author: Moore, C. J.

text:
    OLMSTEAD v. MEYERS.
    Equity — Mortgages, Foreclosure of — Enrollment—Evidence.
    It is to be presumed that officers of the court perform their duty, and that proceedings taken by them are regular; and hence, on an attempt of complainant, after foreclosure of a mortgage, to secure and enforce a decree for deficiency, the only evidence of enrollment being the entries on the chancery oalendar, because of the disappearance of the files, entries thereon showing the report of the commissioner, of the sale, and. confirmation of sale, and enrollment of the files on the same date, it was erroneous to deny complainant relief on the ground that the decree of foreclosure had been enforced before enrollment.
    Appeal from Berrien; Bridgman, J.
    Submitted October 10, 1912.
    (Docket No. 31.)
    Decided November 8, 1912.
    Bill by Melbourne H. Olmstead against William 0. Meyers and another to foreclose a mortgage. Complainant filed a petition for a deficiency decree, which was dismissed. Petitioner appeals.
    Reversed.

      James 0\Hara {Chester P. O’Hara, of counsel), for complainant.

      Coolidge, Biford & White, for defendants.
   Moore, C. J.

February 10, 1902, the circuit court in chancery handed down a decree of foreclosure in a suit between the parties hereto, decreeing that there was due to the complainant from defendant William C. Meyers, upon certain notes and mortgages, the sum of $5,119.24, and ordering the defendant to pay this sum on or before February 20, 1902, and in default the mortgaged premises be sold, and containing the usual orders in a foreclosure. The decree also provided that, if upon such sale there should be a deficiency, the said commissioner should specify the amount thereof in his report of sale—

“And that on the coming in and confirmation of said report the defendant William C. Meyers, who is hereby decreed to be personally liable for the debt secured by said mortgage, pay to the complainant the amount of such deficiency, with interest thereon from the date of such report.”

Mr. Lawrence C. Fyfe was the solicitor. He died in the fall of 1909. In January, 1912, complainant filed a petition, praying that defendant William 0. Meyers be decreed to pay the deficiency. An answer was interposed to said petition, and a hearing had in open court.

The only question before the court was the right of the complainant to a decree for the deficiency and an execution thereon. All the files in the original foreclosure case were missing. The court records were introduced in evidence, and consisted of the chancery calendar entries, the decree of foreclosure, and the • order confirming report of sale by the commissioner. The complainant also introduced in evidence the record of a deed made by the circuit court commissioner on a sale of the mortgaged premises on April 7, 1902, wherein the complainant was the purchaser and grantee, and the consideration named was $5,000; also a memorandum found in the office files of Mr. Fyfe, complainant’s solicitor at the time, which was in his handwriting and was as follows:

Amt. due at sale, decree February 10, 1902______$5,119 24
Interest from Feb. 10, 1902, to date of sale, April 7, 1902, 2 mo. less 3 days...................... 56 71
Taxed costs...............-..................... 106 10
Costs of sale, including printer.................. 17 95
$5,300 00
April 7, 1902. Bid.............................. 5,000 00
Deficiency...-.................................. $300 00

Complainant was produced and sworn as a witness, and testified that no part of the deficiency had ever been paid. No proofs were introduced by the defendant. On February 27, 1912, the circuit judge denied the prayer of the petition, and dismissed the same, with costs, from which decree the complainant appeals to this court.

Among the entries upon the chancery calendar are the ' following:

“April 7. Filed report of Charles W. Stratton, circuit court commissioner.
“April 7. Entered order confirming report of sale. c F,’ page 570.
“April 7. Enrolled files.”

The'contention of the solicitors for defendant is stated in the brief as follows:

“ In the absence of other testimony we must presume that the sale had been made and the report of the sale filed before the decree and files were enrolled. Under these circumstances all proceedings based upon the report of sale would be void, because in violation of Chancery Rule No. 24, providing ‘ no process shall be issued or other proceeding had on any final decree to enforce the same, until the same is duly enrolled pursuant to the statute.’ ”

It is evident the trial court accepted this view of counsel. In doing this we think he was wrong. It will be observed that the entries all bear the same date. In the absence of evidence to the contrary, it has been repeatedly held by this court that it is presumed an officer does his' duty and that his proceedings are regular. Clark v. Axford, 5 Mich. 182; Peck v. Cavell, 16 Mich. 9; Blair v. Compton, 33 Mich. 414; Lymburner v. Jenkinson, 50 Mich. 488 (15 N. W. 562); Love v. Wood, 55 Mich. 451 (21 N. W. 887); Knickerbocker v. Wilcox, 83 Mich. 200 (47 N. W. 123, 21 Am. St. Rep. 595); Coveney v. Phiscator, 132 Mich. 258 (93 N. W. 619).

What we have said upon this point covers the question presented about the taxation of costs.

The decree is reversed, and one may be entered here for the $300 and interest, and costs of both courts.

Steere, McAlvay, Brooke, Kuhn, Stone, Ostrander, and Bird, JJ., concurred.


source: Caselaw Access Project

author: Stone, J.

license: Public Domain

text:
    GOOD ROADS CONSTRUCTION CO. v. PORT HURON, ST. CLAIR & MARINE CITY RAILWAY CO.
    1. Highways and Streets —Steam Roller — Motor Vehicles— Negligence — Statutes—Contributory Negligence.
    Violation of the statute requiring steam engines, etc., operated on the public highways to send ahead a person to give warning of the approach of the vehicle, etc., constitutes contributory negligence, preventing the recovery of damages for injury done to a steam roller in a collision at a crossing of defendant electric railway company. Act No. 71, Pub. Acts 1903. 2 How. Stat. [2d Ed.] § 4235 (amending 2 Comp. Laws, §5543).
    2. Negligence — Trial—Jury—Evidence.
    Except in case of a view of the premises by the jury, testimony relative to changes made at a crossing at which an aocident occurred is inadmissible.

    3. Trial — Misconduct of Counsel — Saving Questions for Review.
    To review improper remarks of defendant’s attorney on the trial of a negligence case, a request for a ruling or motion to reprimand counsel or take some other appropriate action is necessary.
    4. Negligence — Notice—Prior Occurrences.
    It was not sufficient or competent evidence of notice to defendant that plaintiff’s apparatus was liable to be caught and stop on the crossing so as to require the reduction of speed in running defendant’s street cars, because on previous occasions the steam roller and other equipment had stopped on the tracks at the crossing and prevented the car from passing._

      5. Same — Gross Negligence.
    The court correctly charged the jury that if they found defendant guilty of ordinary negligence only, not wilful or wanton and reckless conduct, their verdict must be for defendant, but that plaintiff might recover if defendant’s motorman was guilty of gross negligence; that they might consider the testimony as to the distance at which the road roller could be seen by the motorman, the degree of curve in the track, the blowing of the whistle, the distance in which a car running 50 miles an hour could be stopped; that gross negligence meant intentional failure to perform a manifest duty in reckless disregard of the consequences as affecting the life or property of another, and implied, also, thoughtless disregard of consequences, without the exercise of any effort to avoid them.
    Error to St. Clair, McKay, J., presiding.
    Submitted October 17,1912.
    (Docket No. 140.)
    Decided November 8, 1912.
    Case by the Good Roads Construction Company against the Port Huron, St. Clair & Marine City Railway Company for damages to plaintiff’s machinery and property. Judgment for defendant. Plaintiff brings error.
    Affirmed.

      Burt D. Cady (Clifford W. Crandall and Frank B. Schell, of counsel), for appellant.
    P. H. Phillips {Joseph Walsh, of counsel), for appellee.

       The authorities on the question of the admissibility of evidence of condition, before and after accident, of property whose defects are alleged to have caused injury, are collated in a note in 32 L. R. A. (N. S.) 1084.

   Stone, J.

This is an action to recover the value of the steam engine road roller belonging to the plaintiff, which it claims was struck and destroyed by a car of the defendant under the following circumstances:

On September 14, 1909, the defendant was engaged in operating an interurban railway from Marine City to the city of Port Huron. Said railway crossed a public highway, running nearly east and west, situated in the township of Port Huron, St. Clair county, being the first highway north of a certain stop known as Greenwood on said railway. The location of the crossing and the distance from the center thereof to certain specified points along the said railway are shown on the annexed plan or diagram.

The plaintiff was engaged in the business of constructing gravel and macadam roads, and, at the date above mentioned, was constructing such a road at a hamlet called Marysville, located a short distance south of said crossing. It hauled its material by means of its engine road roller with four dirt wagons attached, making an outfit about 100 feet in length over all. This conveyance traveled along the highway at from 1^ to 2 miles an hour; that being its utmost speed. About 1 o’clock in the afternoon of the day in question, plaintiff’s said engine road roller, with the four dirt wagons attached, approached said crossing from the east, in the sole charge of its engineer, one Saul Tice. He ran the engine up to within five or six feet of the east rail of the defendant’s track, when he stopped. He got off the rear of the engine, and walked in the neighborhood of 25 or 30 feet to the track. He went forward, and stood in front of the engine. He was close enough to the east rail so that he got a good view of the track. He looked up and down the track, and could see beyond Greenwood on the south. He saw no car coming in either direction, and heard no whistle. He then walked back, got up on the engine, blew the whistle, and started the train ahead. When the front roller of the engine was on the west rail of the track, he saw a car coming from the south beyond Greenwood waiting room, about the time it came around a slight curve. He testified that he immediately blew his whistle, threw the reverse lever, and jumped out of the south side of the engine, and that defendant’s car hit the engine about the time he landed from his jump. He testified that, when he first saw the car, it was so close to him that he did not have time to back his engine a sufficient distance to clear the track. The width of the space inside the track or rails was 4 feet inches, and the bearing on each rail was 2£ inches. It was conceded that the defendant’s car was running at the rate of 50 miles an hour at the time it came around the curve, and also that for at least a third of a mile south of this crossing the defendant ran over its private right of way. The car violently struck the road roller, throwing it a distance of 49 feet to the northeast, as indicated on the diagram. It was conceded at the trial that the road roller was practically demolished, and was, after the injury, of no value except for scrap iron. It appeared that plaintiff’s engineer had been employed at said work for some months, and was familiar with the location of defendant’s track and the crossing, and with the fact that both local and limited cars were frequently run over the line. The evidence showed that the motorman gave a whistle at about the same time the plaintiff’s engineer sounded his whistle, and there was testimony that the motorman applied the air brake on the car. It being conceded that the car when it came in view was running at the rate of 50 miles an hour, it would travel about 74 feet a second, and the road roller’s rate of speed would be from 2 to 3 feet per second.

The trial judge ruled, and instructed the jury, that the plaintiff was guilty of contributory negligence in attempting to cross the track in the manner in which it did, and in the handling of the outfit, and submitted to the jury the question whether the defendant was guilty of gross negligence in the operation of the car. It appeared that plaintiff’s engineer was alone, and unattended by any other person in the operation of the roller and outfit.

Considering the length of plaintiff’s outfit and its slow movement, it seems clear to us that the trial court did not err in holding that it was guilty of contributory negligence in the manner in which it attempted to cross the track. Our legislature has sought to protect the public in the use of vehicles or trains such as the plaintiff was operating. Our statute (see Act No. 71,Pub. Acts 1903, 2 How. Stat. [2d Ed.] § 4235), which regulates the use of steam engines, steam wagons, and other vehicles which are in whole or in part operated by steam on the public highways of this State, makes it unlawful to permit or use the same to pass over, through, or upon any public highway, road, or street, unless such owner or owners, agent, servant, or employe shall send before the same a person of mature age at least 10 rods, and not more than 40 rods, in advance, to notify and warn persons traveling upon or using said highway or street with horses or domestic animals of the approach of such carriage, vehicle, or engine. Considering the time consumed by plaintiff’s engineer in returning from the track, and getting upon and starting his engine, and also considering the rapidity with which the defendant’s car was running, it is not strange that a collision took place which might have been avoided had the plaintiff exercised ordinary care and prudence by the use of a flagman or other precaution, as above indicated, or had he remained upon the engine and reversed the motion of the train, for it is undisputed that, when he first saw the car, it was from 700 to 800 feet away, and would require at least ten seconds to reach the crossing, whereas in two or three seconds the engineer could have backed his train off the track. But it may be said that the engineer had not time to act deliberately in this latter regard. However, it seems very clear to us that had he exercised the prudence and care which the circumstances required, by calling to his assistance persons to guard the track while he was crossing with his slow-moving outfit, not only would the plaintiff’s property have been saved, but the life of the motorman also, which seems to have been sacrificed by the want of proper care and management on the part of the plaintiff.

The jury returned a verdict for defendant, and judgment was entered accordingly, and the plaintiff has brought the case here upon writ of error, assigning numerous errors to the rulings of the court, the refusals to charge, and the charge of the court.

It is the contention of the defendant that the evidence did not warrant the submission of the case to the jury upon the question of gross negligence of the defendant. We do not agree with this claim, and think the court did not err in submitting the question to the jury.

There are 33 assignments of error in the record, but appellant’s counsel discuss the alleged errors under the following subheads:

(1) The refusal of the court to permit the plaintiff to show changes in the premises.

(2) Failure to reprove counsel for using improper language.

(3) Refusal to permit evidence of the narrow escape from prior collisions to be considered as tending to establish notice.

(4) Permitting defendant’s assistant superintendent to testify that a curve is not a curve within the meaning of defendant’s rules, and refusing to charge on this point as requested.

(5) Defendant’s negligence.

(6) Alleged contributory negligence of plaintiff.

(7) Refusal to direct a verdict for plaintiff.

(8) Improper statement as to the elements of plaintiff’s case.

(9) Gross negligence.

(10) Prejudicial repetition of the sentence: “Plaintiff cannot recover,” and other like phrases.

Upon the first point it seems the plaintiff sought to show changes in the premises after the accident. Clearly this was immaterial, except perhaps in the event that the plaintiff had received an order from the court permitting the jury to view the scene of the accident. No direct request was made of the court for such view. If such request had been made and refused, error could not have been assigned thereon; the whole matter resting in the sound discretion of the court. Dupuis v. Traction Co., 146 Mich. 151-162 (109 N. W. 413). We do not think there was any reversible error in the ruling of the court upon this subject.

Failure to reprove counsel for using improper language. This question arose in the cross-examination of the witness Charles A. Bailey, sworn on behalf of the plaintiff. In his direct examination it . appeared that he went to the crossing with a Mr. Moore about an hour after the accident, and took some views upon the track, placing Mr. Moore at the crossing while the witness went south. On his cross-examination he testified as follows:

“ I made an observation about 30 feet south of the station (Greenwood station). This point is not shown on the map. I stopped there because it was the farthest point south I could have a perfect unobscured view of Mr. Moore standing on the crossing.
“Q. From that point you could see Mr. Moore on the crossing, but from any other point farther south it would be impossible to see, or else very difficult, is that true ?
‘‘‘A. Well, you could see the road roller further south, but I couldn’t see Mr. Moore any further south, and that is the reason I did not go any farther.
“Defendant’s Counsel: Now, if your honor please, I ask to have this answer as stated struck out, and I take exception to it. This man is not an ordinary witness. He is the head and shoulders of the company, a man experienced in law, and he knows that that answer to that question is improper, and I desire to take exception to it.
“Q. Now, I ask you to answer this question?
“Plaintiff’s Counsel: I desire to take an exception.
A. I did answer your question, that that is the farthest southern point I could see Mr. Moore.
‘ ‘ Plaintiff’s Counsel: I desire to take exception to the statement of Mr. Walsh that this witness was the head beetler of this company, and that he was not an ordinary witness, and that he was experienced in law, as being improper; there being no evidence to support any such statement.
Defendant’s Counsel: Well, the jury will judge of that, I guess.
‘ ‘ Plaintiff’s Counsel: And an exception to that remark.”

It will be observed that the court was not called upon by motion, or otherwise, to either reprimand counsel, or take any other action, or make any ruling thereon. Under repeated decisions of this court, relating to remarks of counsel, such exceptions are of no validity. It is not necessary to cite our numerous decisions upon this point. Neither do we think the remark of counsel was of such a serious or prejudicial nature as is contended for by appellant.

Appellant next urges that the refusal of the court to permit the witness Tice to give testimony relative to some prior occurrences as tending to show notice to the defendant was error. There is some question whether the record discloses any ground for this exception. Objection was made by defendant’s counsel to the question relating to such claimed prior occurrences on the ground that it was immaterial, and, even if it occurred, it would not be notice to the company to the extent claimed by the plaintiff. The ruling of the court was that the witness could not be examined as to the stopping of the car under the circumstances claimed for the purpose of fixing notice on the company. Counsel took no exception to this ruling. Counsel for plaintiff then proposed* to show by the witness that on three different occasions a car did stop, and the court again held that this could not be shown for the purpose of fixing notice upon the company. No exception was taken to this ruling. Counsel for plaintiff then asked the court if he would be permitted to show that the company could stop and control their cars between the crossing and the curve. After a colloquy between the court and counsel the court stated:

“You may show that there was an obstruction on the track, and they did stop. If it is necessary in that particular, you may ask the witness if there was an obstruction on the track, and he will answer the question by yes or no, and ask him if they did stop the car before reaching the obstruction.”

This latter statement by the court was excepted to by appellant, after which the witness proceeded to testify upon the subject. Was this evidence admissible as tending to show notice to the defendant F It is the position of appellant that the nature of these claimed occurrences was such as would likely lead to discussion and report to the company. We do not think that the cases cited by appellant sustain the position claimed. Where there are defects that have been of long standing, they have been allowed to be shown.

In Smith v. Sherwood Township, 62 Mich. 159 (28 N. W. 806), the action being one to recover damages because of a horse becoming frightened at a hole in the planks of a bridge, it was held that the plaintiff might show that it had existed for a considerable length of time; and this court held that evidence introduced showing instances of other horses shying at the hole tended to show that knowledge of such conditions was brought to the attention of the township authorities. A like question arose in Moore v. City of Kalamazoo, 109 Mich. 176 (66 N. W. 1089), which was an action against the city for injuries received by stepping into a hole in a defective sidewalk. Evidence that there were other defects in the immediate vicinity, and that other persons had stepped into the same hole in the walk, was held admissible as bearing upon the question of notice. We think the instant case can readily be distinguished from the cases cited. There was here no hole or obstruction which would be a continuing notice of the dangerous condition. The mere occurrence of the car having been stopped on prior occasions would not probably be of sufficient importance to be reported to the company, or cause any comment, or operate as a notice. Because this same plaintiff on-a prior occasion was crossing the track of the defendant at this particular place with an equipment that was so imperfect as to cause its stoppage on the railroad crossing, it can hardly be said that because of that fact the defendant should be charged with notice, and therefore required to operate its cars along the stretch of track approaching this crossing at a decreased rate of speed for the reason that such condition was likely to recur. But, as we have already said, the testimony offered was received, but not used for the purposes of notice. Neither are we able to find that the court was requested to charge the jury upon that subject by the appellant.

It is claimed that there was error in permitting the defendant to explain the meaning of its rules by parol evidence. The rule referred to was defendant’s rule 295, reading as follows:

“Enter slowly, all curves, special work, temporary tracks, subways and viaducts; run slowly over them and leave them slowly.”

It is claimed by appellee that this rule did not apply to the running of interurban trains in the country, but related to the operation of its cars in the city of Detroit; the rule having been labeled “ The Rules of the Detroit United Lines.” The assistant superintendent testified that the defendant had curve signs at all curves that were designated curves, and that the slight curve shown upon the diagram here was not called a curve within the meaning of railroad terms, and within the meaning of the rules of the defendant. We think that the witness was here testifying to a fact as to the application of its rules to a certain condition. We think it was competent for him to state that it was not intended to limit the speed of cars while passing over this particular portion of the track, or any other portion where the deviation from a straight line was so slight. The witness did not attempt, as is claimed by appellant, to give the meaning of the word “ curve,” but was only stating its application to a portion of the road. The reason for the rule must be apparent. Its only purpose must have been, and is, to avoid the danger of high speed on such portions of the tracks as curve sufficiently to make fast running over them hazardous.

We have examined with care the remaining subheads and assignments or error relating to the requests of appellant to charge and the charge of the court. We find no reversible error in this branch of the case. While there is some confusion in the charge, yet it distinctly appears that the court submitted the case to the jury upon the subject of gross negligence. We think that the language of the court with reference to the definition and subject of gross negligence cannot justly be complained of by the appellant. The court, among other things, charged the jury as follows:

“If, therefore, you find from the evidence that the defendant, if guilty of anything, was only guilty of ordinary negligence, and was not guilty of wilful or wanton and reckless conduct, your verdict should be for the defendant, as the rule is that, if the plaintiff is guilty of negligence contributing to the destruction of its property, it cannot recover unless the defendant was guilty of gross negligence, and, under the law of this State, it is contributory negligence for a person to propel and cross a railroad track with a traction steam road roller with a train of four wagons, in all 100 feet in length, and requiring some minutes to cross, without sending a man up and down the track to flag approaching cars. * * * Now, gentlemen, this is a question for you to determine from all the facts and circumstances in evidence in the case. You may consider the evidence in reference to the distance at which the road roller could be seen by the defendant company; the degree of the curve in the track; the blowing of the whistle; the distance in which a car can be stopped running at 50 miles an hour; the distance the car was from the steam roller when the defendant company anticipated, or should have anticipated, danger, and its ability or inability to avoid the collision after it anticipated, or should have anticipated, danger. So the plaintiff cannot recover in this case unless you find by the fair preponderance of the evidence, as above described to you, that injury occurred by reason of the gross negligence of the defendant. But it is not meant that the motorman must have actually intended to do the particular wrong complained of. By gross negligence is meant intentional failure to perform a manifest duty in reckless disregard of the consequences as affecting the life or property of another, and also implies a thoughtless disregard of the consequences without the exercise of any effort to avoid them. Unless, therefore, you find from the evidence that the motorman after he saw plaintiff’s steam roller upon the track, and when he had no reason to believe it would vacate the track, before the car would reach the highway crossing did nothing to prevent the collision, but ran on in reckless disregard of the consequences, you cannot find a verdict for the plaintiff, and must find for the defendant.”

We are of opinion that the question of gross negligence was here fairly submitted. Labarge v. Railroad Co., 134 Mich. 139 (95 N. W. 1073); Knickerbocker v. Railway Co., 167 Mich. 596 (133 N. W. 504).

We find no reversible error in the record, and the judgment of the circuit court is affirmed.

Moore, C. J., and Steere, McAlvay, Brooke, Ostrander, and Bird, JJ., concurred. Kuhn, J., did not sit.


author: Brooke, J.

text:
    GRADYSZEWSKI v. DETROIT UNITED RAILWAY.
    1. Street Railways — Operation of Cars — Negligence.
    Evidence that plaintiff, a boy of seven years and upwards, crossed defendant’s car tracks in front of a oar approaching about 100 feet away, that his cap fell off in the middle of the tracks, and as he stopped to pick it up, the car struck and injured him, that as he stooped to recover his cap it was 12 or 14 feet away, was insufficient to show negligence in the operation of the car or excessive speed.
    2. Same — Personal Injuries.
    A motorman is not bound to anticipate that a pedestrian crossing the track will place himself in a position of danger, but may assume that if he is able to cross safely he will do so, if not, that he will remain in safety: it is impracticable to require that the car should be checked whenever persons approach the track; only when the motorman becomes aware of peril is he required to adopt precautions to avert injury.

    Error to Wayne; Murfin, J.
    Submitted October 18, 1912.
    (Docket No. 69.)
    Decided November 8, 1912.

      Case by John Gradyszewski, Jr., by his next friend, against the Detroit United Railway for personal injuries. A judgment for defendant on a verdict directed by the court is reviewed by plaintiff on writ of error.
    Affirmed.

      August Cyrowshi (Felix A. Doetseh, of counsel), for appellant.

      Corliss, Leete & Joslyn and Frederic T. Harward, for appellee.

       As to right of motorman to assume that person on track will get out of way, see note in 21 L. R. A. (N. S.) 880.
      Right of motorman to assume that no one will attempt to cross track so close in front of car as to render a collision probable, see note in 5 L. R. A, (N. S.) 1059.

   Brooke, J.

Plaintiff, a boy seven years and five months of age at the time of his injury, was proceeding southerly along the east side of St. Aubin avenue in the city of Detroit. He desired to cross Forest avenue, upon which defendant operates a double-track electric line. The paved portion of Forest at this point is 40 feet wide. The distance from the north curb on Forest avenue to north rail of defendant’s tracks is 12.65 feet. As plaintiff left the curb and started to cross the street, he saw one of defendant’s cars approaching from the east. The car was then a little east of the alley, which is 100 feet east of the east line of St. Aubin avenue, where the plaintiff was. When plaintiff reached the middle of the track upon which the car was approaching, his cap fell off. He attempted to recover it, and while so doing was caught and run over by the car, sustaining injuries for which recovery is sought.

Plaintiff testified that he had been going to school about a year, that he was familiar with this crossing, and knew that cars ran east and west on Forest avenue. On cross-examination he further testified:

“Q. You saw the car coming down, then, on the north track ?
“A. Yes, sir. It was going kind of fast. I know it was going kind of fast, because I seen it coming. I didn’t see any cars coming in the other direction. That was the only car I saw.
“Q. You saw that coming. It was about opposite the alley ?
“A. Yes, sir.
“Q. You were then on the curb on the corner of Forest and St. Aubin ?
“A. Yes, sir.
“Q. How far was the curb from the track that the car was on ?
“A. Oh, about six or seven feet.
“Q. And this car was coming — was it coming very fast ?
“A. Yes; it was going pretty fast. I didn’t, it didn’t go very fast, but it was going kind of fast.
“Q. You walked along in front over the track ?
“A. No; I didn’t walk over the track.
“Q. What did you do ?
“A. I walked up and I happened to stoop down and pick up my hat.
The Court: I understood him to say that he walked onto the track, not over it.
“Q. You walked onto the track?
“A. Yes; onto the track.
“Q. You didn’t go right onto the track, did you ?
“A. Yes, sir; I went onto the track that the car was coming on.
"Q. Did you go right to the middle of the track ?
“A. Yes; in the middle. I don’t know how my hat happened to fall off. I don’t remember if it was windy or not. My cap fell off.
“Q. Why didn’t you go and leave your hat there in the street ? You knew the car was coming fast, didn’t you ?
“A. Yes, sir; I did. I thought I would get past.
“Q. How far was the car from you when your hat fell off?
“A. It was about a little — half ways of that house.
“Q. You know how much 10 or 15 feet is, don’t you?
“A. Yes, sir.
“Q. Speaking of feet, about how far was the car from you when your cap fell off ?
“A. Oh, it was about 12 feet.
“Q. It hadn’t slowed up any, had it?
“A. No; it didn’t slow up.
"Q. When the car was about 12 feet from you, you went to get your hat which was in the middle of the track ?
“A. Yes, sir.
“Q. You had been in the middle of the track before, hadn’t you, or your hat wouldn’t have been there, would it?
“A. No; it wouldn’t have been there.
“Q. Your hat dropped off, and then you walked back.
“A. No; I didn’t go back at the same time. I picked it up. It fell off frontways.
“Q. And the car was about 12 feet away from you when you picked the cap up ?
“A. Yes; may be about 14, I don’t know.
“Q. Twelve or 14?
“A. Yes, sir.
“Q. Didn’t you know that the car that near — you knew if you got in front of a car it would hurt you, didn’t you ?
“A. Yes; but I knew I would get past it.
“Q. You didn’t get past it, did you?
“A. No; it must have started faster.
"Q. Did you notice it start up faster ?
“A. No; I didn’t notice it.
“Q. When you stooped over, was your back to the car or were you facing the car ?
“A. I was in the middle of the track.
“Q. Your back to the car ?
“A. Yes; I was this way.
“Q. You were not looking at the car when you picked your cap up ?
“A. Yes; I was looking at it, picking up my hat.
“Q. Were you looking at your hat or at the car ?
“A. At the car. Then I looked at my hat and picked it up.
“Q. Which did you look at first — the car or your hat ?
“A. The car.
“Q. Suppose the car was coming about here, where the jury is — you turned around this way ?
“A. Yes, sir.
“ Q. You were back to the car ?
“A. No; towards the car, I looked.
“Q. Were you facing the car when you picked it up ?
“A. Yes; I faced it — not all. I faced, as though the car was coming from that way, and I faced. I tried to pick my hat up.
“Q. You stooped over that way in front of the car ?
“A. No; I had my face towards the car, and I was then, I was standing this way, looking at the car that way, and trying to pick up my hat.
"Q. Had you your hat in your hand when the car struck you ?
“A. No; I don’t remember that, if I had it in my hand ?
“Q. How did you know where your hat was; were you groping around to find your hat ?
“A. Yes, sir; I was looking.
“Q. You couldn’t look at your hat and the car, the same time, could you, John ?
“A. No.
“Q. How did you arrange that ?
“A. I seen my hat fall off.
“Q. You knew your hat was falling off, you felt that ?
“A. Yes, sir.
“Q. You say you didn’t look at the hat while you picked it up, you looked at the car ? Is that right ?
“A. Why yes; I looked at the car.
“Q. But you didn’t look at the hat ?
“A. Yes; I looked at the hat too.
“Q. The hat was on the pavement, and the car was along about 12 feet from you ?
“A. I looked at the car first, then at the hat.
“Q. You looked at the car first, then at the hat ?
“A. Yes; then at the hat.
“Q. You were not looking at the car when you were struck ?
“A. Then, no; because I couldn’t.
“Q. You say, when you first saw the car, it was right opposite the alley ?
“A. Yes, sir.
“Q. You walked along, and the car kept right along, coming towards you ?
“A. Yes, sir.
“Q. You were going across the track ?
“A. Yes, sir.
“Q. You intended to get across the track, didn’t you?
“A. Yes, sir.
“Q. Isn’t that right ? When you got in the middle of the track, your hat fell off ?
“A. Yes, sir.
“Q. And you didn’t go on; but then the car was 12 feet from you ?
“A. Yes, sir.
“Q. Coming along pretty fast ?
“A. Yes, sir.
“Q. You saw the car ?
“A. Yes, sir.
“Q. Looked at the car coming along pretty fast, 12 feet from you, and you stooped over to pick up your hat ?
“A. Yes, sir.
“Q. That is all you remember ?
“A. Yes, sir; that is all. I don’t remember how far the car went after it hit me, because I never seen anything.”

On redirect:

“Q. When you say 12 or 14 feet, John, how far do you think it is ? Can you tell me here in this room on the floor ?
“A. It is further than that there side.
“Q. Here ?
“A. Yes; it is further than that.
“Q. How far do you think 12 feet is — about here ?
“A. Yes; about that far.
“Q. That is the distance you saw the car when your hat fell off ?
“A. Yes, sir.”

On recross:

“Q. How much is a foot? Put your hands up for a foot.
“A. About that much.
“Q. You think 12 of those would take you down there where he is ?
“A. I don’t know the difference. I never measured.
“Q. What?
“A. I never bothered myself measuring.
“Q. You said 10 or 12 feet.
“A. I don’t know how much it is.
' ‘ Mr. Doetsch: He said 12 or 14.
“Q. If the car was 12 or 14 feet, and was down where Mr. Cyrowski stood, you were pretty slow in picking up your hat, weren’t you ?
“A. No; I wasn’t slow. I took it as fast as I could.
Q. And yet the car came down on you in that distance ?
“A. Yes, sir; struck me.
“Q. You were looking at the car all the time ?
“A. No; not looking. I looked at the car. Then I went and took a chance at my hat.
“Q. That is how you got hurt ?
“A. Yes, sir.”

Upon this testimony the court directed a verdict for defendant, holding that plaintiff had failed to show any negligence on the part of the defendant company. A motion for a new trial was thereafter denied, and error was assigned upon such denial.

The only error argued in the brief for appellant is that the court erred in directing a verdict.

We are of opinion that the direction was warranted by the testimony. There is nothing in the record to indicate that defendant’s car was operated at an excessive rate of speed or in any manner negligently.

It is obviously impossible to demand that motormen when running at proper speed should check their cars whenever they see a pedestrian in front approach the track. If the distance is sufficient for a crossing to be made safely, the motorman has the right to assume that the pedestrian will so cross, if the distance is insufficient lie has a right to assume that the pedestrian will maintain a position of safety at the side of the track. The motorman is not bound to anticipate that the pedestrian will place himself in a place of danger; indeed, he has the right to assume the contrary. When, however, he becomes advised, or in the exercise of due care should become advised, of the peril of the pedestrian, it is his duty to use all means within his control to avert injury. When plaintiff’s hat fell off and he attempted to recover it, the car was so close to plaintiff that tó stop it before collision was clearly impossible. This conclusion is based upon the assumption of the truth of plaintiff’s testimony as to the rate of speed. Had plaintiff’s hat not fallen off and had he not stopped to recover it, he could have crossed the track in safety. The motorman could not anticipate that this would occur, nor was he bound to operate his car so as to be prepared for a contingency so remote. The facts in this case bring it within the principle of several of our own decisions. Fritz v. Railway Co., 105 Mich. 50 (62 N. W. 1007); Merritt v. Foote, 128 Mich. 367 (87 N. W. 262); Coessens v. Railway, 136 Mich. 481 (99 N. W. 751); Rollo v. Railway Co., 152 Mich. 77 (115 N. W. 727); Stenzhorn v. Railway Co., 159 Mich. 82 (123 N. W. 621). No negligence on the part of defendant having been shown, the question of plaintiff’s contributory negligence becomes unimportant.

The judgment is affirmed.

Moore, O. J., and Steers, McAlvay, Kuhn, Stone, Ostrander, and Bird, JJ., concurred.


text:
    EVANS v. WOODLEY.
    Mechanics’ Liens — Contracts—Performance—Breach.
    Complainant was not entitled to a mechanic’s lien under a contract providing that defendant should pay a stipulated sum when the work should be performed and accepted, upon a showing that he abandoned, the work before he completed the contract, that to complete it would cost §110, and that the actual cost of completion was $250, and that defendant never accepted complainant’s work.
    Appeal from Wayne; Donovan, J.
    Submitted October 10,1912.
    (Docket No. 19.)
    Decided November 8, 1912.
    Bill by John Evans against Jennie N. Woodley for the enforcement of a mechanic’s lien. From a decree for complainant, defendant appeals.
    Reversed.

      Ralph M. Tate, for complainant.

      Frank D. Andrus, for defendant.
   Brooke, J.

The hill of complaint in this case is filed to enforce a mechanic’s lien. The contract between the parties contained the following clause:

“ The party of the first part, for and in consideration of the fulfillment by the said party of the second part of the covenants and agreements of the said party of the second part herein contained, does hereby covenant and agree to pay or cause to be paid to said party of the second part the sum of $495, when the work is completed and accepted by the said party of the first part.”

Complainant introduced evidence tending to show that he had never fully completed his contract, and that defendant had not accepted the work. He further offered the evidence of two contractors, who examined the job after he abandoned it. They testified that to complete the job according to the contract would cost $110. Under these proofs defendant moved the court for a decree dismissing the bill. This having been denied, defendant offered evidence tending to show that to complete the contract she had been obliged to pay the sum of $250.

We are of opinion that the bill should have been dismissed. Here is an indivisible contract, by the terms of which nothing is due the contractor until the work is completed and accepted by the owner. By his own testimony complainant shows failure to complete on his part and failure to accept on the part of defendant. Under such a state of facts, the refusal to accept being reasonable, a bill will not lie to enforce a mechanic’s lien for a balance claimed to be due. Boots v. Steinberg, 100 Mich. 134 (58 N. W. 657).

The bill of complaint is dismissed, with costs of both courts.

Moore, C. J., and Steere, McAlvay, Kuhn, Stone, Ostrander, and Bird, JJ., concurred.


text:
    MARTIN v. SAGINAW CIRCUIT JUDGE.
    Arrest — Capias ad Respondendum — Affidavit.
    Relator’s arrest on a capias should have been quashed, the writ being improperly issued on the affidavit of the plaintiff in the action that the defendant therein at a certain time and. place, in presence of a person named, uttered certain slanderous words, and also at other times and places unknown to plaintiff, and in other discourses defendant published other ' slanderous statements, since no allegation that plaintiff had. personal knowledge of the facts appeared in the affidavit,, and its averments tended to negative any such knowledge»
    Mandamus by Fred J. Martin against William G. Gage,, one of the circuit judges of the county of Saginaw, to compel respondent to quash a writ of capias ad respondendum and discharge relator from arrest thereon.
    Submitted October 8, 1912.
    (Calendar No. 24,879.)
    Writ granted November 8, 1912.

      McHugh, Gallagher & Me Gann, for relator.

      Thos. A. E. Weadock, for respondent.
   Moore, C. J.

Relator was arrested upon a writ of capias ad respondendum. Later he gave a bond for his appearance, and was released from custody. The portions of the affidavit material to quote here are as follows:

“ State of Michigan, County of Wayne — ss.:
“Madeline Clements Wanner of Detroit, in said county and State, being duly sworn, deposes and says that she is a married woman of the age of twenty-one years, having been married to Charles A. Wanner in New York City on the twenty-seventh day of June, A. D. 1911, by Rev. Mr. Goodchild, a minister of the Central Baptist Church of New York.City; that since the year 1906 she has resided at Detroit with her mother, Luella Clements, widow of Harry Clements, formerly of Bay City, Michigan, where the family formerly resided; that her father, Harry Clements, died at Bay City on the thirty-first day of October, A. D. 1901, and that since that time she has resided constantly with her mother; that she, the said Madeline Clements Wanner, has a claim for damages against Fred J. Martin, residing at Saginaw, in the county of Saginaw and State of Michigan, for the cause of action stated in the writ hereto annexed, upon which she believes she is entitled to recover the sum of twenty-five thousand dollars, and this deponent further says that the facts and circumstances upon which her said claim is based are as follows : Said Fred J. Martin on the 9th day of August, A. D. 1911, in the writing room of the Congress Hotel, in the city of Chicago, county of Cook and Státe of Illinois, in a certain discourse which the said defendant then and there had with William H. Gallagher, of Detroit, in the presence and hearing of divers good and worthy persons, did speak, publish, and declare these false, scandalous, malicious, and defamatory words of and concerning this affiant.”

Here follows language, which, if not true and not privileged, was slanderous.

“And at other times and places within the past year, but on what particular time and at what particular places this affiant does not know, but especially at said city of Chicago, said Fred J. Martin, in certain other discourses with Morris Robinson of Chicago, Walter Bolger, and other persons not known to this affiant, falsely and maliciously said of and concerning said affiant, she being at the time a young girl of about fourteen, and both said Martin and this affiant being unmarried, falsely accused this affiant. * * * This affiant further says that she is not guilty of any of such charges nor any similar charges and has been grievously injured by said false accusations.

[Signed] “Madeline Clements Wanner.

“ Subscribed and sworn to,” etc.

A motion was made to quash the proceedings, in support of which motion relator filed his own and other affidavits. The reasons stated in the motion are:

“jFirst. Because the affidavit of the above-named plaintiff for said writ of capias is not within the personal knowledge of said affiant, as appears from the face of said affidavit, and as appears likewise from the alleged facts stated therein.
Second. Because the said affidavit of said above-named plaintiff does not establish such a case as warrants, under the law, an order holding defendant to bail.
Third. Because this court possesses no jurisdiction to issue an order holding defendant to bail under the circumstances set forth in affidavit for said writ of capias made by the above-named plaintiff.
“ Fourth. Because said order to hold to bail was based upon hearsay evidence as appears by the affidavit of the above-named plaintiff.
“Fifth. Because plaintiff’s alleged right of action is based upon a conversation alleged to have been held between defendant and William H. Gallagher, attorney of record for the plaintiff in case entitled Blanche Peck Wanner, Plaintiff, v. Madeline Clements, Defendant, Circuit Court for Wayne County, file No. 53, 646, which said right of action was then pending in said court, and the alleged defamatory statements were afterwards, on or about the 18th day of September, A. D. 1911, sworn to by said defendant, when called as a witness in said cause, which said cause has not as yet been tried in court on its merits, and which is pending in said court for trial.
“Sixth. Because defendant cannot properly be deprived of his liberty upon an affidavit for writ of capias, made up of hearsay statements and allegations.”

The trial judge was of the opinion that the.affidavit was defective, but regarded the affidavit of relator as an admission of the truth of the averments in the affidavit, and declined to quash the proceedings. He cited in support of his opinion the case of Robinson v. Branch Circuit Judge, 142 Mich. 70 (105 N. W. 25). A reference to that case will show it is clearly distinguishable from the case at bar. The opinion in that case closes by saying:

“ But whether or not the affidavit is technically sufficient, the writ asked for is not one of right, and, as relator made it appear to the circuit court that the facts set out in the affidavit are true, contesting and disputing only the conclusion of affiant.”

The affidavits of relator are too long to make it advisable to quote them, but a fair reading of them does not give rise to the inference that the facts set out in the affidavit for capias are true. The last-named affidavit was too faulty to be the basis of a proceeding of the character of the one before us. See Proctor v. Prout, 17 Mich. 473; Hackett v. Wayne Circuit Judge, 36 Mich. 334; Shaw v. Ashford, 110 Mich. 534 (68 N. W. 281); Wright v. Wayne Circuit Judge, 119 Mich. 499 (78 N. W. 545); Church v. Calhoun Circuit Judge, 129 Mich. 126 (88 N. W. 403); Robinson v. Branch Circuit Judge, 142 Mich. 70 (105 N W. 25); Conrad v. Van Buren Circuit Judge, 144 Mich. 492 (108 N. W. 347). The writ is granted, with costs.

Steere, Mcalvay, Brooke, Kuhn, Stone, Ostrander, and Bird, JJ., concurred.


author: Bird, J.

text:
      In re EVANS.
    Criminal Law — Maximum Sentence — Indeterminate Sentence Law.
    Under the amendment of the indeterminate sentence law enacted in 1905 (Act No. 184), directing the court imposing sentence to state the maximum penalty, no discretion to name a shorter period than the statute fixes vests in the circuit judge, whose duty is purely ministerial, so that a respondent convicted of burglary, for which the statutory maximum is 15 years, was not entitled to be released at the end of five years, the maximum erroneously stated by the order of the court which also named three years as a réasonable time.
    Petition by Charles Evans for the writ of habeas corpus to secure the release of petitioner from imprisonment in State prison at Jackson.
    Submitted October 8, 1912.
    (Calendar No. 25,375.)
    Writ denied November 8, 1912.

      Burney E. Brower and Reuben H. Rossman, for petitioner.

      Thos. A. Lawler, Deputy Attorney General, and Edward Waer, Assistant Attorney General, for the people.
   Bird, J.

The petitioner, Charles Evans, raises the question as to whether he is legally detained in Jackson prison by a petition for a writ of habeas corpus.

The petitioner was convicted of the crime of burglary in the Berrien circuit court, and on the 1st day of May, 190?, received the following sentence:

‘' The said Charles Evans to be confined in the State prison at Jackson, at hard labor, for the maximum period of five years and for the minimum period of two years, and the court recommends three years as a reasonable maximum sentence.”

The maximum period fixed by the trial court having expired, the petitioner contends that he is now entitled to be discharged. The warden refuses to release him, and bases his refusal upon the fact that the statute (section 11546, 3 Comp. Laws, 5 How. Stat. [2d Ed.] § 14592) under which petitioner was sentenced provides a maximum penalty of 15 years, and that the statute should control, rather than the 5-year period fixed by the trial court.

It is argued by the attorney general, in defense of the warden’s position, that the fixing of a 5-year maximum period by the trial court was without warrant of law, for the reason that the indeterminate sentence law confers no authority on the trial court to fix any other or different maximum period than the one fixed by the statute, under which the sentence was pronounced. The indeterminate sentence law provides:

" The maximum penalty provided by law shall be the maximum sentence in all cases except as herein provided and shall be stated by the judge in passing sentence.” Act No. 184, Pub. Acts 1905.

It will be observed from a reading of this provision that the legislature conferred no authority on the trial court to .fix the maximum period. The legislature itself pointed out what the maximum period should be, and directed the trial court to “state it in passing sentence.” The duty imposed on the trial court was not one in which he had any discretion, but was simply a plain ministerial duty. This being so, it would follow that the maximum period of 5 years, fixed by the trial court, is a nullity, and should be rejected as surplusage, and the remainder of the sentence read in connection with the statute, which fixes the maximum period at 15 years. In re Duff, 141 Mich. 623 (105 N. W. 138).

But it is argued that the trial court did fix the maximum penalty at 5 years, that the sentence has never been corrected, and the petitioner has treated it as valid and served out the period, and now ought to be discharged. We do not so view it. As soon as sentence was pronounced upon the petitioner, the statutory maximum penalty became a part of it. It was a legislative fixing, with no power in the trial court to make it more or less, and the fact that he did make it less, either through inadvertence or misapprehension, could no more alter the statutory period than as though he had named a longer period than 15 years. This precise question was discussed and decided in Be Duff, supra; but it is contended by the petitioner that that case is no longer controlling, because the indeterminate sentence law has since been amended. The provision of the 1905 law is the same as the law of 1903 (Act No. 136, Pub. Acts 1903), except that in the 1905 law the trial court was directed to state the statutory maximum penalty in passing sentence. Neither law gives the trial court any discretion in fixing the maximum period, where it is fixed by the statute. This amendment to the law would not destroy the applicability of the case to the present one.

The petition is denied, and the prisoner remanded.

Moobe, C. J., and Steere, McAlvay, Brooke, Kuhn, Stone, and Ostrander, JJ., concurred.


text:
    GILDEA v. WARREN.
    1. Adverse Possession — Tacking Successive Possessions — Boundaries.
    Plaintiff, in an action of ejectment, was entitled to have her case submitted to the jury on the question of adverse possession of her house and lot, which she had owned less than 15 years, but which had without dispute been included by a fence within the boundaries of her yard, during more than 30 years and which her predecessors in title had held in possession.
    2. Same — Boundaries.
    Upwards of 15 years’ recognition of and acquiescence in boundaries of real property amply support a claim for the premises included thereby, which ought not to be upset by new surveys based on alleged original monuments.
    Error to Wayne; Mandell, J.
    Submitted October 11, 1912.
    (Docket No. 51.)
    Decided November 8, 1912.
    Ejectment by Mary Gildea against Mary B. Warren. A judgment for defendant on a verdict directed by the court is reviewed by plaintiff on writ of error.
    Reversed.

      Sloman & Sloman, for appellant.
    Campbell, Bulkley & Ledyard, {Joel H. Prescott, of counsel), for appellee.
   Moore, C. J.

Plaintiff brought this action of ejectment to recover possession of a strip of land, which is described as follows:

“Commencing at a point on the north line thereof, as above described, about thirty-five and fife feet west of the west street line of said Twelfth street; thence running southerly and at right angles to said line one and fife feet; thence westerly about nine and -fife feet; thence on a curve northerly to a point on the said north line of said plot of ground about ten and fife feet from the place of beginning; thence easterly along said north line of said plot of ground ten and feet to the place of beginning.”

This description is between the residences occupied by the parties to this litigation.

At the close of plaintiff’s testimony, the court directed a verdict for the defendant, basing such direction upon the decision of this court in Sheldon v. Railroad Co., 161 Mich. 503 (126 N. W. 1056).

Title to the premises of plaintiff is traced back to ownership by one Mary Ann Ockford, who, by warranty deed, dated June 8,1875, granted to John T. Martin and James Martin lot No. 39, in block 3, of part of the Thompson farm, so-called, according to the recorded plat. By warranty deed, dated February 17, 1886, John T. Martin and his wife conveyed to James Martin the north half of this property, which includes the plaintiff’s premises, but not the strip in dispute, which appears to be a part of the adjoining lot 40. By warranty deed, dated March 8, 1886, James Martin and his wife conveyed the north half of this property to Patrick Sullivan, who by warranty deed, dated September 7, 1887, conveyed the same to Carl D. Brandt and Rosa Brandt, his wife. By warranty deed, dated May 9, 1889, Brandt and wife conveyed the same description to the plaintiff, Mary Gildea, and her sister, Catherine Gildea. By warranty deed, dated August 14, 1902, Catherine Gildea conveyed her interest in the premises to her sister, the plaintiff. All the conveyances included the hereditaments and appurtenances thereunto belonging or appertaining.

It is the claim of the plaintiff that her house was built where it now stands inore than 50 years ago, and that the strip of land in controversy had been occupied as part of the yard surrounding the residence for more than 30 years, and up to the time in 1901 when she was dispossessed by the defendant. She offered testimony tending to support her claim. It will be noticed by referring to the date of her deed that her own possession did not continue for 15 years. Was the court right in holding that the case of Sheldon v. Railroad Co., 161 Mich. 503 (126 N. W. 1056), was controlling ? A reference to that case will show it is clearly distinguishable. In the prevailing opinion in that case, the court used the following language:

“ It is important to bear in mind that in every conveyance of the several grantors of the complainant, after the deed of right of way was given to the defendant Jackson, Lansing & Saginaw Railroad Company, there was the following exception:
“ ‘Except, however, all that part of said above-described piece or parcel of land heretofore conveyed by Stanislaus Legault and wife to the Jackson, Lansing & Saginaw Railroad Company by deed, dated the 18th day of September, 1880.’
“ It clearly appears from this record that there is no evidence of any parol permission, or authorization of any kind, given by the grantor Bell to the complainant, to take the place of the said Bell in the wrongful possession which Bell held of the strip of land in controversy in this case. Nor is there any evidence in the record of any parol permission or authorization of any of the grantors in the deeds hereinbefore referred to to their grantees to take the places of their grantors in the wrongful possession of said described strip of land. The record also shows that there was no parol agreement, understanding, permission, or authorization respecting the premises which complainant’s grantor had held, or would deliver.”

In the case before us there is no exception of the disputed strip in the various conveyances, and there is an abundance of testimony that the several grantees took possession of the disputed strip with the rest of the premises, regarding it as conveyed.

In Dupont v. Starring, 42 Mich. 492 (4 N. W. 190), this court held:

“It has been repeatedly held by this court that a boundary line long treated and acquiesced in as the true line, ought not to be disturbed on new surveys. Smith v. Hamilton, 20 Mich. 438 [4 Am. Rep. 398]; Joyce v. Williams, 26 Mich. 332. Fifteen years’ recognition and acquiescence are ample for this purpose (Stewart v. Carleton, 31 Mich. 270); and in view of the great difficulties which often attend the effort to ascertain where the original monuments were planted, the peace of the community requires that all attempts to disturb lines with which the parties concerned have long been satisfied should not be encouraged. Diehl v. Zanger, 39 Mich. 601.”

See, also, Green v. Anglemire, 77 Mich. 168 (43 N. W. 772); Sauers v. Giddings, 90 Mich. 50 (51 N. W. 265); Flynn v. City of Detroit, 93 Mich. 590 (53 N. W. 815); Lamoreaux v. Creveling, 103 Mich. 501 (61 N. W. 783); Darrow v. Village of Homer, 122 Mich. 229 (81 N. W. 262); Lang v. Mining Co., 145 Mich. 370 (108 N. W. 678); Triece v. City of South Haven, 154 Mich. 129 (117 N. W. 555).

We think the case comes within the reasoning of these eases, and that the case should have been submitted to the jury Under proper instructions.

Judgment is reversed, and a new trial is granted.

Steere, MoAlvay, Brooke, Kuhn, Stone, Ostrander, and Bird, JJ., concurred.


author: Steere, J.

text:
    BRANCH v. KLATT.
    1. Evidence — Similar Accidents — Notice—Negligence—Theaters and Shows.
    Evidence of accidents similar to the one that is in litigation, and occurring prior thereto, is admissible to prove both notice of the defect and negligence: subsequent occurrences are not, however, competent.

      2. Same.
    And a general question calling for testimony as to accidents either before or after plaintiff’s injury, and assuming, without any basis, that certain disputed facts were proved, was correctly ruled out.
    3. Same — New Tkial.
    Under conflicting testimony of interested and disinterested witnesses on both sides, claiming on one side that the hall in which plaintiff fell was not lighted and that railings had not been constructed at the place where plaintiff claimed to have fallen, but disputed on the other side, the court was justified in refusing a new trial.
    4. Same — Motions—Newly Discovered Evidence.
    Certain testimony taken before a circuit court commissioner after judgment, and used as a basis for a motion for a new trial, considered by the trial judge to be merely cumulative and not liable to cause a different result on a new trial, addressed itself to the discretion of the court, and unless such discretion was manifestly abused, it could not be reversed.
    5. Same.

      JBeld, also, that the newly discovered evidence related only to an issue that might not have been decisive of the case, i. e., the presence of handrails, and the jury may have determined that the hall and stairway was properly lighted and handrails unnecessary.
    Error to Wayne; Codd, J.
    Submitted October 11, 1912.
    (Docket No. 28.)
    Decided November 8, 1912.
    Case by Teresa Branch against William F. Klatt for personal injuries. Judgment for defendant. Plaintiff brings error.
    Affirmed.

      Patrick J. Kelaher (McHugh, Gallagher & McGann, of counsel), for appellant.

      Luman W. Goodenough and Irvin Long, for appellee.

       The authorities on the question of the admissibility of evidence of condition, before and after accident, of property whose defects are alleged to have caused injury, are reviewed in an exhaustive note in 32 L. R. A. (N. S.) 1084.
      As to liability generally of one maintaining place of amusement to which the public are invited, for safety of patrons, see notes in 3 L. R. A. (N. S.) 1182; 19 L. R. A. (N. S.) 772; 82 L. R. A. (N. S.) 713.

   Steere, J.

Plaintiff instituted this action to recover damages for personal injuries imputed to defendant’s negligence in failing to provide and maintain a safe and suitable stairway leading to his theater.

Defendant was proprietor of a place of public entertainment known as the Bijou Theater, located on the second floor of a building numbered 24, on Monroe avenue, in the city of Detroit. The ticket office of said theater was situated on the first floor of the building at the street entrance, where patrons attending the performances purchased tickets of admission. Having procured these, they were allowed to ascend the stairway leading to the second floor and enter the theater. On the afternoon of October 21, 1909, plaintiff patronized said place of amusement where a continuous moving picture performance was in progress. She took a seat, witnessed the regular bill of said show, and then withdrew. On making her exit by said stairway, she fell down a flight of eight steps, sustaining, as is alleged, serious injuries.

This case has been twice tried in the circuit court, and is now here a second time for review. On the first trial the case was taken from the jury; a verdict and judgment being directed and entered by the court in favor of the defendant, on the ground of contributory negligence. Plaintiff thereupon brought the proceedings to this court for review on a writ of error. It was here held on the record as then made that issues of fact were involved which should have been left to the jury to decide under proper instructions. The judgment was reversed and a new trial granted. The opinion then rendered, reported in 165 Mich. 666 (131 N. W. 107), furnishes a complete and clear statement of the case, and contains a diagram of the entrance to the theater, showing the landings and steps constituting part of the stairway down which plaintiff fell. On a retrial in the circuit court the case was submitted to a jury, again resulting in a verdict and judgment in favor of defendant. A motion for a new trial was made and denied. Plaintiff again seeks a reversal, presenting two assignments of error, as follows:

“(1) The court erred in excluding the following question : ‘ How many times per day while you were standing in the rear of that theater did you find people stumbling across that place ?’
“ (2) The court erred in denying plaintiff’s motion fora new trial.”

The first assignment of error approaches a question which has been the subject of serious consideration and somewhat conflicting opinions in this court as well as in other jurisdictions. The two cases of Early v. Railway Co., 66 Mich. 349 (33 N. W. 813), and Langworthy v. Green Township, 88 Mich. 207 (50 N. W. 130), are cited by counsel for defendant as holding that proof of previous accidents occurring at the same place as the one giving rise to the litigation is not permissible. In the Early Case it was said:

" The court committed no error in excluding other and previous accidents occurring at the same place.”

And in the Langworthy Case:

A witness was asked by defendant’s counsel if he had ever heard or known of any one being injured on that obstruction before this, but the court properly excluded the testimony. Hodges v. Bearse, 129 Ill. 87 (21 N. E. 613).”

It would seem in this case that the interrogator was seeking to prove a negative. To the extent these authorities tend to substantiate the rule defendant contends for, they must be regarded as somewhat out of tune with others which came before and after them. See Grand Rapids, etc., R. Co. v. Huntley, 38 Mich. 537 (31 Am. Rep. 321); James v. Mining Co., 55 Mich. 335 (21 N. W 361); Smith v. Sherwood Township, 62 Mich. 159 (28 N. W. 806); Thorsen v. Babcock, 68 Mich. 523 (36 N. W. 723); Lombar v. Village of East Tawas, 86 Mich. 14 (48 N. W. 947); Retan v. Railway Co., 94 Mich. 146 (53 N. W. 1094); Corcoran v. City of Detroit, 95 Mich. 84 (54 N. W. 692); Alberts v. Village of Vernon, 96 Mich. 549 (55 N. W. 1022).

In Gregory v. Railway, 138 Mich. 368 (101 N. W. 546), it was held that “such testimony is only admissible to show notice and knowledge of the defects,” but this was overruled in Woodworth v. Railway, 153 Mich. 108 (116 N. W. 549), and it now stands as the law in this State that evidence of prior similar accidents in the same place, the conditions being shown to remain unchanged, is admissible to prove both notice of the defect and negligence. It is not permissible, however, to prove that others stumbled in the same place after the accident. McGrail v. City of Kalamazoo, 94 Mich. 52 (53 N. W. 955).

The question asked in the case at bar, exclusion of an answer to which is alleged as error, assumed facts not proven, and was so framed as to include accidents occurring both before and after the one in issue. It called for incompetent as well as competent testimony, and the record contains no intimation of what the answer would have been. No proposal or offer was made to show that other persons did in fact stumble across that place prior to the time plaintiff fell. The question asked did not properly present that issue. It was objectionable in substance in part and in form as a whole. The objection was properly sustained.

The reasons upon which plaintiff’s motion for a new trial was made are stated as follows:

“(1) Because the said verdict was contrary to the weight of evidence adduced at the trial of said cause.
“ (2) Because the jury erred in its finding as to the special question submitted to it, at the request of the defendant.
“ (3) Because the testimony of the said defendant, and the witnesses produced by him, so far as the same pertained to the time when the railing down the steps leading from the aisle of said theatre had been placed in position, was erroneous and false.
“(4) Because the testimony of said defendant and the witnesses sworn in his behalf as to the manner of keeping a record of the business of said defendant prior to and at the time of and subsequent to the accident, which was the basis of the plaintiff’s cause of action, was erroneous and false.
“(5) That the testimony of said defendant was false and erroneous in the following answers given to the following questions.”

This is followed by several pages of questions and answers extracted from the testimony of defendant and one of his witnesses, all of which is alleged to be “ false and erroneous.”

The grounds of negligence alleged in plaintiff’s declaration are, briefly stated, failure to equip the stairway with suitable railings on each side, failure to provide them with sufficient lights to enable plaintiff to see where the stairs and landings began and ended, and failure, either by signs and proper notices or by attendants, to inform and advise her of the conditions and dangers.

On the trial of the case plaintiff was sworn and testified to the time and circumstances of her attending the theater and falling when making her exit. After describing the stairway and manner in which it was arranged and equipped, her testimony, appearing in the printed record in narrative form, is as follows:

“At the time I met with the accident, there was no railing down this curved step. I had entered the theater safely and witnessed the performance, and was leaving while an act was in progress. The Bijou is one of the so-called continuous moving picture theaters. It was dark in the theater when I started to leave, and I felt my way down the first flight of three steps. I saw where the other flight started to lead down stairs and walked toward it. I had been in this theater but once before, Bóme months previous, and did not know about the curved step, and, being unable to see it, I walked right off, and was thrown down the flight of eight steps to the first landing. I sustained serious injuries. There was no one leaving the theater at the same time with me, nor immediately in front of me. There was no railing or support down the first three steps, over the single step, or along the wall leading down the first flight of eight steps.”

At the conclusion of her examination plaintiff rested her case. Thereupon the defendant, to maintain the issue on his part, produced seven witnesses, including himself, who gave abundance of positive testimony that suitable handrails were present in the stairway at the time of, and long before, the accident, and that the exit was amply equipped with electric lights, both arc and incandescent, to enable persons to plainly see the steps and landings when ascending or descending. Five of these witnesses were present on the occasion in question, and testified that these lights were turned on and clearly lit the stairs, throwing plenty of light on the landing so that everything was distinct and plain. In so-called rebuttal, though more properly a part of her main case, plaintiff produced four witnesses who testified to having patronized the theater before the accident, and that there were no railings down the curved steps, but that they were put there after plaintiff fell. During the progress of the trial a recess was taken by consent of counsel, and judge and jury visited the premises and inspected the place where the accident occurred.

In connection with his charge the court submitted to the jury the following question, proposed in writing by defendant’s counsel:

“Were there any railings leading down to the curved step in defendant’s theater at the time of the accident ? ”

In harmony with their general verdict in favor of defendant the jury answered “Yes” to the special question. There was an abundance of positive and negative testimony in sharp conflict as to the existence or nonexistence of facts alleged as grounds of negligence, given by both interested and apparently disinterested witnesses on each side. As heretofore held by this court, the case clearly involved issues of fact for the jury. The charge of the court, against which no error is assigned, plainly instructed the jury as to the nature of the case and the questions of fact within their province to decide. In view of the abundance of conflicting testimony on those issues, we cannot conclude that the “ verdict was contrary to the weight of evidence adduced at the trial,” or that “the jury erred in its finding as to the special question submitted to it at the request of the defendant.”

The remaining reasons urged by plaintiff in support of her motion for a new trial relate to the time when the railings down the stairway leading from the aisle of the theater were put in position; it being charged that defendant’s testimony at the trial on that issue was manifestly false, misleading, and evasive. This claim is based largely on certain depositions taken by plaintiff subsequent to the trial before a commissioner.

At the trial defendant William Klatt testified that the rails leading from the center aisle to the curved steps were put up about four years previous, about the time the theater was remodeled, and had remained there since. On his subsequent examination before the commissioner, he again so testified, and further stated that said rails were included among the repairs made by certain contractors, that he did not know whether they had any plans and specifications for the work, and had no accounts or other written evidence showing when or by whom the rails were put in. Richard Mildner, a member of the firm of Mildner & Eison, architects, testified before the commissioner that his firm prepared the plans and specifications for remodeling the theater, and that these plans, which he produced, showed no railings down the steps; that,- if any were placed there, it must have been done afterwards. Otto.Damm, a member of the firm of contractors who had the contract of remodeling, identified the plans as those under which the work was done. He did not remember anything about the rails, but stated his books would show if they put them in. He later produced the books of his firm which showed no entries relating to installing any handrails down the first three flights of steps leading from the aisle of the theater. A witness named Christine Brewee testified before the commissioner to working at the theater when it was remodeled; that it was more than three months later when the stair railings were installed; guessed it was more than six months later; that they were put in later, of course, but witness did not know exactly when.

It is the contention of plaintiff that the testimony as a whole, particularly emphasized by that taken before the commissioner after the trial, shows that defendant and his witnesses not only testified falsely as to when and by whom the rails were installed, but made a studied attempt to mislead and conceal facts which might help towards ascertaining the truth. In his reasons for denying the motion for a new trial the learned circuit judge, referring to the answer made by the jury to the special question, said:

“ The claim that this testimony is false is based mainly upon further testimony relative thereto taken before a circuit court commissioner. I do not find, however, from this testimony that there is any material change in that which was given upon the trial; and the arguments which were submitted to the court, with inferences of counsel therefrom, were the same as those submitted to the jury at the time of the trial. The jury manifestly believed the testimony that was presented. They had full opportunity with the court to note the appearance of the witnesses on the stand, and were given an opportunity to personally examine the railing in question by a visit to the premises had during the trial by consent of both parties. I see no reason why the finding of fact made by the jury in this regard should be set aside.”

It can safely be said that, in the absence of the depositions subsequently taken before a commissioner, the motion for a new trial would not call for serious consideration. These depositions which are chiefly relied upon by counsel in urging the second assignment of error are tobe considered in like manner as is newly discovered evidence presented by affidavits in support of a motion for a new trial.

It is recognized as a general rule that a motion for a new trial upon that ground is not regarded with favor, and, to prevail, it must appear to the satisfaction of the court that the evidence itself, and not its materiality, is newly discovered; that the party could not with reasonable diligence have discovered and produced it at the trial; that it is not cumulative merely, unless it be so strong and convincing as to render a different result probable; and that such result is in fact probable and the legitimate, logical effect of such evidence would be on a retrial to reverse the former verdict.

Whether the newly discovered evidence is of such a character and a different conclusion ought to follow, or is probable on a retrial is a question primarily and peculiarly addressed to the good judgment and discretion of the trial judge who heard and saw the witnesses, and is familiar with the visual conditions of the case. That discretion will not, as a rule, be disturbed except in case of manifest abuse.

It is further to be observed that the depositions, as well as the special question complained of, relate only to the time when the handrails were put in the stairway, and do not touch the issue of whether the stairway was properly lighted, or in any way attack the testimony of defendant’s witnesses on that question. The issue as to the presence of rails was not necessarily a controlling one. The question of plaintiff’s contributory negligence was involved, and it was also a question for the jury whether or not failure to supply handrails was negligence under the circumstances shown in this particular case. If the stairway was broad, With easy steps and well lighted, it could with reason be contended that the absence of handrails was not. Plaintiff, according to her own testimony, was alone, departing at her leisure, with abundance of time, undisturbed by any rush or crowd, and fell, not because there was no railing, but because it was dark. She says:

“ It was dark in the theater when I started to leave and I felt my way down the first flight of three steps, * * * did not know about the curved step, and, being unable to see it, I walked right off and was thrown down the flight of eight steps to the first landing.”

The inference from her testimony is that if the place had been plainly lighted, so that she was able to see clearly, she would not have fallen. Against her testimony that the stairway was dark, the defense opposed the testimony of numerous witnesses that it was well lighted. If the jury believed defendant’s testimony as to the lights, they could legally find that defendant had discharged his duty to plaintiff regardless of the presence of handrails.

We find no error in the decision of the trial court denying plaintiff’s motion for a new trial.

The judgment is afl&rmed.

Moore, C. J., and McAlvay, Brooke, Kuhn, Stone, Ostrander, and Bird, JJ., concurred.


text:
    RICE v. CITY OF PONTIAC.
    1. Municipal Corporations — Sidewalks—Bond —Contracts— Trial — Charge.
    Instructions to the jury that plaintiff, suing to recover under a city ordinance which rendered the city liable for half the cost of cement walks built by the city contractor, was entitled to recover as assignee of the property owners if the jury found that he had filed his bond as required by municipal regulation, and had been advised by one of the commissioners that the bond was good, although it was later rejected by the commissioners, and if the walk conformed to the requirements of the ordinance, held to be sufficiently favorable to defendant.'
    2. Same — New Trial.

      Held, that the refusal to grant a new trial was sufficiently supported by conflicting evidence.

      Error to Oakland; Smith, J.
    Submitted October 15, 1912.
    (Docket No. 86.)
    Decided November 8, 1912.
    Assumpsit by John W. Rice against the city of Pontiac for labor and materials. Judgment for plaintiff. Defendant brings error.
    Affirmed.

      Peter B. Bromley, for appellant.

      Pelton & McGee, for appellee.
   Moore, C. J.

The plaintiff as assignee of certain property owners, along whose property the city had ordered cement sidewalks built, recovered a judgment for $189.50, being 4£ cents per square foot of the total cost of the walks. The case is brought here by writ of error.

It is insisted the city is not liable (1) because the plaintiff was not a licensed sidewalk builder for the year commencing May 1,1911, and had not filed and had approved his bond as a sidewalk builder for that year; (2) because, under the ordinance under which the plaintiff claims to recover, the city did not undertake or agree to pay the plaintiff either personally or as assignee, but only property owners along the street upon which the sidewalk was laid. It i§ also said the court erred in his refusal to set aside the verdict and grant a new trial for the reason that the verdict of the jury on the question as to whether the sidewalks charged for by the plaintiff were defective walks, and were not built in compliance with the ordinance of the city of Pontiac, and the specifications in reference to building of cement sidewalks was against the clear weight of the evidence in the case upon such question. In May, 1900, the following resolution was passed by the common council:

“ That hereafter all contractors building cement walks for or in behalf of the city or any walk for which the city pays expenses for any portion of the cost thereof shall file a good and sufficient bond to the city of Pontiac in the sum of five hundred dollars, guaranteeing the walks for a period of five years.”

The ordinances germane to the issue presented which were in force at the time the walk was built are as follows:

“ Section 1. Hereafter when a sidewalk has been ordered built by the common council of the city of Pontiac in said city and has been built by the same person or persons who have been contracted with to build walks for said city, if the same has been built and laid of flag stone or cement and as good as the best that is now laid on Saginaw street in said city, the said city will pay to the owners of the property along which said sidewalk has been so laid one-half of the actual value thereof not exceeding four and one-eighth cents per square foot.
“Section 2. On the completion of the said sidewalk the person entitled to said sum shall present his or her claim to the council in the same manner as is provided for the presentation of other claims and the council shall audit and allow the same, but it shall be a complete defense to said claim if it shall appear to the council that the said walk or the material used therein is defective or is not built in a substantial and workmanlike manner.”

Pontiac now has the commission form of government. The records of the city show the following:

“Pontiac, Mich., August 1, 1911.
“ To the Honorable Commissioners of the City of Pontiac, Mich.
“ Gentlemen:
“We, the undersigned, property owners and taxpayers, liable to assessment, do hereby most earnestly petition your honorable body for the construction Of a sidewalk on Paddock from Raeburn to Prospect and on Prospect from Paddock to Saginaw North Side, and your petitioners will ever pray. C. McClelland, F. Burke, Ernest Radson, Ross & Slater Construction Co.; Prospect, Ray W. Long; Prospect, V. Wells; Church, Gates Bros.
“By Commissioner Osmun: Resolved, that the petition be received and the prayer granted.”

The city engineer established the grade of the walk. Before its construction was commenced, and some time in August, the plaintiff filed his bond in due form with sureties, with the city clerk. He testified that, before he built the walk, he was informed by Commissioner Osmun that the bond was all right. This is denied by Mr. Os-mun, but on the cross-examination he said in part:

“ I said (to Mr. Rice) that his bond might be good, but it hadn’t been passed by the commission yet. His bondsmen might be good. He asked me something about the bondsmen, and I said that I considered them good. That is true, they are good. I don’t know as I knew that at the time his bond was in the hands of the city clerk. I think I heard it some way. I couldn’t say whether that was before he started to build the walks or not.”

Mr. Rice says he had no knowledge his bond was not satisfactory to the commissioners until the walks were all completed, and we do not discover anything in the record in conflict with this testimony. Mr. Osmun frequently saw the walk while it was under construction. The testimony in relation to the character of the walk was very conflicting. That offered on the part of the plaintiff tended to show that it was well built. The testimony on the part of the city was to the contrary. Testimony on the part of the plaintiff and Mr. Osmun’s testimony shows that before this walk was built Mr. Rice had built crosswalks and sidewalks which had been directed to be built by the city. The testimony also discloses that the blanks upon which were written the assignments from the property holders to the plaintiff were furnished by the city, and that it had furnished such blanks for several years, and had paid- the rebates to the contractors where so assigned.

Those parts of the charge necessary to be quoted to show what was submitted to the jury, are as follows:

“ The city has prescribed as near as practicable the amount of cement that shall be used in a load of gravel or the proportion and the cement that shall be mixed with the sand — that is, the proportion — because experience has shown to the officials that taking it one time with another that makes the most durable and best walk, and the prices the property owners promise to pay, and the city promises to rebate for is for work substantially built in compliance with these specifications.
“It may seem a little harsh, but it is here, and the court can do no better than to call your attention to it. As a sort of penalty to compel sidewalk builders to comply with this ordinance and these specifications, it is enacted that failure to comply with these specifications shall be held to be a complete defense. The meaning of that is that the property owners may settle with the sidewalk builder if they wish to, but the city shall not pay any rebate where a sidewalk was not substantially built and complied with the specifications, and it shall be a complete defense; that is, the city shall not be liable at all for any rebate, unless there is a compliance. * * *
“With regard to the assignments from the owners, I say to you technically there is no doubt but the city attorney is correct — that is, the commission has seen fit to insist that the rebate should go directly to the property owner, that they should enforce such a provision — but it appears in evidence that for years, as a matter of convenience, property owners, when a strip of walk has been constructed, have assigned their claims to the contractor, and he has collected the rebate all in one bunch, so I allow the case to go to the jury as far as these assignments are concerned, you will need pay no attention to them. Mr. Rice is the legal holder of them under the practice that has obtained in the city.
“It is the claim of the plaintiff that he presented his bond in good faith, that the commissioner of streets told him his bond was all right, and that he proceeded with the work without any knowledge that his bond had not been officially accepted. It is his further contention that the commissioner of public streets saw the plaintiff building the walks in question, and was there almost daily. Plaintiff further contends that the walk was built as a matter of fact in a substantial and workmanlike manner. Now, if you find from the evidence that the plaintiff in good faith performed this contract on which recovery in this suit is sought substantially, and I emphasize the word, ‘substantially,’in all material particulars according to its terms, without wilful departure therefrom, or omission in the essential points, and that such performance is sufficient to entitle the plaintiff to recover in this suit— that is, provided he was told by the commission that his bond was all right.
“ I charge you, further, that if you find that the city permitted the walks in question to be built, under an ordinance allowing the property owners a rebate or a certain per cent., and if you find that the property owners assigned their claims to the rebate to the plaintiff, then the plaintiff would be entitled to whatever rebate the property owners would get under the ordinance. If you find that the plaintiff presented a bond, and left it with the city clerk, and if you further find that the plaintiff was told by the commissioner of public streets that his bond was all right, and, if you further find that, after leaving the bond with the city clerk, the plaintiff went ahead and built the walks in question with the knowledge and consent of the commissioner of public streets, then I charge you in that case that the city cannot now defeat this action on the ground that the bond was not officially accepted.
“ The question, therefore for you to determine, in addition to the question of the bond, is this: Has there been a substantial compliance with the provisions of the ordinance in the construction of the walk ? In other words, Is it a good and substantial walk, built in a good workmanlike manner of ordinarily good material, and as good as the best that is laid on Saginaw street in the city of Pontiac? And, if you find from the evidence that this walk is a good substantial walk, and that it does conform with the requirements of the ordinance, your verdict should be for the plaintiff for the amount claimed, if you also find as a fact that Commissioner Osmun told the plaintiff his bond was all right.
“ Upon the part of the defense I charge you as follows: That there can be no recovery in this case simply because Mr. Rice left a bond with the city clerk. It appears the bond was later rejected by the commissioners and returned to him. I charge you, further, that if the jury find from the evidence in the case that the sidewalks charged for by the plaintiff in this ease were not built and laid so as to be as good as the best cement sidewalks that are laid on Saginaw street in the city of Pontiac, and said walks and the material therein are defective and are not built in a substantial manner, then your verdict must be in favor of the defendant of no cause of action..
“In this case the burden of proof is upon the plaintiff, John W. Rice, to show by a fair preponderance of the evidence in the case that the sidewalks charged for were built and laid so as to be as good as the best cement sidewalks on Saginaw street, and that said sidewalk and the materials therein were not defective and were built in a substantial and workmanlike manner, and if the plaintiff Rice has failed so to do, or if the evidence upon these questions is evenly balanced, then your verdict should be in favor of the city of no cause of action.”

Upon the record as made, we do not think the city has any just complaint to the way in which the case was submitted to the jury.

Did the court err in refusing a new trial because the verdict was against the weight of the evidence ? As before stated, the testimony was in sharp conflict. Its weight would depend much upon the appearance of the witnesses, their opportunities for knowledge, and their interest. The jury and the trial judge had the great advantage of seeing and hearing the witnesses.

We are not disposed to say it was reversible error, in view of the record, to refuse a new trial.

Judgment is affirmed.

Steere, McAlvay, Brooke, Kuhn, Stone, Ostrander, and Bird, JJ., concurred.