martyn, supra.

It is claimed that the case of Dieringer v. Meyer, 42 Wis. 311 (34 Am. Rep. 415), is squarely against the plaintiff. In that case there was an active interest in a competing business already established. All the cases agree to such doctrine, but no case holds that a mere planning to engage in a competing business not yet in operation is prohibited by a contract such as the one in this case. The plaintiff’s case as made is accepted as true. The court was in error in directing a verdict. The case should have been submitted to the jury.

The case must also be reversed upon another ground. There was no dispute but that the contract of percentage for the current year’s profits up to the date of discharge had not been complied with. Plaintiff was in any event entitled to recover such percentage.

The judgment of the circuit court is reversed, and a new trial granted.

Ostrander, 0. J., and Bird, Hooker, and Moore, JJ., concurred.


text:
    HAYES v. McARA.
    Brokers — Homestead — Contracts — Statutes — Husband and Wire — Constitutional Law — Deeds.
    A broker is entitled to recover his commission for finding a purchaser of defendant’s homestead, under a contract not signed by the wife of defendant, stipulating that the owner should receive $6,000, part in cash, and the remainder in a mortgage of the property, the broker to have all that he could secure above the price named, in payment of his services ; and, since it conveyed no interest in the land, the provisions of the Constitution of 1909, Art. 14, § 2, requiring the wife’s signature to any conveyance of the homestead, do not render the instrument invalid.

    Error to Genesee; Wisner, J.
    Submitted April 17,1911.
    (Docket No. 84.)
    Decided June 2, 1911.
    Assumpsit by Stephen Y. R. Hayes against David E. McAra on a broker’s contract. A judgment for defendant on a verdict directed by the court is reviewed by plaintiff on writ of error.
    Reversed.

      Charles E. Ward, for appellant.

      Brennan, Cook & Gundry, for appellee.

       Negligence, fraud, or default of principal, or defective title as affecting real estate broker’s commissions, see note in 13 L. R. A. 593.

   Moore, J.

A writing was made reading:

“Davison, November 3d, 1909.
“ S. V. R. Hates,
“Grand Rapids, Mich.
“I hereby give you the exclusive agency, and authorize you to sell my farm in Genesee county, Michigan, described as follows: The south half of the southeast quarter of section (7) township (7) north, range (8) east, for the sum of six thousand dollars ($6,000), net to me, on the following terms: $300 cash at time of sale, and $3,400 when possession is given, balance on mortgage, due in four years at 6%, privilege to pay $100 or more on any interest day.
“I agree that you shall add to my price whatsoever amount you may see fit, for your service in making the sale, and deduct such amount from the purchase money, and turn over to me the balance, and I will not make a lower price on farm than you do during the life of this agency, nor will I put any obstacles in your way, in your efforts to make sale of farm. I agree to enter into a contract of sale with any person you may sell the farm to, at the time sale is made, and when such purchaser has paid $3,700 I will then give him, or her, a warranty deed of said farm, taking back a mortgage on the same for the unpaid balance of purchase price, and payable not later than 1914.
“At the time you make the sale of the farm, or as soon thereafter as possible ( not to exceed ten days), I will deliver to you for the buyer, a complete abstract of title and tax history of said farm, which shall show a perfect record title.
“ This agency shall be in force, and continue from this date up to and including Nov. 3d, 1910.
“ Dated at Davison, this 3d day of Nov. 1909.
“David E. McAra.”

The plaintiff immediately made efforts to sell the farm, took photographs of the buildings, and in a short time informed the defendant he had a purchaser ready to buy the place. It is claimed the plaintiff had negotiated a sale of the place at $6,500, and demanded that the defendant, if he refused -to sell the place, pay him for his services, according to the value of it, fixed by the contract. This the defendant refused to do, and this suit was brought.

It is plaintiff’s claim that there is only one question involved in this case, viz., whether the contract to pay for this service was void because the wife did not sign it. This claim is based upon the fact that a verdict was directed in favor of defendant for that reason. The claim of the plaintiff is as follows:

“ Surely, this contract does not provide for a sale of the land to the plaintiff. Plainly, the object of the contract is the sale by the defendant of his farm, through the agency of the plaintiff, the defendant to receive his price for the farm, and the plaintiff a profit, by way of compensation for his services. The provisions for the making of a deed and contract are incidental, and serve only to define the duty of the plaintiff in earning the stipulated commission. The plaintiff was not to become the owner of the land, or any interest in it. The agreement was that defendant would contract, with, and deed this farm to, ‘ any person you may sell the farm to.’ The first sentence of the contract defines the relations of the parties, and precludes the inference that the parties sustained the relation of vendor and vendee:
“ ‘I hereby give you the exclusive agency, and authorize you to sell my farm in Genesee county, Michigan. ’
“The next paragraph begins:
“ ‘I agree that you shall add to my price whatsoever sum you may see fit for your service in making the sale, and deduct such amount from the purchase money, and turn over to me the balance, and I will not make a lower price on farm than you do, during the life of this agency, nor will I put any obstacles in your way, in your efforts to make sale of farm. ’
“And the last clause reads:
“ ‘This agency shall be in force and continue, from this date up to and including November 3d, 1910.’
“ The terms of this contract leave no room to doubt that the plaintiff became the agent of the defendant, employed to perform a certain service. To hold that it is a contract for sale between the parties is to lose sight of the real purpose and intent of the contract, and to substitute a mere detail in the place of the purpose itself. The first paragraph of the contract, after providing for the agency, and giving the description of the land and the price, states the terms on which the agent may offer to sell, as follows:
“ ‘$300 cash at time of sale, and $3,400 when possession is given, balance on mortgage, due in .four years, at 6%, privilege to pay $100 or more on any interest day.’ ”

The defendant contends:

“(1) The contract in question is not a contract for services. It specifically provides that defendant shall convey upon the payment of $3,700 and the execution of a mortgage to him of $2,300 by the vendee and that defendant is not to pay plaintiff anything for his services, but that plaintiff’s compensation is to be paid out of the excess over and above the price named in the contract. Defendant therefore never promised plaintiff to pay him a cent for services in connection with such contract.
“ (2) The contract is entire and inseparable, and, if void in one respect, it is void in all respects. The provisions providing for a conveyance of the property are not incidental to the agency agreement, but are the essence of the contract and until the contract could be consummated by sale the plaintiff was not entitled to any compensation.
“(3) The contract as to the conveyance of the homestead being void ab initio, no obligation arises thereunder to pay plaintiff any compensation, as plaintiff was presumed to know that the contract was void and unenforceable, and he cannot predicate a claim for services rendered under such an agreement.”

No case directly in point is cited by counsel. The case of Lawrence v. Vinkemulder, 157 Mich. 294 (122 N. W. 88), being by an equally divided court, simply decides the law of that case. A reference to it will show it easily distinguishable from the case before us. No question of agency was involved in the case. This court in construing the statute of frauds which makes certain contracts void unless in writing (section 9509, 3 Comp. Laws), has used language which may be helpful here. In Carr v. Leavitt, 54 Mich. 540 (20 N. W. 576), Justice Cooley, speaking for the court, said:

“ This being the plaintiff’s case, and it being admitted that the alleged contract was not in writing, the defendant took the objection that the contract was void under the statute of frauds. The trial judge held the objection to be well taken, and directed a verdict for defendant.
“If the contract the plaintiff relied upon was within the statute, it must have been because it contemplated a purchase and then a sale of certain lands. But the plaintiff was to be neither purchaser nor seller, and the contract did not contemplate that in any contingency an interest in the land was to be conveyed to or vested in him. It contemplated only that in a certain event the plaintiff should receive a share of the moneys tfyat a sale of the land should bring. His interest was therefore in these moneys, and not in the land itself. And the moneys were to be payable to him in consideration of services performed. The profits on the two trades, to be brought about by the plaintiff, were to be taken as the measure of compensation, instead of any other that might have been agreed upon.
“This surely was not a contract ‘for the sale of any lands, or any interest in lands,’within the meaning of the statute of frauds. 2 How. Stat. § 6181. The statute contemplates a transaction between parties contracting with each other as principals; and this was not such a transaction. In this case the plaintiff as agent undertook to perform for the defendant certain services, and the defendant undertook to make a compensation therefor, the amount of which should be contingent on the value of the services. It was assumed in Bunnel v. Taintor’s Adm’r, 4 Conn. 568, that such a contract was not within the statute, and there are many express adjudications to the same effect. Trowbridge v. Wetherbee, 11 Allen (Mass.), 361; Fiero v. Fiero, 52 Barb. (N. Y.) 288; Hess v. Fox, 10 Wend. (N. Y.) 436; Bruce v. Hastings, 41 Vt. 380 (98 Am. Dec. 592); Bannon v. Bean, 9 Iowa, 395; Harben v. Congdon, 1 Cold. (Tenn.) 221; King v. Hanna, 9 B. Mon. (Ky.) 369; Heyn v. Philips, 37 Cal. 529; Lesley v. Rosson, 39 Miss. 368 (77 Am. Dec. 679); Benjamin v. Zell, 100 Pa. 33. Our attention has been directed to no cases which are opposed to these.
‘ ‘ The defendant relies upon a number of decisions by this court which are supposed to have some bearing upon the case, but we fail to perceive their relevancy. Every one of them was a case in which an interest in lands was bargained for, and was to be acquired by one of the parties, in pursuance of the terms of the contract. Hillebrands v. Nibbelink, 40 Mich. 646, may be taken as an illustration. The alleged verbal contract was that a father would convey to his son a farm, in satisfaction of a certain claim — a contract as plainly within the statute as if the land were to be conveyed for an agreed price in money.”

See Hamilton v. Frothingham, 59 Mich. 253 (26 N. W. 486); Waterman Real Estate Exchange v. Stephens, 71 Mich. 104 (38 N. W. 686); Obenauer v. Solomon, 151 Mich. 570 (115 N. W. 696).

These cases we think are controlling as to the contract as it reads, and a verdict should not have been directed.

Judgment is reversed, and new trial ordered.

McAlvay, Brooke, Blair, and Stone, JJ., concurred.


text:
    KLIMOWICZ v. PARKER, WEBB & CO.
    Negligence — Contributory Negligence.
    Where plaintiff entered on defendant’s premises to apply for work and stood talking with a person near a wagon track as a heavily loaded truck of defendant passed, which was moving slowly, and plaintiff, although he knew that it would pass very near him and in spite of a warning call of the driver, failed to move out of the way and was injured by the rear wheel, as the wagon tutned a curve near him, he was guilty of contributory negligence.
    Error to Wayne; Murfin, J.
    Submitted April 17,1911.
    (Docket No. 63.)
    Decided June 2, 1911.
    Case by John Xlimowicz against Parker, Webb & Company for personal injuries. A judgment for defendant on a verdict directed by the court is reviewed by plaintiff on writ of error.
    Affirmed.

      Henry G. L. Forler, for appellant.

      Keena, Lightner & Oxtoby, for appellee.
   McAlvay, J.

This suit was brought to recover damages for injury to plaintiff, caused by claimed negligence on the part of an employé of defendant. At the close of plaintiff’s case the court, on motion of defendant, directed a verdict in its behalf. A judgment of no cause of action was entered on such directed verdict. Plaintiff seeks a reversal of such judgment in this court. The errors assigned relate to this action of the trial court.

The facts presented on the part of plaintiff are: That he was a laborer, who had resided in the city of Detroit 24 years, during which time he had worked mostly for the park board, when workmen were needed; that on October 28, 1909, he, being out of work, was looking for employment. He went upon defendant’s yards on Michigan avenue in company with another man, and, seeing a man mixing mortar in a mortar box, asked if there was work there, and also to see the foreman. Passing near this mortar box upon these premises was a wagon way, along which the teams and trucks of defendant passed, hauling loads in the ordinary course of its business. This wagon way, just as it passes the mortar box, curves to the right. Plaintiff was standing between the traveled track and the mortar box during his talk with the workman. He saw a truck of defendant, heavily loaded with planks drawn by two horses, coming along the track towards him. It was coming slowly. When it was passing him following the track on the curve, the mortar man called out: “ Look out! the truck will run over you.” The other man walked out of danger, but plaintiff was struck on the heel of one foot by the hind wheel of the truck and injured. His testimony is that the front wheels passed about three feet from him. His witness says that this distance was about one foot. Plaintiff stood with his back towards the wagon track, but he distinctly saw the team coming, and gave the color of the horses, the kind of load they were hauling, the name of defendant lettered on the harness and painted on the truck.

It is not contended on the part of appellant that this was a public way; on the contrary, it is admitted that it was upon defendant’s premises. It is contended that the driver was negligent. The fact that the plaintiff’s foot was injured is the only foundation for such a claim, and there is not coupled with it any evidence of carelessness on the driver’s part. In disposing of the case the court held that, without reference to negligence on the part of defendant, the plaintiff’s testimony showed that he was clearly guilty of contributory negligence, and could not recover. We agree with the trial court. The record would also have warranted a holding that no negligence of defendant was shown. This accident occurred in an open field, in broad daylight, where plaintiff, if he had exercised ordinary care, would have avoided injury.

The judgment of the circuit court is affirmed.

Moore, Brooke, Blair, and Stone, JJ., concurred.


author: Stone, J.

text:
    TIETZ v. GRAND TRUNK RAILWAY CO. OF CANADA.
    Railroads — Crossing Negligenoe — Trial—Evidence — Contributory Negligenoe.
    Plaintiff was struck by an engine of defendant at a crossing, and testified that he stopped twice before crossing the track, that it was dark and a strong wind was blowing, and that he heard no signals, saw no train coming, and heard no rumbling of the train. Several of his witnesses corroborated his testimony as to the light and signals. Two witnesses testified that the train was running from 40 to 50 miles an hour. Defendant’s witnesses disputed all such testimony, and as to the ringing of the bell, defendant’s trainmen testified positively that it was ringing, and the engineer gave evidence that he blew the whistle at all the crossings but did not know the one in question. It was undisputed that the only light at the rear of the engine as it backed up was a hand lantern. Held, that the plaintiff’s testimony was not of suoh negative character and defendant’s proofs so positive as to take the case from the jury, and that plaintiff was not guilty of contributory negligence as a matter of law.
    Error to Macomb; Tappan, J., presiding.
    Submitted April 17, 1911.
    (Docket No. 54.)
    Decided June 2, 1911.
    Case by John Tietz, by next friend, against the Grand Trunk Railway Company of Canada. Judgment for plaintiff. Defendant brings error.
    Affirmed.

      Harrison Geer, for appellant.

      William T. Hosner {John A. Weeks, of counsel), for appellee.
   Stone, J.

John Tietz, a minor who was just past 17 years of age at the time the injury complained of occurred, brought suit, by next friend, against the defendant to recover damages as compensation for personal injuries sustained by him through the collision of the buggy in which he was riding along the Hadley road, so called, in the township of Armada, Macomb county, at a point where said highway crosses the Michigan Air Line Railroad, a single-track railroad operated by the defendant, and the engine and tender running backward in a westerly direction over such railroad at substantially 8 o’clock on the evening of November 4,1908. Hadley road extends in a northeasterly and southwesterly direction, and the railroad track also extends in the same direction, but the highway runs much more to the north and south than does the railroad. There was one house along this highway, which was located substantially 300 feet north of the point of intersection of the highway with the railroad, and upon the east side of the highway. Passing south from the house along this highway for the first 150 feet, or thereabouts, it is level with the adj acent land. Then there had been a cut making an embankment on the east of the highway of about six feet in depth, and it extended to within about 40 feet of the northerly rail of the defendant railroad. There were on the westerly side of the highway, and north of the track, several acres of elm trees. The land upon which these trees stood was much lower than the highway. The railroad for about 30 rods east of the Hadley road crossing runs through a cut of about the same depth as is that along the easterly side of the highway.

The engine in question left Jackson pulling a stock train by way of Lennox for Detroit. The train reached Romeo at substantially 6:30 o’clock. After doing some switching there, the engineer discovered that he did not have sufficient water in the tank to haul the train to Armada, the next station east. There being no means of taking water at Romeo, the conductor cut off the six forward cars from the remainder of the train, and the engineer, fireman, and forward brakeman went to Armada with so much of the train. Arriving there, these six cars were placed on a siding. The tank was filled with water, and they started to return to Romeo for the remainder of the train at about 7:45 p. m. There being no turntable at Armada, it was necessary, in going from Armada to Romeo, that the engine and tender run backward. The fireman placed an ordinary railroad hand lantern upon the westerly end of the tender. It threw a white light. There were brackets upon the manhole into which to slide said lantern, which brackets held it securely. It is claimed by the defendant that the lantern was so placed in compliance with the rule of the company.

In view of the fact that the plaintiff is the only witness who testified to the circumstances surrounding the collision, we deem it proper to insert the substance of his testimony as to the injury. Testifying as to the approach from the north, and speaking first of the point 150 feet from the crossing, the plaintiff said:

“You can see back I should say, I don’t know about the night, but in the daytime you can see from the top of the hill back maybe about 40 rods from the top of the hill. * * * You cannot see anything to the west on account of the woods at that point. When I reached that point, I knew the railroad track was there, and I didn’t really expect a train at that time, but I looked out for it as I always do when I go across the track. I was alone. The only thing I was thinking about was that the track was there and I was coming to the crossing of it at that time. I was driving a farm horse which we worked in a team. I had a top buggy with the top half down. The top would not interfere at all with my looking ahead; I could see both ways. I was wearing a little skull cap. There was no earlap on it. I had on my coat. This was turned up. It wasn’t tight to my ears, and wouldn’t interfere with my hearing in any way. When I was within 150 feet of the track, I stopped my rig over the hill. I didn’t see or hear anything, so I started my horse and let him walk. I came to a complete stop, and looked in both directions as far as I could see. I could see nothing and hear nothing. I heard no bell or whistle from the locomotive or rumbling of approaching train. After leaving that point, I proceeded along the highway towards the railroad track. I walked my horse the distance from that point to the railroad track. All that I had on my mind was that I was going to cross the track there. When the horse’s head was within eight or ten feet of the track, I stopped the horse, leaned ahead in the buggy, and looked both ways and listened. I saw and heard nothing, so I started the horse and drove on, and just as I got on the track is the last thing I remember. I was struck and became unconscious. I stopped when the horse was eight or ten feet from the track just long enough to look both ways. I think that I would be back six or seven feet further when I was sitting in the buggy, possibly 14 or 15 feet from the north rail. When I stopped the last time, the horse was in the center of the highway, and, if it had been daytime, I could have seen a thousand feet in either direction from that point. There was nothing to obstruct the view except the fence and the posts, and they would not obstruct the view of one standing in the position I was. As you go further north the bank and the trees obstruct the view so that you could not see in either direction. I looked in both directions very carefully and listened very carefully. I observed nothing at all. The only thing I saw of the train that struck me was just a kind of a flash; kind of scared me for a minute. That is all I saw. I didn’t see anything of any light. I didn’t see any headlight or lookout. When I regained consciousness, I was , down beside the cattle guards.”

The buggy was literally smashed to pieces and strewn about the track. The horse was found dead the next morning, about ?5 feet from the crossing, on the south side of the track. The plaintiff was so badly injured that it was necessary to amputate his left leg, and he was otherwise injured. The plaintiff .lay there unconscious until the return of the engine and its train, when it appears that some portion of the buggy was thrown against his face, arousing him, after which he made an outcry, and attracted the attention of a Mr. Farrand and family, who lived in the house north of the crossing already referred to. The plaintiff testified that it was a very dark night, and that the wind was blowing from the northwest; that the branches of the trees came out near the railroad track and highway. Plaintiff testified that before the accident he weighed 135 pounds, was in good health, and that his eyesight ;and hearing were good. He further testified, on cross-examination, referring to the Farrand house:

“ The road in front of the house is level with the surface of the ground; and, when you get within 150 feet south of the Farrand house, the road commences to decline. The cut starts gradually and grows deeper. I don’t think that at any point after where I stopped at 150 feet back, if I had stopped again, I could have looked east and seen the train coming until I got down to the track. That is the reason I didn’t stop because I knew I couldn’t see it on account of the bank. I think that, when I stopped the horse, his feet were about eight or ten feet from the north rail. I was in the buggy. The nose of the horse was within eight or ten feet of the rail, so his feet were probably ten feet from the track. I stopped there. I am not sure that as I sat in that buggy my head was six feet above the surface of the ground. It was just an ordinary buggy, and I think my eyes would be about six feet from the ground. I never measured it. I remained there, stopped there just long enough to look both ways up and down. I could not see anything, so I went on. I was careful to bring the horse to a stop so that the buggy wouldn’t make any noise. There was some wind. I think I looked to the west first. I am not sure. I looked both ways. I looked Yery carefully. My horse was standing still. I saw no lights, and didn’t hear the rumbling of any train. I drove forward until my horse must have been right on the track. * * * He walked, and, just as he got on the track, he was truck by the engine. I didn’t see or hear anything of the train until the collision occurred. I never saw the engine at all until it came right against my horse. He was going just at an ordinary walk. From the time Í stopped him about 150 feet back from the crossing I just let him walk down to the track. I trotted him until he got to that hill in front of Farrand’s house. I knew that was a good place to look, and I could have seen if there was anything coming. I also knew that from that time up until I got down near the track I could not see anything at the east on account of the bank. That is the reason why I drove close to the track so as to be in a position to see. I say that at the point where I stopped the second time I could have seen a train in the daytime a thousand feet away.”

When this engine and tender were east of the Hadley crossing, they were heard by several persons. Arthur Farrand, who lived in the house above mentioned, and his wife, had retired for the night. They occupied a bedroom situated at the southeast corner of the house on the ground floor. When the engine and tender were 50 or 60 rods east of the crossing, Mr. Farrand heard them. He got up, raised the curtain, and looked out of the window, as the noise continued to grow plainer. When the engine and tender were about 20 rods from the crossing, he observed that the fire box door was open. The reflection from the fire box lighted up the engine and tender. He observed that they were backing west. He testified that he saw no light upon the westerly end of the tender, and no headlight upon the engine. He did, however, observe the engine and tender by the reflection thrown upon them from the fire box, the door being open until the engine was within five rods east of the crossing. He testified:

“ During the time that the train was being observed by me, I didn’t hear any whistle or bell. I was listening for those signals. If any whistle or bell had been blown or sounded, I would have heard it. I was listening real closely. I only heard the coming. It was something unusual, and we were listening to see what it was.”

Mrs. Farrand testified that she did not get out of bed, but sat up, and that for some minutes before she saw the engine and tender pass her bedroom window she heard them approaching. She observed the reflection from the fire box as the engine passed her bedroom window.

Claud Webster, a brother-in-law of Mr. Farrand, was with his wife spending the night there. They occupied a bedroom at the northwest corner of the house on the ground floor, which bedroom was separated from the parlor by two folding doors. He testified that he was preparing to retire for the night and stood near these folding doors at the time he heard the rumbling noise of the approaching train. He stepped into the parlor, looked out of the bay window, and then saw the engine and fender. He testified that it was within 80 to 35 rods east of the crossing when he first heard it, and that at the time he first saw the engine it was about five rods from the crossing. As the train passed the crossing Mr. Webster saw no headlight burning; that is, he saw no light on the front end of the train as it was moving. He is very positive that he heard no bell or whistle from the time when he first heard the noise of the train.

One Frank Millard, a farmer living three-eights of a mile southwest of the Hadley crossing, and about 80 rods south from the railroad track, testified that he was at the northeast corner of his house at the time the engine and tender went west. He testified that he heard the engine and tender when near the Hadley crossing, and that, when he first saw them, he observed a flash of light. He described it as a “ kind of reflection from the fire box when they put in a fire. I did not observe any other lights.”

Two young men, Carl and Gilbert Ganfield, who were from a mile and a half to two miles west from the Hadley crossing, observed the engine and tender as they passed west near them. The first of these witnesses, Carl, testified that he did not notice whether the train had a headlight on or not. He did not observe any. He simply heard the noise, saw the light, and knew it went by. He heard no whistle or bell. Gilbert testified that the light which attracted his attention looked as though it was from the open fire box; that the train passed within 10 rods of him, and he observed no lights upon the train, besides the light from the fire hole; that he had a side view of the train and observed no light before the train passed. He heard no bell, whistle, or signal given by the engine. The plaintiff’s witnesses above mentioned testified that it was a dark night, and a strong wind was blowing from the northwest.

Dr. Traphagan, the physician, who was called about 11 o’clock at night to attend the plaintiff, and who traveled from the village of Armada, some two or three miles distant, testified that it was a dark night. On the other hand, the person in charge of the United States weather bureau at Detroit testified from his records that the moon was three-quarters full, and that it was a clear night in Detroit, and that, under existing conditions, there would be little or no cloudiness in the southeast portion of Michigan; and that it followed from the existing conditions that the night at Armada, was clear. This testimony was corroborated by the person in charge of the United States weather bureau office at Grand Rapids. The engineer, fireman, and brakeman in charge of the engine and tender testified that it was a clear, bright night, and yet they did not know that any accident had happened until the next morning; and, although they went to Romeo after the collision and returned an hour later, they neither observed the wreck of the buggy, the plaintiff in his injured condition, nor the dead horse lying near by.

The engineer, fireman, and brakeman testified that the engine was running not to exceed 17 miles an hour. Two witnesses produced by the plaintiff testified that in their judgment the engine was running 40 to 50 miles an hour.

Upon the subject of signals, the engineer testified that as he started to go back from Armada to Romeo he set the engine bell ringing, that this was an automatic bell, and that the bell continued to ring all the way from Armada back to Romeo, and until they stopped at Romeo. "With reference to the whistle, the engineer testified:

“ I blew the whistle after leaving Armada for Romeo at the different crossings. A crossing whistle is two long and two short blasts. They are blown at the whistling posts. I don’t know the Hadley crossing by name, but they said the second crossing the other side of Armada. I don’t know these crossings by name. The whistling posts tell us where these crossings are, and I blew it near the whistling post.”

The fireman testified to the ringing of the bell, that it was started when they left Armada, and it was ringing when they stopped, and the lantern was still burning. As to the blowing of the whistles, this witness testified that they could be heard eight or ten miles, that he could not say how many times the engineer blew it between Armada and Romeo, but he thought he blew it every time he came to a crossing, but the witness would not state positively whether he blew it or not every time he passed a crossing between Armada and Romeo; that he had a recollection of the engineer blowing the whistle several times, but the witness was busy about his duties throwing on coal from time to time. The brakeman’s testimony about the ringing of the bell was substantially the same as that of the fireman.

At the close of the testimony, counsel for defendant moved the court to direct a verdict for the defendant, for the reasons that no negligence of defendant had been shown, and that plaintiff was guilty of contributory negligence. This was refused and an exception taken, and the case was submitted to the jury by the trial court. As stated by defendant’s counsel in his brief, the negligence of which it is claimed defendant was guilty, and which question the trial judge submitted to the jury for their determination, is well set forth in the following language:

“You are further instructed under the evidence that if the engine in question sounded the crossing bell at a proper distance east of the crossing, that the bell on such engine was ringing as it approached the crossing, and that a white light in the shape of a lantern was upon the west end of the tender, then the defendant company was guilty of no negligence in the premises, and your verdict should then be for the defendant.”

The jury returned a verdict for the plaintiff for $5,000. There is no claim that this verdict was excessive, if the plaintiff was entitled to recover. There was no motion for a new trial. The defendant has brought the case here upon bill of exceptions, and by assignments of error has presented the questions already mentioned.

(1) It is the claim of the defendant that the evidence fails to show that the defendant was guilty of any negligence, and that the trial judge should so have charged the jury as requested.
(2) That the plaintiff was guilty of contributory negligence as matter of law, and that the trial judge should, as requested, so have instructed the jury.

The plaintiff contends that the testimony fairly tends to show the following significant facts:

(1) That it was a dark night.
(2) That the train was running backwards without a headlight.
(3) That there was no lookout or watch ahead.
(4) That there was an excessive rate of speed.
(5) No warning whistle or bell.

The plaintiff contends that the testimony to establish these facts was positive in its nature, and not negative.

We have already indicated that the plaintiff and five of his witnesses testified that it was a dark night; some of them say a very dark night. This was disputed by an equal number of witnesses on behalf of the defendant, and the weather men from Detroit and Grand Rapids. That the train was running backwards and without a headlight, except the hand lantern hung on the tender, and that there was no lookout or watch ahead, do not seem to be disputed. The proposition that the engine was running at an excessive rate of speed is disputed, the plaintiff having shown by two witnesses whose testimony is criticised by the defendant that the train was running from 40 to 50 miles an hour, while the engineer, fireman, and brakeman testified to the lesser rate of speed, which we have alluded to. The fifth proposition, as to the statutory whistle and bell, is disputed; the plaintiff and several of his witnesses testifying that no signals were given, or that they heard no signals while listening for them, while the defendant’s witnesses in charge of the engine testify positively in regard to the ringing of the bell, but this cannot be said of the sounding of the whistle, for really the engineer in charge is the only person who testifies positively as to the sounding of the whistle, and he only spoke as to all crossings, not knowing this crossing from the others.

1. Upon the first point urged by defendant, it is strenuously insisted by counsel that the testimony which the plaintiff introduced, as to whether there was a light upon the tender at the time it approached the Hadley crossing, and as to whether the whistle was sounded at a proper distance, and the bell rung, was purely of a negative character, the witnesses being either in no position to observe signals or paying no heed whatever, and it is urged that the cases of Stewart v. Railroad Co., 119 Mich. 91 (77 N. W. 643), Britton v. Railroad Co., 122 Mich. 359 (81 N. W. 253), and Bond v. Railway Co., 128 Mich. 577 (87 N. W. 755), are conclusive and controlling upon this point. We have examined these cases with considerable care, and are unable to agree with defendant’s counsel in this contention. It should not be forgotten that in the instant case the injury occurred in the nighttime. The case of Stewart v. Railroad Co., supra, arose from an injury which occurred by daylight, and the headnote specifically points out the distinction between that case and this:

“ In an action for the death of plaintiff’s intestate in a collision at a railroad crossing, three of the train crew testified positively to the giving of the proper crossing signals, and were supported in this respect by two of plaintiff’s witnesses. The only testimony relied upon by plaintiff as raising an issue for the jury was that of certain witnesses who testified that they did not hear the signals, but who admitted that they were occupied with other matters, and were not in positions favorable to hearing them, and the confused and uncertain testimony of a child 11 years old. Held, that the jury should have been instructed that the signals were given.”

In Britton v. Railroad Co., supra, the headnote upon this branch of the case is as follows:

“ The testimony of the occupants of a closed carriage, struck by a train at a railroad crossing, that, although they stopped two rods from the track, and listened, they heard no crossing signals, does not rise to the dignity of evidence, so as to take the question to the jury, where all the members of the train crew, and a bystander, an entirely disinterested witness, testify positively that the signals were given, and state the reasons for their recollection.”

In Bond v. Railway Co., supra, the headnote is as follows:

“Where, in an action for injuries caused by a collision at a railroad crossing, the negligence alleged was a failure to give the statutory signals, and there was the testimony of seven witnesses, including those in charge of the train, that the signals were given, as against the sole testimony of the plaintiff, a woman partially deaf, who, at the time of the accident, was sitting in a closed carriage, and whose testimony was in several respects contradictory of that given by her on a former trial, a motion to set aside a verdict in her favor, and grant a new trial, on the ground that the verdict was against the weight of the evidence, should have been granted.”

It seems to us that these cases are readily distinguishable from the case we are considering, and that the question of the negligence of the defendant was properly submitted to the jury. In our opinion the case more clearly resembles that of Lonis v. Railway Co., 111 Mich. 458-460 (69 N. W. 642, 643). In that case Mr. Justice Grant said:

“Five witnesses for the plaintiff swear positively that the signals were not given, and give their reasons why they so testified. One other witness, John Williams, testified that he was ‘ looking right at the engine,’ and that he did not hear any bell or whistle. On cross-examination he said ‘ he did not think he was thinking anything at all about any train coming; that his attention was not called directly as to whether the train whistled or whether it did not, although, being out of doors, he would have heard it, probably, if it had whistled; that he would hardly think the bell would ring without he noticed it at such a time as that, — in fact, he was talking about it right away. On the part of the defendant, 18 witnesses testified positively that the signals were given. We do not think there was negative testimony to which the request would have been applicable. The only testimony to which that term could possibly be applied was that of Williams. But he said that he was looking at the engine, was out of doors, and within hearing distance. It seems improbable, as he testified, that he would not have heard them under these circumstances. The situation before the jury was one of positive testimony against positive testimony, and their verdict depended upon which they believed. They have, said by their verdict that they believed the five witnesses for plaintiff, and did not believe the 18 for the defendant. If there was any remedy for the defendant, it lay with the circuit judge, who saw the witnesses, and was better able than we are to determine whether the jury disregarded the rule as to preponderance of evidence, so as to justify him in granting a new trial.”

See, also, Crane v. Railroad Co., 107 Mich. 511 (65 N. W. 527); Hinkley v. Railway Co., 162 Mich. 546 (127 N. W. 668).

2. Upon the question of contributory negligence, defendant’s counsel says that—

“ The case at bar differs from the usual crossing accident, in that there is no testimony as to the conduct of plaintiff as he approached the crossing in question other than is given us by him. We are compelled, therefore’, to accept as true, his version of what he did, but, should this show him to have been guilty of contributory negligence, then there was, under the decisions of this court, no question for the trial judge to submit to the jury.”

And he cites, in support of his position, Davis v. Railroad Co., 20 Mich. 105 (4 Am. Rep. 864); Jenks v. Colwell, 66 Mich. 420 (33 N. W. 528, 11 Am. St. Rep. 502); Karrer v. Railway Co., 76 Mich. 400 (43 N. W. 370); Brady v. Railroad Co., 81 Mich. 616 (45 N. W. 1110). These cases do not seem to us to be controlling of the question here. In Davis v. Railroad Co., supra, this court held that when the plaintiff on the stand as a witness states his case so as to show that he has no cause of action, and there is no attempt at a“qualifying explanation by other witnesses, he has no ground of complaint if the court charge the jury that no recovery is justifiable. In Jenks v. Colwell, supra, it was held that, where the undisputed testimony of the plaintiffs in the case establishes a fact affecting their right to recover, it is error to submit such fact to the jury, as a question in dispute under the testimony. In Karrer v. Railway Co., supra, this court said:

“Where there is conflicting testimony, and a plaintiff’s case is made out, unless disbelieved, it is proper to let the jury decide the controversy; but they should not be allowed to give a plaintiff a verdict against his own admissions and his own case as he makes it out, with no other reliance.”

In Brady v. Railroad Co., supra, this court ruled that a plaintiff is held to have been guilty of contributory negligence in attempting to cross a railroad track at a crossing so obstructed by intervening objects that he could not see a train approaching from one direction until he was within 20 or 25 feet of the crossing, and then only for a few rods up the track, without first stopping his team and taking some precaution to see if a train, which he knew was about due, was approaching.

We cannot agree with counsel that the above authorities are applicable in this case upon the question of contributory negligence. If the plaintiff’s testimony is to be believed, he was guilty of no negligence. In our opinion whether he testified truthfully or not was a fair question for the jury. If it was a dark night, and if the wind was blowing as he claims it was at the time, if there was no light, and if no statutory signals were given, it is difficult to understand why the plaintiff had not the right to suppose it was safe for him to cross the railroad track, after he had stopped, and looked and listened, as testified to by him.

In our opinion the case was properly submitted to the jury upon the questions of fact involved, and, after examining the entire record with care, we are unable to discover any reversible error. The judgment of the circuit court is therefore affirmed.

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