author: Steere, J.

text:
    BONNER v. GRAND TRUNK WESTERN RAILWAY CO.
    1. Railroads — Negligence—Evidence—Gross Negiigence.
    Evidence that plaintiff, in crossing defendant’s double track near the station in a city, as the gates were being lowered, took a position in the space between the rails of the westbound track to wait for a passing train, and was struck by a freight train, held, to show contributory negligence, and not to warrant the submission of the question of gross negligence to the jury.
    2. Same — Subsequent or Discovered Negiigence.
    Defendant’s train men were justified in assuming that he had taken the precaution to look before,he went on the west-bound track and would step aside in due time.
    Error to Ingham; Collingwood, J.
    Submitted January 10, 1916.
    (Docket No. 79.)
    Decided June 1, 1916.
    Case by Alfred Bonner against the Grand Trunk Western Railway Company, a corporation, for personal injuries. Judgment for plaintiff. Defendant brings error.
    Reversed.

      Harrison Geer (W. K. Williams, of counsel), for appellant. • .

      Jason E. Nichols, for appellee.
   Steere, J.

Between 4 and 5 o’clock on the afternoon of January 17, 1914, plaintiff, while on his way south to a nearby grocery store, went upon defendant’s double main track railroad, at its right-angled intersection with Washington avenue, which runs north and south through the city of Lansing, just as the crossing gates were being lowered, and stood between the rails of the north, or west-bound, track, awaiting the passage into the passenger station immediately to the east, of defendant’s No. 8 fast Pullman express train from the west. While so standing he was struck and injured by a freight train of two or three cars, going westward unobserved by him upon the west-bound track. The case was tried in the circuit court of Ingham county before a jury, and resulted in a verdict .for plaintiff for $600 damages.

At conclusion of plaintiff’s testimony defendant offered no proofs, its counsel contending that defendant was entitled to, and moved for, a directed verdict by the court in its favor, because plaintiff’s own evidence disclosed that he was guilty of contributory negligence, precluding recovery, as a matter of law, and because “no evidence had been introduced on the trial which showed or tended to show that the defendant company was guilty of any gross negligence.” This motion was denied, and the court, while charging the jury as a matter of law that plaintiff was guilty of contributory negligence in standing between the rails on the westbound track, refused to charge that there was no evidence tending to show gross negligence on the part of defendant’s servants — leaving that question to the jury as an issue of fact.

Defendant, in bringing the case to this court for review on writ of error, relies on three assignments, which practically involve but the one question of whether there was any evidence tending to prove gross negligence, and which are as follows:

“That it was error for the trial judge to hold on our motion for a directed verdict that the question of gross negligence on the part of the defendant was for the jury; secondly, in refusing to give our request to charge numbered 1 to the effect that there was ,no evidence in the case of gross negligence upon the part of the defendant; thirdj in submitting the question of gross negligence to the jury in paragraph No. 3 of the general charge.”

Defendant’s motion and requests are in substance and effect a demurrer to plaintiff’s evidence, admitting the truth of the testimony and those conclusions of fact which may legitimately be drawn from it, but denying that there is any evidence from which a jury can properly proceed to find the fact of gross or discovered negligence, without which plaintiff, upon whom the onus of proof is imposed, cannot recover. That a jury has no right to assume the truth of any material fact, unless it is established by legal evidence, and it is therefore error for the court to instruct the jury they may find a claimed fact of which no, evidence is produced from which it may legally be inferred, is a well-settled rule of ancient origin. Plaintiff’s testimony clearly shows that his was the primary negligence, and his counsel, in support of the theory that defendant’s employees were guilty of subsequent, discovered, or gross negligence superseding that of plaintiff, says in his brief: ,

“There is but one question in this case. The plaintiff negligently went upon the sidewalk between the rails of the west-bound track at this crossing, stood there intently watching the passenger train going by. It was broad daylight. The depot was a few rods east. The freight engine and two cars were switching and running west. The engineer and fireman, or the person running that engine, must have seen the danger which the plaintiff was. in. No extraordinary effort was made to attract plaintiff’s attention, as Mr. Williams would have noticed it, if there had been.”

At the place and under the surrounding circumstances the party running that engine at this guarded crossing near by the station was not guilty of even ordinary negligence in assuming persons crossing or standing upon the track as he approached would exercise commensurate vigilance to pare for their own safety, and the only pertinent question in that connection would be whether the person running the engine must have seen or anticipated that plaintiff would cling to this danger zone until the approaching engine struck him. That the train was not moving rapidly, and the engineer acted promptly when plaintiff’s negligence was actually discovered by him, is indicated in the following circumstances of the accident as related by plaintiff’s counsel:

“As he was about to start from the place where he had stood all the time looking at the incoming and passing train from the west, and without warning or signal, a freight engine with two cars, coming from the east and running on the -west-bound track, ran upon him, jostling and tumbling him across the street to the west side thereof, some 20 feet, when the engine stopped and the plaintiff was picked up by the engineer and fireman at the side of the engine in an unconscious condition.”

How long he stood there, or just where he stood, is not very satisfactorily shown, either by his testimony or that of Williams, who were the only witnesses to the accident; neither does their evidence show that warning signals were not given. Williams was walking south on the easterly side of Washington avenue, two or three rods behind plaintiff, and waited on the walk just north' of the north track for the two trains to. pass. The passenger train reached the crossing about the time he arrived, and he saw the freight train also.

“It was in plain sight, approaching the crossing and moving right along.”

. He knew plaintiff by sight, having seen him working on the streets and noticed that, like himself, he stopped for a train or trains to pass; that when he last noticed him he stood on the track.

“ * * * Q. The north track?
“A. Yes, he stood there; I do not know how long, because I was paying no attention and not thinking of any such thing”

—for he had no idea that he was in danger' when witness saw the freight train approaching. Of this he testifies:

“He (plaintiff) stopped for a little space, and of course I turned my head to see the other train. I knew I would have to wait for that to pass before I could go on. That was the freight train coming from the east. * * *
“Q. You paid no attention to him, did you?
“A. Of course not; I didn’t pay any attention to him.
“Q. And whether or not he stepped there between the two rails, the two tracks, and stood in between the two tracks, you don’t know; you don’t know whether he did that or not?
“A. No.”

Williams did not see the accident, his attention being attracted to the passing trains, which compelled him to stop, and his first knowledge of it was the sudden stopping of the freight train, and he first saw plaintiff again when either the engineer or fireman of the train was picking him up. Questioned as to signals, he said:

“I don’t know as I heard the engine of that freight train sound any bell or whistle before it struck Mr. Bonner. There was a bell going all the while on the other train, and I possibly would not have noticed. * * *
“Q. (on cross-examination). And you would not say that the bell on this engine was not rung; when I say this engine, I mean that freight, west-bound?
“A. No, sir.
“Q. You were not paying any attention to it, whether it was or not?
‘■‘A. No; I saw the freight coming; I was in a place of safety, and was not paying any attention to what the engine was doing. * * *”

Plaintiff’s testimony showed that he was a man over 70 years of age at that time, living on the first east and west street north of these tracks, and had been employed by the city as a street sweeper, working ten hours a day, on that section of Washington avenue, for about a year before the accident; his territory extending across defendant’s tracks, which he passed over several times each day while engaged in his work. He was familiar with conditions there, knowing that many trains passed in each direction daily, and a train was liable to go over that crossing from either direction at any time. He also knew which track was used by the east and which by the west bound trains, and understood the use and purpose of the crossing gates. They were lowered oh that occasion just as he reached the tracks, the north gate not being yet down when he passed it, and he stopped inside the gates to wait for the nassenger train from the west, which he saw approaching from the Grand river bridge near by. He at first testified that he stopped upon the walk running between the two tracks, .which were about ten feet apart, and stood still there, although he might have stepped back a little — “might have stepped back somewhere.” This, however, he corrected upon the following day, with the explanation, “I didn’t have my head right yesterday,” and testified that he stopped on the west-bound track, standing there until the train passed by, or until he was struck; that it was broad daylight, not cold, and he was not in a hurry; that he had nothing over his ears, his hearing was good, and ■sight all right, though he saw clearest with the right eye, but subsequently changed this to his left, and asserted that he had not said his right eye was his good eye; that he looked all around him when he first arrived at the crossing, and there was nothing in sight, except the train coming from the west, and he did not look to the east after he had looked to the west and seen No. 8 coming; that while waiting for the eastbound passenger train to pass, and watching it, he was struck by the other train, which he had not seen or heard or known anything about.

Plaintiff’s evidence contains no showing as to improper speed of the freight train when it approached the crossing, or of inattentive conduct of those upon the engine, nor of anything, except that he was watching the other train, to indicate or give notice to the engineer that he could not or would not look out for his own safety and step out of the way. The engineer had a right to assume plaintiff had exercised reasonable precautions to observe if a train was approaching along the track on which he stood and would seasonably step aside. Until it became apparent that he would not do so, there could be no discovered negligence. Neither is it shown that, after plaintiff’s negligence and resulting actual danger was or should have been discovered by the engineer, he did not promptly make every effort possible to stop and avoid the accident. We find nothing in any of plaintiff’s evidence which, under the rules of law and definition of gross negligence recognized and declared by this court, shows or tends to show that there was on the part of the engineer of this freight train, “after the discovery of plaintiff’s negligence,” any “intentional failure to perform a manifest duty, in reckless disregard of consequences as affecting the life or property of another,” nor a “thoughtless disregard of consequences without the exercise of any effort to avoid them.”

After a careful examination of this record, in the light of the following decisions, we are unable to discover any probative support in plaintiff’s evidence for the charge that defendant’s agents were guilty of wanton or gross negligence, which raised an issue for the jury, or would as a matter of law sustain a judgment entered by the court on a verdict in which the jury so found: Lake Shore, etc., R. Co. v. Miller, 25 Mich. 274, 278, 279; Freeman v. Railway Co., 74 Mich. 86 (41 N. W. 872, 3 L. R. A. 594) ; Knickerbocker v. Railway Co., 167 Mich. 596 (133 N. W. 504) ; Putt v. Railway Co., 171 Mich. 216 (137 N. W. 13) ; Berry v. Railway Co., 173 Mich. 181 (138 N. W. 1038) ; Cardinal v. Railway Co., 174 Mich. 22 (140 N. W. 530). Defendant was entitled to a directed verdict on the grounds stated in its counsel’s motion and requests, timely made therefor. The judgment is therefore reversed, without a new trial.

Stone, C. J., and Kuhn, Bird, Moore, Brooke, and Person, JJ., concurred. Ostrander, J., did not sit.


source: Caselaw Access Project

license: Public Domain

text:
    STODDARD v. GRAND TRUNK WESTERN RAILWAY CO.
    2. Fires — Locomotives—Directed Verdict.
    In an action for the destruction by fire of plaintiffs’ store and contents, alleged to have been negligently caused by a spark from defendant’s locomotive, the court was not in error in refusing to direct a verdict for defendant on the ground that its engine was properly equipped with machinery, smokestack, screen, etc., as testified to by defendant’s servants, where plaintiffs’ witness, who had had 38 years’ experience, testified that from his observation and experience the fire could not have been caused by an engine so properly equipped.
    2. Same — Argument of Counsel — Trial.
    The condition of the engine being a question of fact, it was not objectionable for plaintff’s counsel to argue to the jury that, if defendant’s contention was true that an engine properly equipped could cause the fire, then there
    • was no security for any property along the right of way.
    3. Same — Railroads—Locomotives—Evidence—Burden of Proof.
    The provisions of section 6295, 2 Comp. Laws (2 Comp. Laws 1915, § 8305), shifts the burden of proof to the defendant railroad to show affirmatively that the fire originating from its engine was not negligently set.
    4. Same — Evidence—Burden of Proof.
    The management of the engine being a matter peculiarly within the knowledge of defendant’s engineer and fireman, where their testimony showed they could not remember whether the door of the fire box was open, did not remember “anything about it,” etc., when passing through the village where the fire occurred, the question whether the engine was affirmatively shown by defendant to have been properly managed at the time was a question of fact for the jury.
    5. Same — Evidence.
    Evidence that upon the same trip this engine caused another fire a short time before the fire in question, was competent as tending to show defective condition or construction, and, when nearly contemporaneous, improper management, of the engine.
    6. Same — Trial—Argument or Counsel.
    It was not reversible error for the court to permit counsel, in his argument to the jury, to comment on defendant’s failure to produce at the trial the screen in use on the engine at the time of the fire; the evidence showing that the screen was bolted in place and easily removable.
    Error to Shiawassee; Miner, J.
    Submitted January 14, 1916.
    (Docket No. 92.)
    Decided June 1, 1916.
    Case by Hiram D. Stoddard and another against the Grand Trunk Western Railway Company for negligently setting fire to plaintiff’s store building and contents. Judgment for plaintiffs. Defendant brings error.
    Affirmed.

      Harrison Geer, for appellant.

      Frank A. Dean, Monroe Faulkerson, and Chapman, McNamara & Mathews for appellee.
   Steere, J.

Plaintiffs were copartners engaged in general merchandising in the village of Perry, Shiawassee county, where they ran a store located in the so-called “Brown building,” which was destroyed, ‘with its contents, on July 6, 1913, by a fire claimed to have been originally ignited by sparks emitted from an engine of defendant. This fire, which spread to and destroyed numerous other buildings, started in the roof of an elevator building located between 30 and 40 feet south of defendant’s tracks, which ran northeasterly and southwesterly through the village. The elevator was 80 feet long east and west, parallel with the track, 24% feet wide, about 45 feet high “to the first hip,” above which the fire started in the north side of the roof “about four feet from the ridge.” Sheds, a blacksmith shop, and other buildings were in its immediate vicinity, with more buildings comparatively near them. Plaintiff’s store was about 360 feet to the southeast of it. The fire started early in the afternoon and burned rapidly, soon spreading to adjacent buildings. The weather was warm and dry, with a high wind blowing from the northwest, occasionally shifting to the north. The elevator was not running, and plaintiffs’ testimony tended to show that no buildings near by contained fire that day.

Defendant’s road was double-tracked through Perry; the northerly track being for west-bound trains, and the southerly for east-bound. Shortly before the fire was discovered an extra train consisting of five baggage cars and two passenger coaches, carrying a carnival company, passed through Perry at about 1:40 p. m., standard time, east-bound on the south track* running about 35 miles an hour, drawn by engine 2297* and making no stop between Lansing and Durand.. While much testimony was introduced upon the question of whether or not the fire was started by sparks escaping from defendant’s engine No. 2297, and that issue was sharply contested in the trial court, defendant’s counsel concedes that plaintiffs’ proofs made it an issue of fact for the jury, under Jones v. Railroad Co., 59 Mich. 437 (26 N. W. 662); Hagan v. Railroad Co., 86 Mich. 615 (49 N. W. 509); Clark v. Railway Co., 149 Mich. 400 (112 N. W. 1121, 12 Am. & Eng. Ann. Cas. 559); Potter v. Railway Co., 157 Mich. 210 (121 N. W. 808, 22 L. R. A. [N. S.] 1039); Union Ice Co. v. Railway Co., 178 Mich. 346 (144 N. W. 1033); Pennsylvania Fire Ins. Co. v. Railroad Co., 184 Mich. 375 (151 N. W. 578). But it is urged defendant’s testimony showed conclusively that the engine was fully equipped with machinery, smokestack, screen, fire box, etc.,,in good order, and was properly run, operated, and managed at the time and place when and where it is charged with setting the fire, as required and specified in the exonerating proviso of section 6295, 2 Comp. Laws (2 Comp. Laws 1915, § 8305), with no conflicting testimony in the case which rises to the dignity of evidence.

The errors relied on and argued by defendant are in substance that the court should have directed a verdict in its favor, as requested, because the undisputed evidence showed that engine 2297 was in good order, properly equipped and managed at the time of the fire, in full compliance with the statute; that plaintiffs’ attorney was permitted, against objection and exception, to comment upon and argue to the jury as an evidential fact defendant’s failure to produce for inspection the screen used in said engine at the time of the fire, and to argue to the jury (as stated in ^defendant’s brief):

'“That if a screen in an engine will emit a spark that will carry vitality sufficient to ignite a building .along the right of way of the Grand Trunk Railway, then there is no security for property along the railroad in the State of Michigan or in the United States.”

The exact language of counsel as found on the page •of the record referred to in that connection is:

“If it is true that that screen will emit a spark, that ‘small screen in an engine will emit a spark that will carry vitality sufficient to ignite buildings along the railway of the Grand Trunk system, then, gentlemen of the jury, there is no security for any property along the rights of way of any railroad in the State of Michigan or in the United States.”

This was said while arguing to the jury that, if the netting or screen used to prevent the escape of sparks from the smokestack of the engine was actually whole and in good order, sparks could not escape of sufficient size and vitality to ignite the elevator roof at the distance it was from the passing engine. Continuing the argument by permission of the court against repeated exceptions to this line of argument, plaintiffs’ counsel further said in part:

“If that is true, these little villages along their right of way would be nothing but smoldering heaps of ruins. * * * It is the only conclusion that can be reached; * * * my brother is wrong; they are wrong in their premises. I say to you again that no sparks can be emitted from that screen, if it is in proper condition, and carry with it vitality sufficient to ignite a building 50 feet away.”

We are not prepared to hold that this was illegitimate argument, if the question whether the engine was properly equipped and in good order was an issue for the jury. Defendant’s chief argument and first assignment of error are directed against the ruling of the trial court that it was, and the propriety of the argument stands or falls with that assignment, the essence of which is that defendant’s testimony showed conclusively, and without any competent controverting evidence, that all excusing provisions of the statute under which this action is brought had been fully complied with by defendant.

The provision of the statute in question, “that such railroad company shall not be held liable if it prove to the satisfaction of the court or jury that such fire originated from fire by engines whose machinery, smokestack or fire boxes were in good order and properly managed,” shifts the presumption of nonnegligence to that of negligence, and puts upon defendant the burden of showing affirmatively that the fire originating from its engine was not negligently set. Fisk v. Railroad Co., 114 Mich. 248 (72 N. W. 205).

To sustain this burden defendant introduced evidence that the engine claimed to have set the fire was. properly equipped and managed, and that an engine under such conditions would sometimes emit sparks and set fires as far or farther than charged in this case. The evidence upon the latter proposition was in its nature expert testimony, given by master mechanics, locomotive engineers, etc., from observation and experience in such matters. In denial of this plaintiff introduced the testimony of a locomotive engineer of 38 years’ experience, who had been chief of the Brotherhood of American Engineers, and had run engines drawing all classes.of trains under varying conditions. He testified upon the subject at length, and gave the opinion, from his observation and experience, that under the conditions of this case, as stated to him from the testimony, the fire could not have been set by sparks from defendant’s engine if the screen was in good condition. Clearly his testimony was competent, and raised an issue of fact upon that question, under Potter v. Railway Co., supra; Close v. Railroad Co., 169 Mich. 392, 403 (135 N. W. 346), and Union Ice Co. v. Railway Co., supra.

To avoid liability for a fire set by its engine it was incumbent upon defendant to show to the “satisfaction of the court or jury” both that it was in good order and that it was properly managed at the time. The management was a matter peculiarly within the knowledge of the engineer and fireman. The engineer testified in part that he was 25 years of age, with about 2y% years’ experience as a locomotive engineer; had no regular run, but worked mostly on freight trains in defendant’s employ as an extra engineer, to run when the regular men- laid off; did not think he had run this engine before; did not know its size or length, nor the length of its flues, nor size of its diaphragm, smoke box, or screen; did not notice that anything was wrong with the netting, or that the engine was throwing sparks; did not remember when the fireman last fired before reaching Perry, or whether he had the door -of the fire box open as they passed through there; had no recollection about it, except that the wind was blowing from the north; nothing out of the ordinary occurred to attract his attention; the engine worked well, so far as he knew it was properly fired, and he handled it in a proper manner. The fireman testified, among other things,’’that he was 24 years old, had about 3% years’ experience as a fireman, fired this engine in the usual manner, and put in a fire when it was necessary; did not remember what kind of coal he was using, nor whether he had the door of the fire box open when they passed through Perry or not; did not remember “anything about it,” but it was the rule not to fire in passing through towns, to keep from “throwing sparks and setting bridges afire, and buildings, and stockyards”; did not know they threw sparks that day, nor- of the fire at Perry until their return trip; knew nothing about the front end of this engine, and observed nothing out of the ordinary in the way it was handled. The conductor and brakeman, who usually ran on freight trains, testified they were back in the train, and unable to tell how the engine worked, or the manner it was operated, except that they observed nothing unusual in that particular and did not know of it throwing sparks. This extra train crew was made up of men accustomed to running freight trains, the engineer was operating an engine he had not run before. Whatever their general competency, when their testimony is considered in connection with all other proofs of surrounding circumstances and conditions, the conclusion is unavoidable that whether this engine was affirmatively shown by defendant to have been properly managed at the time it passed the ele- ' vator at Perry was a question of fact to be determined by the jury, rather than of law to be decided by the court.

Plaintiff also produced two witnesses, who gave evidence to the effect that upon the same trip this engine set fire to a meadow near the track some six or seven miles to the west of Perry as it approached the village, and but a short time before fire was discovered in the roof of the elevator. Evidence that a particular engine had recently caused fires in other places by escaping sparks is competent, as tending to show defective condition or construction, and, when so nearly contemporaneous, even improper management. Hoyt v. Jeffers, 30 Mich. 181; Ireland v. Railroad Co., 79 Mich. 163, 165 (44 N. W. 426); Hagan v. Railroad Co., supra; Ainsworth v. Hover, 162 Mich. 135, 137 (127 N. W. 325); Close v. Railroad Co., 169 Mich. 392, 403 (135 N. W. 346); Slossen v. Railway Co., 60 Iowa, 215 (14 N. W. 244); West v. Railway Co., 77 Iowa, 654 (35 N. W. 479, 42 N. W. 512) ; Steele v. Railway Co. 74 Cal. 323 (15 Pac. 851).

It is fairly manifest from the setting of this case that the available evidence for plaintiff as to condition and operation of this engine were necessarily circumstantial, while the direct was in control' of and available to defendant. The jury had the unquestioned right to weigh both, and determine the value of each. They had the right to find that the admissible circumstantial evidence relative to a fact in dispute was more convincing and outweighed the direct testimony of witnesses as to such fact. It is not for the court' to weigh such evidence or pass upon the credibility of witnesses. The law does not define the weight to be given to such evidence; but where a material issue is raised by direct or circumstantial evidence, either or both, the whole matter comes within the scope and province of the jury.

Counsel for defendant urges that under the overwhelming and conclusive evidence introduced by it a verdict should have been directed for defendant, by authority of Dolph v. Railway, 149 Mich. 278 (112 N. W. 981), which is said to be directly in point and controlling here. This court said in that case, speaking through Justice Grant:

“We do not think that the statute of Michigan makes an issue of fact that must, under all circumstances, be left to the jury. When the railroad company has established by reputable and uncontroverted evidence that its appliances were such as good railroading requires, that they were in the condition required by the law, and properly managed, we think the question is one of law for the determination of the court, and not one of fact to be decided by the jury.”

This was illustrated by supposititious cases readily distinguishable from the instant case, and it was further stated:

“If different conclusions can be drawn from conceded facts, or if the facts are in dispute, the question belongs to the jury.”

And this concluding general rule, which is plainly applicable to the evidence in this case, is again clearly stated in Clark v. Railway, supra, as follows:

“If upon the whole case there is room for inference, based upon evidence, that equipment was defective, or that management was improper, the case is for the jury.”

While, as has been often said, no two cases are exactly alike in all details of fact and circumstance, we find nothing in this case which makes inapplicable the rules of law which have been more than once announced in construing the statute involved, and which are amply discussed in the cases herein referred to.

Upon the defense much testimony was introduced as to the condition, kind, and use made of the spark arrester or screen in the engine at the time of the fire, and a sample like the netting used, or type, was produced in court. It was shown that the engine had been overhauled and new netting put in about three months before the fire, and that immediately after the fire the engine was' inspected by several qualified employees of defendant, who testified that it was in thorough repair and good condition, including the netting. A model was introduced, from which witnesses explained and illustrated where and how the netting was installed, and how it was inspected, including the use of a gauge to ascertain if the openings through the screen retained the standard size. The screen in the model was represented by a piece of gauze. It was shown that the screens used in that type of engine were made of No. 10 double crimped wire with a 2%x 2 y% mesh, fastened in by bolts and easily removed. Defendant’s shop foreman testified that smokestacks were renewed quite frequently. “We put in a new screen or netting.” This netting was bought in rolls from the Buffalo Wire Cloth Company, and in putting in a new screen the employees would unroll what was required, shape it to fit the front end, and put it in. The amount of testimony devoted by the defense to this subject- upon the trial and the promptness with which it was investigated after the fire indicate that defendant was alive to the importance of the condition of this netting. There was foundation in the evidence for plaintiff to claim that it would be neither expensive nor difficult for defendant to have preserved this primary evidence in its then condition and produced the screen as an exhibit upon the trial. It was not produced.

Under the circumstances of this case, and the character of defendant’s testimony relative to the screen, it was not reversible error for the trial court to permit counsel to comment on its nonproduction. It has frequently been held that argument concerning the withholding or failure to produce apparently available and competent evidence upon a material issue is not objectionable. Williams v. Railway Co., 102 Mich. 537, 542 (61 N. W. 52); Huntsman v. Nichols, 116 Mass. 521, 526; Chambers v. Greenwood, 68 N. C. 274; Newton’s Adm’x v. Car Sprinkler Co., 87 Vt. 546 (90 Atl. 583); Concord Land, etc., Co. v. Clough, 70 N. H. 627 (47 Atl. 704).

The judgment is affirmed.

Stone, C. J., and Kuhn, Bird, Moore, Brooke, and Person, JJ., concurred. Ostrander, J., did not sit.


text:
    FOX v. SCHUMANN.
    1. Husband and Wife — Contracts—Question of Fact.
    In an action by a minor against husband and wife for damages for failure to permit plaintiff to attend school when in session, properly provided with books and other necessaries, and for the reasonable value of her services during the time contracted, where the evidence showed that the wife, with whom the arrangement was claimed to have been made, had charge of their household matters, and participated in the management of the business, the property and bank account being in her name, the question whether the claimed contract was made directly with the wife, In the absence of her husband, for herself and upon her own responsibility, was properly submitted to the jury.
    2. Parent and Child — Minors—Emancipation.
    While presumptively the earnings and services of a minor belong to the parent, the latter may relinquish this right or emancipate the child by an express agreement, or some formal act, and emancipation may also arise by implication from facts and circumstances.

      S. Same.
    Where plaintiff’s evidence as to her emancipation by her mother was practically undisputed, and ample, if believed by the jury, held, sufficient to sustain a verdict for plaintiff.
    4. Trial — Credibility of Witness.
    Where the truth of the claimed contract turned chiefly upon the credibility of plaintiff and defendant wife, the issue was within the province of the jury.
    5. Damages — Excessive Verdict — Breach of Contract — Evidence.
    Where, in an action for the breach of a contract to permit plaintiff to attend school and properly equip her with books, clothing, etc., in return for her services, the evidence showed that plaintiff had worked for defendant for three years and seven months, but had been kept out of school so much by defendant that it would cost plaintiff about $200 in actual expenses, aside from lost time, in making up her studies, a verdict for $225 cannot be said to be excessive or against the weight of the evidence.
    Error to Bay; Collins, J.
    Submitted January 7, 19Í6.
    (Docket No. 69.)
    Decided June 1, 1916.
    Assumpsit by Florence Fox, a minor, by next friend, in justice’s court against Augusta Schumann and Christopher Schumann for breach of contract. From a judgment for plaintiff defendants appealed to the •circuit court. Judgment for plaintiff against defendant Augusta Schumann, who brings error.
    Affirmed.

      W. A. Collins, for appellant.

      James Donnelly, for appellee.
   Steere, J.

This case was commenced in a justice’s court of Bay county, where judgment was rendered in plaintiff’s favor against both defendants. They appealed to the circuit court of said county, where, upon retrial by jury, a judgment of no cause of action was rendered in favor of defendant Christopher Schumann, and plaintiff recovered a verdict and judgment for $225 against defendant Augusta Schumann, who-brings the case to this court for review upon a writ or error.

Defendants are husband and wife, and at the time this action arose lived together as such in Bangor township, Bay county, Mich., where he ran a saloon, with the license in his name, but which he testified belonged to both of them. She owned the place upon which the saloon was located and they resided. The place consisted of about 35 acres. They did not engage in general farming but kept a horse, cow, chickens, etc., and worked a garden of about half an acre. The wife, Augusta, appears to have been dominant in their business affairs. She not only owned the place, but the bank account was in her name, and she assisted in managing and running the saloon, furnishing lunches, and waiting on customers. She was a sister of plaintiff’s mother, whose husband died early in 1910 leaving her with several children and in limited circumstances. In February, 1910, shortly after her father’s-death, plaintiff, then about 13 years of age, went to-live and work in the Schumann home, where she remained until September, 1913. She claims to have-been there under an agreement between herself and. Mrs. Schumann by which the latter promised to board,, properly clothe, and send her to school in return for-her domestic sex-vices until she should finish the eighth-grade, which she could have done at the end of the third year had she been allowed to attend regularly; but that she was kept from school by her aunt much of the time, meagerly clothed, and otherwise not well, or kindly treated, as a result of which her time was; devoted to drudgery, and she was deprived of the educational opportunities promised for her services. She-brought this action to recover damages for failure to permit her to attend school when in session, properly-provided with books and other necessaries, and for the-. reasonable value of her services during that time. On her part Mrs. Schumann denies that she ever made any agreement with or in relation to plaintiff, but claims that the child was simply brought to defendants' home by her mother and allowed to live with them, assisting as she could in the housework; that while there she was well cared for, clothed, and sent to school when in session, and she was well enough to attend, until she left of her own choice at the expiration of about three years. The testimony upon these conflicting claims is irreconcilable. Eeversal is urged upon the following grounds: The contract, if there was one, would not bind a married woman; there is no proof of emancipation of the plaintiff. And under the motion for a new trial: The verdict of the jury is against the weight of evidence; and the amount of the verdict is excessive. The trial court instructed the jury that a verdict could not be rendered against both defendants, but might be rendered against either one of them, leaving it for the jury to determine whether, if any agreement was entered into and violated, Mrs. Schurnann; with whom alone plaintiff claimed, the arrangement was made, acted with authority as agent for her husband (in which case he would be liable), or whether she contracted in her own behalf independent of her husband; that the evidence showed Mrs. Schumann owned the property where they lived and did business, held the bank account in her name, had charge of their household matters, and participated in the management of the business and could, if she wanted to, hire plaintiff to work for her under a legal contract for . her services, and, even though a married woman living with her husband, "if she made the contract with plaintiff to do this work, (she is bound by it.” The record fails to disclose evidence of any business transactions conducted by any one in connection with the home, property, or business of the Schumanns except by Mrs. Schumann herself, and the husband testified that he knew nothing about any agreement between his wife and plaintiff, saying:

“I had nothing to do with them whatever. * * * I don’t know anything about who bought her clothing. I don’t even buy my own clothes.”

The power of a married woman to bind her separate estate has been too often reviewed to call for discussion here. There was clearly sufficient testimony upon which to base a verdict that the contract claimed was made directly with the wife in the absence of her husband, for herself and upon her own responsibility. The question was properly submitted to the jury under the general rule applied and discussed in Howe v. North, 69 Mich. 272 (37 N. W. 213) ; Hirshfield v. Waldron, 83 Mich. 116 (47 N. W. 239); Meads v. Martin, 84 Mich. 306 (47 N. W. 583); Mosher v. Kittle, 101 Mich. 345 (59 N. W. 497) ; Goodman v. Shipley, 105 Mich. 439 (63 N. W. 412); Lempke v. Felcher, 115 Mich. 37 (73 N. W. 17) ; Bolthouse v. De Spelder, 181 Mich. 153 (147 N. W. 589). In the last-cited case it was held that a married woman, living with her husband in a home belonging to him, was not disabled from entering into a contract for domestic services for the family in their home, which would be binding upon her estate after her death, although she owned no separate property at the time she made the contract.

While presumptively the earnings and services of a minor belong to the parent until majority is reached, the parent may, at any time, relinquish this right to, or emancipate, the child. This may be done by an express agreement, or some formal act, and it may also arise by implication from proven facts and circumstances. This court has said:

“The fact of emancipation may take place suddenly and by express arrangement, or it may occur gradually and by conduct implying that the parent and child have mutually assented to the child’s release from parental authority. And in either case the change may be wrought in a short time.” Schoenberg v. Voigt, 36 Mich. 310.

Plaintiff testified that prior to her going to work for defendant her mother had given her to understand that she would have to take care of herself, told her she had to make her own living, and released her; that she has supported herself ever since, making her own bargain for services and collecting her earnings, to which her mother never made claim; that in the presence of her mother at the Schumann home she made her own bargain with Mrs. Schumann to stay with and work for her in order to get an education, as the latter promised in return for her services to support and put her “through the eighth grade,” after which she could go to a business college and then secure a position. The trial court correctly instructed the jury upon the question of emancipation, and submitted it to them as an issue of fact. Her testimony upon this subject was practically undisputed and ample, if believed by the jury, to sustain the verdict upon, that issue.

Tt is further urged that the verdict was against the weight of evidence, and excessive because the alleged contract is oply supported by the testimony of plaintiff, which is squarely denied by that of Mrs. Schumann, and the evidence, as a whole, is destitute of definite data, or items of damage, adequate to furnish any legal basis for the amount of verdict rendered.

It is true that whether any agreement was made and, if so, what it was, turns chiefly upon the comparative credibility of plaintiff and defendant; but that issue is clearly a matter within the province of the jury. The compared testimony of the two witnesses, weighed in the light of undisputed circumstances and supporting or opposing testimony of other witnesses, gives fair opportunity for the jury to find that such a contract was made and violated by the appealing defendant, without shocking the conscience of the court, and we see no occasion for the court to invade that field of inquiry.

It is shown there was a good school near the Schumann home where plaintiff could have finished the eighth grade in the three years if allowed to attend regularly and given reasonable time to. pursue her studies. The teacher of the school, who appears to have taken an interest in plaintiff, testified that she was “apt, and very industrious and obedient,” but was kept from school for months, attended irregularly, and often came late, giving as an. excuse that she was kept at work; that she was poorly clad, and frequently her clothing was so shabby that she was ridiculed by the other children; that witness in passing the Schumann house mornings and evenings had seen her cleaning up the saloon, out of doors in her bare feet caring for the stock, chopping wood, etc.; and Mrs. Schumann gave as an excuse for plaintiff’s .absence from school that she had lo work and did not have clothing. When interviewed upon the subject by the truant officer of Bay county, defendant told him that if he wanted plaintiff in school he would have to see that she was properly clothed and supplied with books. She also testified that the school officers were after her for not sending plaintiff to school, but asserted that she was only kept out when she, or defendant, was sick, and for two weeks at one time, after she came home crying because “the kids all laughed at her.” Others residing near by give support to plaintiff’s testimony that she worked faithfully for defendant, both as a domestic in the household and at outside labor of a kind not usually performed by a female servant, feeding and caring for stock, cleaning stables, hoeing and weeding in the garden, chopping and gathering fuel, etc., “working right along all the time,” as one witness expressed it. While defendant denies that plaintiff was required to do outdoor work or scrub out the saloon, as claimed, we do not discover that she anywhere denies that she was industrious and her service faithful.

Of her damages and' the circumstances of her leaving, plaintiff testified that while with defendant she at times earned money working for wages in a beanery and canning factory near' by and at picking berries in season, because defendant who took her earnings told her if she wanted clothes she would have to work out and get them; that finally, at a time when her mother was taken sick and sent for her, she went 'to visit and care for her while sick, remaining five weeks, and then defendant, who had consented to her going, sent word that she could not return, refusing later to let her have her personal effects which she had not taken when she temporarily left, and which were as listed in her bill of particulars. Under her evidence, the truth of which was for the jury, she was not in default for not -returning, and defendant violated her agreement in various ways. Defendant testified, on the other hand, that plaintiff remained away of her own accord, and denied taking any of her earnings, which she stated amounted to only about $16 and was spent by plaintiff herself.

Of plaintiff’s direct financial loss in being deprived of promised schooling her teacher testified, from her own experience as a student and observations as a teacher, that, aside from lost time, the actual expenses in making up her studies would be about $200, saying:

“If she made up the school year she lost in 1 year, it would cost her for living expenses, books and clothing about $200, with a great deal of extra help from the teacher and time spent outside the regular school hours. * * * I told her that if she worked hard and could be there every day she would finish the eighth, and I also told her the second year I had been there that if she attended every day and worked hard. I would get her through the eighth grade at the end of 3 years — that is, the last year I was there — but on account of conditions, and her not attending, it was impossible. * * * She would have finished the eighth grade at the end of the third year if she would have been there, with my extra time and work outside of school hours.”

Aside from the legal questions before discussed, this case is essentially one of disputed facts, and its merits run with the credibility of witnesses, which was for the jury to decide. There is evidential support for the verdict rendered, which we are not prepared to find was excessive or against the weight of evidence, nor are we of the opinion that it affirmatively appears any error complained of has resulted in a miscarriage of justice.

The judgment is affirmed.

Stone, C. J., and Kuhn, Ostrander, Bird, Moore, Brooke, and Person, JJ., cohcurred.


text:
    DANIELS v. BOARD OF EDUCATION OF CITY OF GRAND RAPIDS.
    1. Schools and School Districts — Defective School Building— Personal Injuries — Pleading.
    In an action against a school board as a corporation and the members of the board individually for personal injuries to a pupil caused by an alleged inadequate balustrade in a school building, where the declaration alleges that “defendants themselves” built the building and balustrade complained of, in the absence of any allegation to the contrary, it follows as a natural inference that they planned and built it.
    2. Same — Governmental Functions — Quasi Corporations — Liability in Tort Action.
    A school district created by Act No. 593, Local Acts 1905, limiting its powers exclusively to purposes of education, is purely a governmental agency, and that it may hold the property of the district in its name and sue and be sued, does not enlarge it as a quasi corporation; and, in the absence of statute creating liability, it ’is exempt from corporate liability for faulty construction or want of repair of its school, buildings.
    3. Same — Individual Liability.
    Where no statutory duty is imposed upon the members of the board individually, and no individual liability is created by statute, its individual members are not liable when the board as such is not liable.
    4. Same — Tort Action — Ultra Vires Acts.
    That the board at some previous time acted beyond its powers and permitted its school building to be used for public gatherings, with and without- rent, would not affect its status as a quasi corporation, and would not render it liable in an action for injuries to a pupil of the school while used for school purposes, received through alleged faulty construction.
    4. Same — Nuisance.
    Nor could recovery be had on the ground that such alleged faulty construction constituted a nuisance.
    Error to the superior court of Grand Rapids; Dun-ham, J.
    Submitted January 11, 1916.
    (Docket No. 95.)
    Decided June 1, 1916.
    Case by Elmer H. Daniels, an infant, by next friend, against the board of education of the city of Grand Rapids as a body and individually for injuries caused by alleged faulty construction of a balustrade in a schopl building. From an order sustaining defendants’ demurrer to the declaration, plaintiff brings error.
    Affirmed.

      Swarthout & Master, for appellant.

      R. M. Ferguson, City Attorney, and Charles A. Watt, Assistant City Attorney, for appellee board of education.

      Charles McPherson, Leon W. Harrington, and Oscar E. Waer, for other appellees.
   Steere, J.

Plaintiff, a boy about 8 years of age, was severely injured while a pupil at the Sigsbee school in the city of Grand Rapids as the result of falling a distance of about 18 feet down a central, open space around which the stairway ran leading to successive stories from the basement to the top of the building, with a balustrade, over which he fell, about 30 inches high on the side exposed to the opening. This action to recover damages for injuries so sustained was brought in the superior court of Grand Rapids, by his father as next friend, against the board of education of the city of Grand Rapids as a municipal corporation, and the members of said board individually. The basic negligence charged consisted of erecting and maintaining this stairway with the adjacent opening in a condition not properly safeguarded to protect children using the stairs while attending school. The case is here to review an order made by the court sustaining a demurrer to plaintiff’s declaration.

The declaration contains two counts, carefully drawn with abundant and varying legal phraseology charging the negligence of defendants in detail upon two theories of direct negligence. First, in erecting and devoting to school purposes an unsafe building; and, second, maintaining it for school uses in such unsafe condition that it was a continuing dangerous nuisance.

The negligent conduct of defendants as charged in plaintiff’s first count consists of constructing the Sigsbee street school building with stairways around a dangerous opening “elevator shaft, or wellhole,” extending from the basement through several floors, guarded only by a balustrade or railing 25 to 30 inches high, which was insufficient, not of standard height, “too low by at least a foot,” and while it was in that condition putting pupils of plaintiff’s age and grade upon the third floor instead of the first, not placing a monitor at the stairs to guard or warn the children of its dangerous condition when they were ascending or descending, and in not screening or covering with netting such wellhole or opening so as to prevent pupils from falling down it.

The second count runs along similar lines as the first, with the further allegations that defendants also kept said building in part for rent and to be used at times for public gatherings free of charge, that after full knowledge’ and notice of the improper and dangerous construction of said building in the particulars described defendants neglected to repair and remedy the same, but in wanton disregard of the safety of children of plaintiff’s age and grade continued to maintain the stairway and wellhole as “an inexcusable and attractive nuisance.”

In whatever language stated, the only real complaint, and the gist of the negligence charged, is that the balustrade on the exposed side of the stairway was constructed and maintained of insufficient height for the safety of pupils of plaintiff’s age. Separate demurrers, but of substantially the same import, were filed by the board of education, and its individual members. The demurrer of the individual members presents all questions involved in both demurrers, and is, so far as material, as follows:

“(1) The board of education of the city of Grand Rapids acts only in a governmental capacity, and neither it nor its members are liable for injuries arising out of a performance or nonperformance of any power, duty or obligation resting upon it or them.
“(2) The board of education of the city of Grand Rapids is authorized and empowered to raise and expend public moneys only for certain purposes, and for no other purposes; and such purposes do not include the raising and expending of moneys for the payment of claims for damages arising out of claimed defective school buildings, grounds or premises. Said board not being given power or authority to raise and expend public moneys in the payment of claims for damages arising out of claimed defective school buildings, grounds or premises, it and its members are not liable for such claims. •
“(3) The board of education of the city of Grand Rapids acts only in its official capacity, and the individual members of said board are vested with no powers and charged with no duties, and are not liable as individuals for its acts of ipisfeasance or malfeasance, arising out of or connected in any way with the administration of the public schools of the city of Grand Rapids.
“(4) None of the individual members of the board of education of the city of Grand Rapids is vested with any authority or charged with any duty to take any action whatever, with reference to the construction, repair, maintenance, or operation of any public school building or buildings of the city of Grand Rapids, or any part thereof, and none of such members is therefore liable for the neglect of any such duty. «,
“(5) Ño funds of the board of education of the city of Grand Rapids may be expended, except pursuant to an official vote of said board, and no individual member of said board is therefore authorized or empowered to incur any expense on behalf of said board. Not being so authorized or empowered to incur any such expense, no member of said board is individually liable for any damages resulting from failure to make proper repairs, or to do away with nuisances which may arise or be created in the construction, operation and maintenance of the public schools of the city of Grand Rapids.”

The board of education of the city of Grand Rapids was organized and exists under Act No. 593, Local Acts 1905, and amendments thereto, as an instrümentality of the State for educational purposes only. Among its enumerated powers and duties (as summarized in the trial court’s opinion) are the following:

“To take, hold, sell and convey real and personal property, including property received from gift, devise or bequest, all as the interest of this school district, being the entire territory of the city of Grand Rapids, and the property and welfare of said school district may require and to be vested with title to all property belonging to said school district; to have power to purchase all property, erect and maintain all buildings and purchase all personal property; to employ and pay all persons, and do all other things in its judgment necessary for the proper establishment, maintenance, management and carrying on of the public schools of the city, or other property of the district, and to adopt by-laws, rules and regulations for its own government and for the control and management of all schools and property; to annually on or before the first Monday of March in each year, make an estimate of the amount of taxes deemed necessary for the ensuing year for all purposes of expenditures within its power; to borrow from time to time money for temporary school purposes in a sum not to exceed $30,000.
“And further that for the purpose of purchasing sites, or erecting buildings, or both, it may borrow such sums of money as it may deem necessary, but which action must be approved by the majority vote of the members elect of the common council; to allow all demands and claims against the board, and which shall be certified to the city controller for payment.”

In sustaining defendants’ demurrer the court pointed out that there was no averment in the declaration that this balustrade or stair railing, upon the inadequacy or defective condition of which all other charges of negligence are based, was not a part of the original plan for the school building, nor that defendants • constructed the same in any other manner than as provided in the plans for the erection of the building; stated it must therefore be assumed for the purposes of the case that the alleged low and defective condition of the balustrade was a part of the original plan, in adopting which defendants “acted in a purely discretionary and governmental capacity, and that there is no statute in this State giving in terms a right of action against these defendants, or any of them in cases like the one at bar, and there is no allegation of a departure from these plans in the construction of this school building.” For which reason the court concluded and held that the declaration does not charge a cause of action against either the board of education or its individual members, sustaining defendants’ demurrers with leave to plaintiff to amend within 15 days. Plaintiff did not amend, but, when the order sustaining said demurrer became absolute, at the expiration of 15 days, brought the matter here for review.

Plaintiff’s declaration alleges it was the duty of the board to erect school buildings, and charges that “defendants themselves” built the building and balustrade complained of. In the absence of any allegation to the contrary it follows as a natural inference that they planned and built it, or caused the same to be done, rather than that they built a building without any one planning it. The presumption that a public construction or improvement was according to a plan adopted or ratified by proper authority is a reasonable deduction and finds support in Owen v. City of New York, 141 App. Div. 217 (126 N. Y. Supp. 38), which holds it to be “presumed that a sidewalk of the city was constructed according to plans and on a grade established by the proper local authorities.” There is no averment in the declaration that the stair railing, or balustrade, or any other part of the building was constructed otherwise than as originally planned, or was defective in strength, workmanship, or quality of material used. The grievance is that it should have been made higher. In City of Lansing v. Toolan, 37 Mich. 152, speaking through Justice Cooley, this court said:

“In planning a public work a municipal corporation must determine for itself to what extent it will guard against possible accidents. Courts and juries are not to say it shall be punished in damages for not giving to the public more complete protection. * * * _What the public have a right to expect of them is, that in the construction of their works after the plans are fixed upon, and in their management afterwards, due care shall be observéd; but negligence is not to be predicated of the plan itself.”

It is contended that the trial court erroneously disposed of the case upon the theory that the school board was but a quasi corporation acting solely as a State agency, while by the local act creating the board of education as a body corporate, vested with power to acquire and hold title to property, sue and ,be sued, etc., it no longer remained a mere instrumentality of the State provided for by general laws applicable to all alike; but became a voluntary, municipal corporation, properly sued in its corporate name as such, and its liabilities should be tested and decided'on that basis. Act No. 593, Local Acts 1905, was an act to revise the charter of the city of Grand Rapids, “including therein also, as a part of such charter, the acts controlling the board of education,” etc. Under title 14, relative to school matters, section 1 provides:

“The city of Grand Rapids, as it may from'time to time exist, shall constitute and be one school district. The board of education of said city shall be its school board. In all respects where not modified by this act, such district and such board shall be subject to and governed by the general school laws of this State from time to time in force.”

We find nothing in this act enlarging the powers of the board beyond that of a pure governmental agency created and restricted in its authority exclusively to the public purpose of education, universally recognized as a distinctive governmental function. If it were a municipal corporation proper, its functions would be both governmental in administering delegated powers of the State and, to a larger extent, municipal, or to govern, manage, and regulate local affairs within the limits of the city, village, or district incorporated, the latter frequently including business activities for profit in operating public utilities in the interest and for the well-being of the community. Not only is no authority given to the school board to exercise municipal functions, but its limited powers are exclusively restricted to purposes of education. Although invested with certain corporate characteristics to more efficiently serve the purpose for which they are created, school districts are not municipalities, nor public corporations in the full sense, but because of their very restricted powers are distinguished and recognized as quasi corporations. That a district is organized under a local act, that the school property of the district is held in its name, and that it may sue or be sued does not enlarge it from a quasi corporation. Attorney General v. Lowrey, 131 Mich. 639 (92 N. W. 289) ; Whitehead v. Board of Education, 139 Mich. 490 (102 N. W. 1028). We cannot, however, reeogiiize fully the urged importance of this distinction as applied to the questions involved here. Touching their immunity from liability in the exercise of strictly governmental functions, the authorities are as a rule applicable to either. This is broadly stated in 13 Mod. Am. Law, p. 229, as follows :

“In its strictly governmental character a municipality closely resembles a quasi corporation, and in this aspect the law for it is practically the same as for a quasi corporation as to the reason and extent of its exemption from liability for injuries suffered by others. It is performing a public function — discharging a governmental duty of the State for the public welfare; and out of this no action can arise unless given by statute.”

Neither can we accept the contention that this demurrer is inappropriate because the declaration avers that defendants used the building or permitted it to be used for public gatherings with and without rent, and in part for the purpose of profit, in support of which Ostrander v. City of Lansing, 111 Mich. 693 (70 N. W. 332), is cited. In that case plaintiff was injured while assisting in the construction of a public sewer in the city of Lansing owing to the negligent manner in which the construction was carried on, as he charged. The defense was urged that the city was in the exercise of a governmental function, but denied on the ground that it was in the prosecution of a private municipal enterprise which could legally be a source of revenue to the city as its charter expressly authorized the city to charge for the use of such sewer and collect annual rental from persons permitted to connect their premises with it by private drains. This school board was granted no such express power to collect revenue. Its grant of power and use of school property was exclusively for educational purposes. No claim is made that the building was otherwise used at the time of the accident, or at any time when required for school purposes. Assuming that the board at some previous time acted in that particular beyond the power granted it by the legislature, such ultra vires act was in no wise connected with the negligence complained of and could not, at least here, affect its status as a quasi corporation under the law creating it, which gives no permission and confers no authority to pursue any course for emolument or pecuniary advantage of the school district, its officers, the municipality in which it is located, or any of its inhabitants.

As applied to those States where liability is not expressly created by statute the overwhelming weight of authority sustains the following concise statement of the general rule upon the question before us:

“The duty of providing means of education, at the public expense, by building and maintaining school houses, employing teachers, etc., is a purely public duty, in. the discharge of which the local body, as the State’s representative, is exempt from corporate liability for the faulty construction, or want of repair, of its school building, or the torts of its servants employed therein.” 2 Shearm. & Redfield, Negligence (6th Ed.), § 267.

This general rule is recognized and well sustained, directly or indirectly, in the following cases from other jurisdictions, in many of which the subject is ably and exhaustively reviewed: Eastman v. Town of Meredith, 36 N. H. 284 (72 Am. Dec. 302) ; Harris v. School District, 72 N. H. 424 (57 Atl. 332); Bigelow v. In habitants of Randolph, 14 Gray (80 Mass.), 541; Hill v. City of Boston, 122 Mass. 344 (23 Am. Rep. 332); Sullivan v. City of Boston, 126 Mass. 540; McNeill v. City of Boston, 178 Mass. 326 (59 N. E. 810); Wixon v. City of Newport, 13 R. I. 454 (43 Am. Rep. 35) ; Weddle v. Board of School Commissioners, 94 Md. 334 (51 Atl. 289); Ernst v. City of West Covington, 116 Ky. 850 (76 S. W. 1089, 63 L. R. A. 652, 105 Am. St. Rep. 241, 3 Am. & Eng. Ann. Cas. 882) ; Clark v. Nicholasville, 27 Ky. Law Rep. 974 (87 S. W. 300); Ford v. School District, 121 Pa. 543 (15 Atl. 812, 1 L. R. A. 607) ; Finch v. Board of Education, 30 Ohio St. 37 (27 Am. Rep. 414) ; Board of Education v. Volk, 72 Ohio St. 469 (74 N. E. 646); Freel v. School City, 142 Ind. 27 (41 N. E. 312, 37 L. R. A. 301); Kinnare v. City of Chicago, 171 Ill. 332 (49 N. E. 536) ; Folk v. City of Milwaukee, 108 Wis. 359 (84 N. W. 420); Lane v. District Township, 58 Iowa, 462 (12 N. W. 478) ; Bank v. School District, 49 Minn. 106 (51 N. W. 814) ; McClure Bros. v. School District, 79 Mo. App. 80; Rock Island Lumber, etc., Co. v. Elliott, 59 Kan. 42 (51 Pac. 894); Wiest v. School District, 68 Or. 474 (137 Pac. 749, 49 L. R. A. [N. S.] 1026).

In Hill v. City of Boston, supra, recognized as a leading case upon that subject, the facts involved practically duplicate those in the instant case. Plaintiff, a boy 8 years of age, who sued by a next friend, while a pupil in the exercise of due care attending one of the public schools in Boston which the city was required to provide and maintain, the school room being on the third floor of the building, fell over the railing of the second flight of stairs and was seriously injured. He offered to show that the railing of the winding stairs was dangerously low; that the city thus negligently constructed this building and maintained it for school purposes in such condition; that the school committee for a long time before the accident knew this building was dangerous and unfit for the purposes of a public school, in the particular mentioned, and had been notified by the teachers of the school of its dangerous condition, which they had promised to repair but failed to do. The opinion was written by Chief Justice Gray. It is historical and exhaustive, reviewing many authorities. The conclusion is reached that an action could not be maintained against the defendants because of the unsafe condition of the stairs in a public school building where the city conducted a school in the performance of a governmental function imposed upon it under the general laws of the State.

In the case of Clark v. City of Nicholasville, supra, the facts were also strikingly similar to those in the instant case. Plaintiff, a little girl 12 years of age, was seriously injured while attending school by falling from the stairway to the first floor in a school building of the city. It was charged as negligence that the banisters protecting the stairway were insufficient, and that other children had fallen over them, which facts were known to the city and the board of education, but they negligently allowed the banister to remain in an unsafe and dangerous, condition until she was injured. A demurrer to the petition was sustained, following Ernst v. City of Covington, supra, in which a child attending a public school was injured by falling from a wall on the school grounds left in a dangerous condition by the school authorities. Becovery was denied in those cases on the ground that defendants were in the discharge of purely governmental duties, acting as representatives of the State, and therefore exempt from liability for improper construction of schoolhouses, or failure to repair them.

Decisions are to be found more or less at variance with the foregoing and to scan the whole field makes manifest that out of the abundance of authority upon the various aspects of this question, which an endless variety of circumstances presents, there is more or less conflict and confusion in the law upon the general subject of the liability of municipal corporations and quasi corporations for tort in the management of public property.

But the issue which confronts us here is not complicated by the intermingling of municipal activities with governmental duties as in case of a municipal corporation proper, nor direct and positive mischief produced by an active trespass upon the person or property of others of such a character as to be beyond mere error of judgment and necessarily leading to the conclusion as a matter of law that injury must inevitably result. The exact negligence upon which it is sought to predicate the liability of. this quasi corporation is faulty construction of a school building used for school purposes and failure to correct the fault, as a result of which plaintiff was injured, and the question is whether our own decisions are in harmony with the applicable general rule, both as to municipal and quasi corporations, as deduced from the prevailing authorities thus concisely stated in 28 Cyc. p. 1309:

“Injuries caused by defects or negligence in or around a schoolhouse cannot be redressed by a civil action against the municipality, as the maintenance of schools is a public function.”

The authorities generally recognize that this rule of exemption from responsibility, as broadly stated, does not extend to positive miehief produced by active misconduct or direct acts in the nature of a trespass which invade the premises of another to his injury. In Ferris v. Board of Education, 122 Mich. 315 (81 N. W. 98), it was decided that a school district may be held liable for injuries caused by snow and ice falling upon, adjoining private premises from the roof of a school building erected by the board in such a manner that the ice and snow must inevitably so fall, without barriers to prevent; and the court there pointed out that:

“The cause of action is not a neglect in the performance of a corporate duty rendering a public work unfit for the purposes for which it was intended (which is the essence of the cause of action here), but the doing of a wrongful act causing a direct injury to the person of the plaintiff, while outside the limits of the defendant’s premises.”

The court also said:

“It is conceded by counsel for plaintiff that municipal corporations are not generally held liable, under the common law, for negligent injuries to individuals, arising from defective plans of construction of public works or failure to keep the same in repair; but it is contended that, where the injury is the result of the direct act or trespass of the municipality, it is liable, no matter whether acting in a public or private capacity. We are satisfied that counsel for plaintiff are right in this contention. The plaintiff had the right to the exclusive.use and enjoyment of his property, and the defendant had no more right to erect a building in such a manner that the ice and snow would inevitably slide from the roof, and.be precipitated upon the plaintiff’s premises, than it would have to accumulate water upon its own premises, and then permit it to flow in a body upon his premises. It has been many times held in this court that a city has no more right to invade, or cause the invasion of, private property than an individual.”

The line of demarcation recognized in that class of cases is again plainly indicated in Alberts v. City of Muskegon, 146 Mich. 210 (109 N. W. 262, 6 L. R. A. [N. S.] 1094, 117 Am. St. Rep. 633), holding that a city is not liable at common law for destruction of private property by fire set by sparks from a steam roller used by the city in repairing a public street. Justice Ostrander, speaking for the court, there said:

“The case at bar is not one of damages resulting from a direct trespass or from misfeasance of the city amounting to a trespass. It is a case of consequential-injury resulting directly from the negligent conduct of the defendant’s agents. In this fact lies the distinction which, in view of former decisions of this court, must be made, and, when made, is controlling.”

In Nicholson v. City of Detroit, 129 Mich. 246 (88 N. W. 695, 56 L. R. A. 601), plaintiff brought suit against the city for injuries resulting from contracting smallpox while in the employ of its board of health, engaged in removing an old pesthouse from land owned by the city. It was contended that the city as owner of the premises was under obligations to furnish him a safe place in which to work and in duty bound to warn plaintiff of hidden dangers. In sustaining a demurrer to plaintiff’s declaration it was said that the action of the city in procuring the land and erecting a hospital upon it was the act of a governmental agent, and the land was owned for public purposes under governmental authority; that in making the changes upon the premises thus owned the board of health was in performance of an imposed duty for the city, which was acting solely in the capacity of a governmental agent, and not liable for injuries received through the negligence of its officers while in the furtherance of a governmental function.

In Attorney General v. Lowrey, supra, in discussing the attributes of a school district, the court said of quasi corporations:

“They consist of counties, townships, school dis~ tricts, highway districts, etc. They are governmental agencies, and it is, to say the least, doubtful if they are in any respect anything else, or have any rights that can be called private. They perform many functions, but these are about and for the * * * policies of the State. * * * The school district is a State agency. * * * The property of the district is in no sense private property, but is public property, devoted to the purposes of the State, for the general good, just as almshouses and courthouses are, although confided to local management, and applied to uses which are in a sense local, though in another sense general.”

In Whitehead v. Board of Education, supra, a demurrer was sustained to plaintiff’s declaration charging defendant with failing to furnish him a safe place to work and safe appliances to work with while in its employment, as a result of which he fell and was injured. Distinguishing the Ferris Case and applying •the principles, of the Nicholson Case to facts alleged in the declaration under consideration, the court said:

“We think the learned trial judge was correct in saying that ‘the affairs of the board of education’are as purely a State function as those of the board of health,’ and that this case could not be distinguished in principle from the case of Nicholson v. City of Detroit, 129 Mich. 246 [88 N. W. 695, 56 L. R. A. 601],. upon which he relied.”

In the second count of plaintiff’s declaration it is alleged that the structure and stairway with its low railing inclosing the “wellhole, or elevator shaft,” became and remained a dangerous nuisance. It is contended by his counsel that applying this name and view to the alleged facts defendants are liable under the principle that a municipal corporation may not construct or maintain a nuisance in the street nor upon its property to the damage of another lawfully in the street or upon its premises, and authorities are cited to sustain this doctrine.

The same contention was made in Kilts v. Supervisors, 162 Mich. 646 (127 N. W. 821) ; where nuisance was charged in a count of plaintiff’s declaration, and it is urged that language used in the opinion of that case lends support to the theory advanced here of liability for maintaining a dangerous nuisance on property owned by defendants resulting in injury to one rightfully upon the premises, with whom they sus-, tained peculiar relations and to whom they owed a duty. In the Kilts Case the death of plaintiff’s intestate resulted from the giving way of a platform at the top of a water tower at the county farm of Kent county, while he was at work on the covering of the tank 80 feet above the ground. It was conceded that the steel beams supporting the platform were too light to support the burden put upon them. The action was against contractors who constructed the tower, the Grand Rapids bridge company, which furnished the material, and the board of supervisors; citing many cases from this and other States, the court found that the board of supervisors could not be held liable in any event because in making required provisions for the poor it was performing a governmental function, and said of plaintiff’s claim of nuisance, in part:

“Counsel make an ingenious and plausible argument that this tower and tank constituted a nuisance, for which all concerned in its erection are responsible, and each and every one of them liable for damages resulting therefrom, whether it was due to negligence or not, under an alleged general rule applicable to nuisances. We think this claim, if sustained, would be an extension of the law of nuisance.”

This is followed by a discussion of the definition and jaw of nuisance, extracts from which are urged as supporting its application here. We are unable to give what was said in that general discussion the application to this case contended for, and cannot discover in it any intent to change or modify by resort to the rules governing the law of nuisance the well-settled general principle that school boards, in their quasi corporate capacity as governmental agencies, are exempt from corporate liability for faulty construction or want of repair of their school buildings. In Folk v. City of Milwaukee, supra, where a demurrer was sustained to plaintiff’s complaint alleging that the death of a pupil from poisoning by sewer gas was imputable to defendant’s negligence in allowing the sewer of the school building to become clogged and it was charged, inter alia, that defendant was guilty of creating and maintaining a dangerous nuisance, the court, in discussing the latter contention, said:

“We do not lose sight of the fact that there is another principle frequently approved by this court, namely, that a municipal corporation may not construct or maintain a nuisance in the street or upon its property to the damage of another. * * * In the present case, however, there can be no doubt that in the management of the schoolhouse the city officials were acting in a purely governmental capacity, as far as their relations to the deceased child were concerned.”

No statutory duty is imposed upon the members of this board individually. It is not charged that any particular one acted or assumed to act as an officer, agent, or representative of the board, or in any different capacity from the other. They had no power and were charged with no duty except to act together in a quasi corporate capacity. The negligence which all defendants are charged with involved malfeasance and nonfeasance in their governmental duties connected with the construction and maintenance of this schoolhouse. We are impressed that if the board as such is not liable its individual members are not liable; no individual liability is created by statute.

“Liability for negligence and suit therefor against the individual officer can only exist by virtue of an express statute creating the individual duty of such officer, and also authorizing the maintenance of a suit for failure to perform such duty.” Plumbing Supply Co. v. Board of Education, 32 S. D. 270 (142 N. W. 1131).

The judgment sustaining defendants’ demurrer is affirmed.

Stone, C. J., and Kuhn, Bird, Moore, Brooke, and Person, JJ., concurred. Ostrander, J., did not sit.