text:
    KIMBALL v. RANNEY.
    1. Principal and Agent — Mortgage Foreclosure —Purchase op Principal’s Property by Agent.
    An agent for the sale of real estate has no right to bid it in for himself at a sale on foreclosure of a mortgage thereon, and, if he does so, equity will require him to account therefor to his principal; and the rule is not altered by the fact that he notified the principal, several days prior to the sale, of his intention to purchase on his own behalf.
    2. Same — Ratification—Estoppel.
    The fact that the principal obtained an order for a resale of the premises, and afterwards, being unable to comply with the conditions of the order, or to effect a settlement with the agent, accepted the surplus moneys arising from the sale, and-then waited from three to four years before proceeding against the agent for an accounting, does not amount to a ratification of the sale, or estop the principal from claiming that it inured to his benefit.
    3. Same — Laches.
    Nor is he precluded from obtaining relief because of his laches, where his rights in the premises were at all times denied by the agent.
    4. Same — Accounting—Interest.
    In accounting for the proceeds of the transaction, however, the agent should be allowed interest on his disbursements.
    Appeal from Wayne; Frazer, J.
    Submitted October 27, 1899.
    Decided December 2, 1899.
    Bill by James E. Kimball against Frederick T. Eanney and George W. Balch for an accounting and an injunction. From a decree against defendant Eanney alone, both he and complainant appeal.
    Modified.

      George W. Bates, for complainant:
    . Eanney was disqualified to purchase in his own name while acting as agent for Kimball. 2 Sug. Vend. & P. (8th Amer. Ed.) 406; 2 Pom. Eq. Jur. §§ 959, 1052; 1 Story, Eq. Jur. § 316; Adams, Eq. 61, and cases cited; Greenh. Pub. Pol. 300; Ingerson v. Starkweather, Walk. Oh. 346; Walton v. Torrey, Har. Oh. 259; Clute v. Barron, 2 Mich. 192; People y. Township Board, 11 Mich. 226; Green v. Knoeh, 92 Mich. 26; Ford v. Wright, 114 Mich. 122; Tyler v. Sanborn, (111.) 4 L. E. A. 218, and note; Church v. Insurance Co., 1 Mason, 341; Grumley v. Webb, 44 Mo. 444; Adams v. Sayre, 70 Ala. 318; Martin v. Wyncoop, 12 Ind. 266; Newcomb v. Brooks, 16 W. Va. 32. And the notice given by him to Kimball did not operate to terminate the agency. Bowman v. Officer, 53 la. 640; Bartholemew v. Leech, 7 Watts, 472; Fountain Coal Co. v. Phelps, 95 Ind. 271; Michoud v. Girod, 4 How. 503.
    Complainant is not chargeable with laches. Boyce v. Banz, 29 Mich. 146; Allore v. Jewell, 94 U. S. 506.
    To constitute a ratification, the acts relied upon must have been done with knowledge of the law as well as the facts. 1 White & T. Lead. Cas. p. 237 et seq.j 2 Lewin, Tr. 926; 1 Story, Eq. Jur. § 345; 2 Pom. Eq. Jur. § 964; 2 Perry, Tr. § 851; Murray v. Palmer, 2 Sch. & L. 474; Crowe v. Ballard, 2 Cox, Ch. 253; Cockerell v. Cholmeley, 1 Russ. & M. 418; Wood v. Downes, 18 Ves. Jr. 120; Dunbar v. Tredennich, 2 Ball & B. 304; Strange v. ffooks, 4 Gift. 408; Hoffman Coal Co. v. Cumberland Coal Co., 16 Md. 456; Mulford v. Minch, 11 N. J. Eq. 16; RosenbergePs Appeal, 26 Pa. St. 67; Campbell v. McLain, 51 Pa. St. 200; Boyd v. Hawkins, 2 Dev. Eq. 195; Butler v. Haskell, 4 Desaus. 651.

      Gray & Gray (Edwin E. Conely, of counsel), for defendants:
    Under the circumstances, there was no disability on the part of Ranney to purchase. Beedle v. Crane, 91 Mich. 429; Rochester v. Lovering, 104 Ind. 562.
    At most, the purchase was only voidable (Story, Agency, § 210; People v. Township Board, 11 Mich. 229; Hoyt v. Latham, 143 U. S. 566; Marsh v. Whit-more, 21 Wall. 178; Bank v. Taylor, 41 Ala. 100), and as such has been ratified (Jewett v. Petit, 4 Mich. 508; Wilbur v. Flood, 16 Mich. 40; Brown v. Miller, 63 Mich. 413; Gridley v. Tobacco Co., 71 Mich. 528; Bresnahan v. Ross, 103 Mich. 483; Oil Co. v. Marbury, 91 U. S. 591; Grymes v. Sanders, 93 U. S. 55; Hayward v. Bank, 96 U. S. 611; Pence v. Langdon, 99 U. S. 578; Mackall v. Casilear, 137 U. S. 556; Hammond v. Hopkins, 143 U. S. 250; Hoyt v. Latham, Id. 567; Hyatt v. Clark, 118 N. Y. 563; Scott v. Freeland, 15 Miss. 409; Bassett v. Brown, 105 Mass. 551; Eckrote v. Myers, 41 Iowa, 324; Pridgen v. Adkins, 25 Tex. 388).
   Hooker, J.

Heath owned certain real estate in the city of Detroit, upon which were two mortgages, aggregating about $17,000. Ranney, a real-estate agent, was employed by Heath to sell the property, for which he was to receive a commission. There was talk between them that the value of the property would be increased if the council of the city could be induced to fix the location of a proposed street upon this property. Heath became pecuniarily involved, and on June 16, 1893, deeded the property to his father-in-law, Kimball. Kimball testified that the consideration for this deed was $1, and that he paid some taxes upon the property, amounting to $82. He said that there was no bargain, and that the deed was made by Heath and handed to him, and that he supposed he did it to keep it away from creditors, and that he held it for Heath’s benefit. On April 28, 1894, at Heath’s direction,' Kimball signed a contract with Ranney, whereby, “in consideration of services rendered in effecting the sale ” of the property, it was agreed that Ranney should receive a commission of 2 per cent, upon a sale of the property for $22,500, and’ one-half of any sum received in excess of that price. Ranney was to pay “all expenses or costs of any kind incurred in the sale of said property, and also one-half of any assessment for paving or sidewalk that may be assessed against unsold portion of said property, when said assessment shall become due and payable ; said advances being intended as part of the consideration of this contract.” ■

The mortgage held by the Citizens’ Savings Bank was in process of foreclosure in chancery, and a sale of the premises thereunder was advertised for July 14, 1894. On July 11, 1894, Ranney wrote the following letter, which Kimball admits receiving:

“Detroit, July 11, 1894.
“Charles J. Heath and Mr. Kimball.
Gentlemen: Since my interview with you, I have made up my mind to protect my contract interests in your Woodward-avenue property to the best of my ability at the.sale to take place on July 14th inst., particularly as you expressed yourselves unable or unwilling to do so. I shall therefore buy the property, if I can. If I get it, I wish you would come and see me. I may be able to help you. Yours respectfully,
“F. T. Ranney.”

Kimball testified that he learned of this proposed sale, from Heath, upon the 9th of July, and immediately called upon Ranney, and told Ranney that he could not get the sale “off” (we suppose that he meant “postponed”), and asked Ranney why he did not do it, and stated that he was his agent to take care of the property; and that Ranney did not make much reply, except that he had made an effort but could not do it. Subsequently Kimball received the letter mentioned above. Kimball then made an unsuccessful effort to get the bank to postpone the sale. The testimony shows that this could have been accomplished if he would have paid some of the-interest due. At the sale, Ranney bid in the property, subject to the other mortgage, for about $40 more than the amount due and costs. Kimball saw him after the sale, and told him he supposed he had purchased it in his (Kimball’s) interest as well as his own; and he said, “Oh, no; that is my property now;” and that he did not intend to divide it with them {i. e., Kimball and Heath). Kimball then said, “Haven’t I got any time to redeem the property?” and Ranney, after talking over the telephone to Mr. Gray, solicitor for the complainant in the foreclosure proceeding, reported that he had eight days. Ranney procured the money to pay for the property from his father-in-law, Mr. Balch, and gave him a deed of the property by way of security. He subsequently obtained from him money with which he paid the other mortgage, by giving him additional security. Kimball thereupon employed counsel and made an application for a resale, and this was granted upon condition that Ranney should be paid $500 for his services (i. e., interest in the property under the contract), and that a deposit should be made to secure a promised bid for the property. These conditions were not complied with, and finally an order of confirmation was entered under a stipulation reading as follows:

“It is hereby stipulated and agreed that, in the foreclosure proceedings of the Citizens’ Savings Bank, referred to in the record in this cause (file No. 13,565 of the circuit court for the county of Wayne, in chancery), James E. Kimball, on August 25, 1894, filed a petition for the payment to him of the surplus moneys, of $40.35, in court, a copy of which is hereto attached, and that on the same day an order directing such payment was entered, a copy of which is also hereto attached, and that on the same day said surplus was paid to him, and that the same should be considered and read in evidence upon the hearing of this cause, as if the same appeared in the return now on file.”

As shown by the stipulation, Kimball received the surplus paid for the land by Ranney, amounting to $40 or more.

The street-opening matter finally passed the council, and proceedings to condemn the land commenced late in the fall of 1894, according to Ranney’s testimony. A year, or so later, proceedings were begun by Ranney against the city, and these were finally settled in this court in his favor. On July 23, 1895, a portion of the property was sold to Mrs. Davis for $8,500; and on May 30, 1896, Ranney sold his equity in the property to Balch, upon a settlement of their affairs. The bill in this cause was verified February 10, 1898, and asks an accounting by Ranney, and an injunction against the selling or incumbering of the premises by Ranney or Balch. The circuit- court granted the relief prayed against Ranney, and dismissed the bill as to Balch. Both complainant and defendant Ranney have appealed.

The learned circuit judge found that the contract did not require Ranney to see that the property was not sold upon the mortgages, but it was his oj5!nion that the relation which he sustained to the property was such as to forbid its purchase upon his own .behalf, to the exclusion of the complainant, and to make him a trustee for the benefit of the complainant when he acquired title. It is admitted that one who contracts to sell property for another cannot purchase for himself; but counsel assert that this is not such a case, for the reason that he did not sell to himself, or, indeed, sell at all, and that he purchased at a sale which he. was powerless to avert, and only did so to protect himself against loss.

The doctrine invoked by the complainant goes further than to merely forbid .a purchase by an agent from himself, and extends to all cases where the purchase by an agent may be an inducement to omit a duty regarding the subject of the purchase. In Grumley v. Webb, 44 Mo. 444, it was held that an agent cannot be allowed to purchase an interest in property where he has a duty to perform which is inconsistent with the character of a purchaser. In that case the agent took a lease to himself, instead of a renewal of a former lease to his principal. In Martin v. Wyncoop, 12 Ind. 266, it was held that an administrator could not purchase real estate of his testator at a sheriff’s sale, for himself or another, even though it was sold on an execution in his favor levied before he assumed the trust, and although it appeared that he used efforts to make the property sell for the best price possible. The case of Fountain Coal Co. v. Phelps, 95 Ind. 271, affirms the doctrine. In Adams v. Sayre, 70 Ala. 318, Adams was Sayre’s agent having control and posses- ■ sion of mortgaged premises, and performing the duty of managing and renting them, etc., and .was his authorized agent to sell the property. He purchased the property at a foreclosure sale, and it was held that his relation was a fiduciary one as regarded the property, and that he was not permitted to traffic with the subject-matter of his agency, without the consent of his principal, so as to reap a profit for himself. It was said, “The appellant was the agent of the mortgagor to sell the property, and this relationship imposed on him the manifest duty of obtaining for it the highest available price.”

In Newcomb v. Brooks, 16 W. Va. 32, it was laid down as a general principle that “a person who occupies any fiduciary relation to another is bound not to exercise for his own benefit, and to the prejudice of the party to whom he stands in such relation, any of the powers or rights, or any knowledge or advantage of any description,, which he derives from such confidential relation,” and that a [purchase under such circumstances could be set aside by the principal at his pleasure, without any inquiry as to adequacy Of price or fairness of the transaction. This is upon the principle stated by Lord Eldon (Ex parte Lacey, 6 Ves. 627), that:

“ Though you may -see in a particular case that he [the trustee] has not made advantage, it is utterly impossible to examine, upon satisfactory evidence in the power of the court (by which I mean in the power of the parties), in ninety-nine cases out of a hundred, whether he has made advantage or not. * * * The probability is that a trustee who has once conceived such a purpose will never disclose it, and the cestui que trust will be effectually defrauded.”

Mr. Justice Wayne said in Michoud v. Girod, 4 How. 555:

.“The general rule stands upon our great moral obligation to refrain from placing ourselves in relations which ordinarily excite a conflict between self-interest and integrity. It restrains all agents, public and private; but the value of the prohibition is most felt, and its application is more frequent, in the private relations in which the vendor and purchaser may stand towards each other. The disability to purchase is a consequence of that relation between them which imposes on the one a duty to protect the interests of the other, from the faithful discharge of which duty his own personal interests may withdraw him. In this conflict of interest the law wisely interposes. It acts not on the possibility that in some cases the sense of that duty may prevail over the motives of self-interest, but it provides against the probability in many cases, and the danger in all cases, that the dictates of self-interest will exercise a predominant influence, and supersede that of duty. It therefore prohibits a party from purchasing on his own account that which his duty of trust requires him to sell on account of another, and from purchasing on account of another that which he sells on his own account. In effect, he is not allowed to unite the two opposite characters of buyer and seller, because his interests when he is the seller or buyer on his own account are directly conflicting with those of the person on whose account he buys or sells.”

In the case of Neivcomb v. Brooks, supra, it was said further that:

“ This rule is not confined to trustees and fiduciaries, in the technical meaning of the words, but it extends to every person who is within the reason of the rule, — that is, to every person who by his connection with another person, or who by being employed or concerned in his affairs, has acquired a knowledge of his property; and any such person occupying such confidential relation to another comes within the rule we have laid down. In other words, the rule embraces every relation in which there may arise a conflict between the duty which the purchaser owes the person with whom he is dealing and his own individual interest.”

Numerous authorities are there cited, in support of the rule. It was held that:

“A fiduciary cannot make a valid purchase of the trust property, though it be made at a public judicial sale under a decree made in an adverse proceeding. Any such purchase may be avoided, at his option, by any party to whom he holds such fiduciary relation.”

See Ford v. Wright, 114 Mich. 122.

It is urged in behalf of the defendant that all of these cases involve elements of fraud; but it is evident that the decisions were not based upon findings of actual fraud, but rest upon the more solid and sweeping proposition that a trustee cannot deal to his own advantage with the trust fund without the consent of the cestui que trust. Subjected to the test of this rule, we think that Rann'ey had no right to purchase this land, to the exclusion of the complainant, because he had duties that were incompatible with it. He was bound to sell this property as speedily and as advantageously as possible. As a purchaser, his interest was to buy as cheaply as possible. Whether yielded to or not, the impending foreclosure sale, at which he might purchase, presented a temptation to omit the performance of these duties, and delay action until the property should become his, whereby he, and not Kimball, would reap the profit arising from a sale. There is evidence in the case, by both Heath and Kimball, that defendant led them to expect, if he did not promise, that he was able to, and would, protect the title for their mutual benefit. At a late day he informed them that he could not; yet in a very few days afterwards he obtained the money which would have protected it, by taking title and giving security upon the property. It cannot be denied that he gave complainant notice that he would purchase the property for his own benefit, while there was yet 12 or 13 days within which he might have redeemed, but he was unable to do it. We think it did not change the relations, or make the title valid, any more than it would have done had he given him that period to redeem after a confirmation of a purchase made without complainant’s, knowledge. The edge is sought to be taken from the rule by the claim that Ranney found it necessary to do this for the protection of his rights under the contract. His rights under the contract consisted of a prospective commission, to earn which he had made effort, and possibly expended some money, though the latter does not appear. But the sequel has shown, what must have been apparent then, that he could safely have taken care of his own rights without depriving the complainant of his.

Kimball obtained an order for a resale, and finding that he could not comply with the Conditions, or that it would not pay him to do so, took the surplus of the purchase price, and then waited three or four years before instituting proceedings. It is contended that these things amount to a recognition of Ranney’s rights, and a ratification of the sale, and that in any event his laches should estop him from making this claim. The record shows that "complainant tried to adjust this matter satisfactorily. He applied for a resale in the hope that he could save something from the property after his vain effort to effect a redemption within the short period allowed. He sent his attorney to Ranney, offering to pay the amount of his bid and $100 additional for the redemption of the property, but was refused. After the sale was confirmed, he or his counsel took the money remaining after payment of the mortgagee, but for this he is ready to account. We think these things do not estop him from claiming that Ranney bought the property for their mutual benefit. Ranney has not relied upon, or been misled or injured by, them.

Nor do we think the defense of laches should prevail. Ranney was under no obligation to buy this property. He professes to have done so for his own benefit, but so does any agent who buys his principal’s land with a view to-profit. At all events, he bought it, and the law says that-he purchased for the benefit of his cestui que trust. Ordinarily a purchase with such design is meritorious, and the trustee is only required to give the cestui que trust the proceeds. But here there was no such design, and, upon, the contrary, the trustee has set up, and at all times maintained, an unlawful claim. He now says, in effect, that such gratuitous interference gave him the right to say to complainant: “ I now have a deed of your property. Yon must at once relieve me of this burden which I have voluntarily assumed, or your laches will make my title perfect.” We do not take this view of the matter. For his own purposes, Ranney chose to take the property, trusting to his ability to realize from it. He did not ask complainant to relieve him from his burden. On the contrary, he denied his right to do so, and refused the offer made by complainant’s solicitor, which appears to have been made in good faith, and'in the belief that it could be performed. He told complainant the land was his, subject to a right to redeem within eight days. When asked if he “would send complainant to the poorhouse,” he replied that “business is business.” Thereupon he was allowed to sell the property, and complainant now asks the court to give him the trust fund. We concur in the opinion of the circuit court that he is entitled to what is left after reimbursing Mr. Ranney. In addition to the items allowed Mr. Ranney by the decree, we think that he is entitled to interest upon his disbursements, the amount of which should be deducted from the amount of decree. The decree of the circuit court will be modified in this particular, and in other respects affirmed. As the record contains no computation of the amount to be deducted for interest, it will be determined on the settlement of the decree, if counsel do not sooner agree upon it. The defendant will recover costs of this court.

The other Justices concurred.


source: Caselaw Access Project

author: Long, J. Moore, J. Long, J.

license: Public Domain

text:
    PHELPS v. CHICAGO & WEST MICHIGAN RAILWAY CO.
    Railroads — Injury to Employe — Structure Near Track — Assumed Risk.
    A brakeman who, while riding on the side ladder of a freight car, upon the main track, was injured by coming in contact with a fish-chute erected beside the track, at a point near a station, but outside of the yard where trains were made up, is not precluded from a recovery, as a matter of law, on the ground that he assumed the risk of such injury, where, although the chute was in plain view, he was unacquainted with the surroundings; though the rule would be otherwise had the accident occurred by reason of such a structure abutting upon a side track.
    Error to Grand Traverse; Corbett, J.
    Submitted January 3, 1899;
    opinions filed December 12, 1899.
    Rehearing granted September 24, 1900;
    former decision reversed November 13, 1900.
    Case by George W. Phelps against the Chicago & West Michigan Railway Company for personal injuries. From a judgment for plaintiff, defendant brings error.
    Affirmed.

      Smith, Nims, Hoyt & Erwin, for appellant.

      Dodge & Coveil, for appellee.
   Long, J.

Plaintiff was a brakeman in the employ of the defendant .company. For two years prior to the accident complained of, he had been employed by the defendant as a yard-master in its yards at Traverse City; but on Friday preceding April 27, 1896, he had been transferred ' from that work to brake on a freight train running from Traverse City to Petoskey and Bay View. At Petoskey the defendant’s road is' located near to, and conforms to, the bay. On the northerly side of the track, and about 40 ' feet from it, was located'a fish-house, for the storage and packing of fish. Leading from the platform of the fish-house to the railroad side track was an inclined platform or chute, about 4 feet in width, constructed of planks, and about the height of the floor of a car, over which fish-cars were run between the fish-house and the defendant’s cars. This chute extended up to within 12 or 13 inches of the side of the freight cars standing on the side track. On April 27, 1896, the plaintiff made a trip to Petoskey as a brakeman. When the train reached Petoskey, two box cars were standing on the side track northerly from this fish-chute. These cars were to be moved upon the main track. For that purpose the engine was run north to the switch opening into the side track; and, after the switch was thrown by the plaintiff, he coupled the engine to the cars, then got upon the first car, walked on the top of it, and got down onto a ladder attached to the side of the other car, next to the fish-chute. The plaintiff stood on the lower step of the ladder, held onto it with his left hand, and with the other took hold of a lever at the end or corner of the car for the purpose of uncoupling the cars; his intent being to cut off the car upon which he was standing before it got onto the main track. After the cars were under motion, he attempted to uncouple, and while in this act his body came in contact with the fish-chute, and he was forced between it and the car, and Seriously injured.

Plaintiff testified that this was the first time he had ever done any work in that yard; that he did not see the fish-chute, and had no knowledge it was there. The court charged the jury that it was the duty of the railway company to provide a reasonably safe place for its employés in the performance of the duties in which they were employed; and if the jury found from the evidence that the fish-chute wás built so near the main track of defendant’s road that there was not sufficient room for persons to pass between it and an ordinary box car moving upon the track, and the plaintiff, without fault on his part, was unconscious of the conditions there, and was injured as claimed, he would be entitled to recover. The jury returned a verdict in favor of the plaintiff for $500. Defendant appeals.

Defendant contends that the plaintiff must have known from his experience that all' railroads have platforms where they handle freight at freight houses; that this fish company was shipping a large amount of fish over this road; that in going from'the depot, either in riding upon the pilot or the gangway of the engine, to the switch, plaintiff was facing this fish-chute, and must have seen the situation therein passing it; that, had he looked at the fish-house, he must necessarily have seen the chute; that he was guilty of contributory negligence in not having seen it in passing by, as it was broad daylight at the time of passing; that it was his duty to be watchful for his personal safety; and that, in the absence of knowledge of his surroundings, there was an increased duty to use his senses, and not proceed blindly with his work. Defendant asked the court to charge the jury:

“Even though the plaintiff did not actually know of the presence of said fish-chute, if the same was in plain view, and the danger in attempting to pass by the same, riding on the side of the car, was apparent, and the plaintiff failed to see the fish-chute and to apprehend the danger, it was his own fault, arising from his inattention or failure to note his surroundings when he got on the ladder on the side of the car; and, if you find this condition to be true, then you are instructed, as a matter of law, that the plaintiff would not be entitled to recover.”

This was refused. The court charged the jury upon this subject that:

“It was the duty of the plaintiff to use reasonable care and caution in the performance of his labors as brakeman, and, to that end, he was required to make close and careful observations as to the main and side tracks, and note all objects of danger situated at or along the same; and if he failed to do so, and afterwards sustained an injury on account of not seeing or observing such obstruction or object, then you are instructed, as a matter of law, that said plaintiff cannot recover, and your verdict should be for the defendant.”

Also, the court charged:

“The defendant’s claim or theory is that the presence of the fish-chute was known to the plaintiff, and that he thoughtlessly took his position on the side of the car, and without looking was carried forward against said chute, and thereby injured, and that said injury would not have happened but for the inattention of said plaintiff. Now, you are instructed, as a matter of law, that if you find this theory of defendant to be true, your verdict should be in its favor.”

The testimony clearly shows that, had plaintiff looked, he could have seen this fish-chute. It was not negligence for the defendant to place it there for the convenience of its business. It was no more a dangerous object than a platform of the same height would be, placed as near this side track, and was as plainly to be seen. The plaintiff, in engaging as a brakeman, assumed the risks incident to such employment; and we think this was one of the assumed risks. Elliott, in his work on Railroads (volume 3, § 1290), lays down the rule of assumed risks as follows:

‘ ‘ The employé assumes all the risks of the service in which he voluntarily engages, except such as arise from negligence on the part of the employer; so that, in whatever form the question may arise, the general rule must be that risks of the service shall not be increased or caused by the employer’s negligence; but risks not increased or caused by the employer’s negligence are risks of the service which the employé assumes. The test is not danger, but negligence on the part of the. employer.”

At section 1269 the same author, after speaking of the rules laid down by courts in the different States in reference to structures so near the' tracks as to endanger the safety of employés while engaged in the performance of their duties, continues:

“ It seems to us that where the employé has knowledge, or is chargeable with knowledge, of the existence and situation of such structures, he assumes the risk of dangers from them; for we can see no reason why the general rule that an employé assumes the risk of the dangers of the service does not apply. * * * Some of the courts seem to require proof of actual knowledge in order to exculpate the employer, but we think this view erroneous; for, if the facts are such as make it negligence on the part of the employé not to know, there can be no recovery.”

This was the rule laid down by this court in Illick v. Railroad Co., 67 Mich. 632; Pennington v. Railway Co., 90 Mich. 505; Manning v. Railway Co., 105 Mich. 260; Ragon v. Railway Co., 97 Mich. 265 (37 Am. St. Rep. 336). This rule is fully sustained by the Massachusetts cases. Austin v. Railroad Co., 164 Mass. 282; Lovejoy v. Railroad Co., 125 Mass. 79 (28 Am. Rep. 206); Goodes v. Railroad Co., 162 Mass. 287; Content v. Railroad Co., 165 Mass. 267; Ryan v. Railroad Co., 169 Mass. 267; Bell v. Railroad Co., 168 Mass. 443. This same rule is recognized by the courts of Iowa, Indiana, and New York. Brown v. Railway Co., 69 Iowa, 161; Pennsylvania Co. v. Finney, 145 Ind. 551; Gibson v. Railway Co., 63 N. Y. 452 (20 Am. Rep. 552). It may be said that the rule here laid down is in conflict with Sweet v. Railroad Co., 87 Mich. 559. In that case I am of the opinion that the rule of assumed risk was overlooked, and that the case went off on the principle of ■the master’s duty to furnish a safe place for his employés. At least, the case has not since been followed by this ■court, as reference to Pennington v. Railway Co., 90 Mich. 505, Manning v. Railway Co., 105 Mich. 260, and Ragon v. Railway Co., 97 Mich. 265 (37 Am. St. Rep. 336), illustrates.

Under the circumstances shown by this record, the court should have directed the verdict in favor of defendant.

Judgment reversed, and a new trial ordered.

Grant, C. J., and Hooker, J., concurred with Long, J.

Moore, J.

(dissenting). I cannot agree with the opinion written by Justice Long. In addition to the statement of facts contained in his opinion, it ought to be said the fish-house is not near the freight depot or platform. The fish-chute was built in two sections. The section nearest the platform of the fish-house was removable, so that a team could be driven between the platform of the fish-house and the permanent portion of the chute. There was a short toe door to reach from the solid portion of the chute to the floor of the car which was to be loaded. It is very clear, from the testimony, there was nothing in the way of making the toe door longer, and the solid portion of the chute shorter, so as to insure the safety of the railway employés when they were dischai’ging the duties incident to their employment. If the safety of the men had been given as much consideration as was given' to the convenience of those who wanted to reach the platform of the fish-house with teams, the chute would have been built upon different lines. The case is clearly within the principles laid down in Sweet v. Railroad Co., 87 Mich. 559. It is suggested that this case was not followed by the later cases in this court, and that they justify the opinion written by Justice Long. I do not so read the cases. In the case of Pennington v. Railway Co., 90 Mich. 505, it was held there was a fatal variance between the declaration and the proofs. The opinion shows:

“ The deceased was familiar with all the surroundings. He knew that the train was in motion; that, if it did not stop, he must strike this post, which was less than 20 feet distant. '* * * There is no evidence nor claim that the rules of the defendant required the deceased to descend from the cars when in motion in this dangerous place.”

The case is easily distinguishable from the case of Benage v. Railway Co., 102 Mich. 72. In that case deceased was riding in a confessedly unsafe place, in violation of the rules of the company, and when a safe place had been provided for him. The court said that, as a matter of law, under such circumstances the deceased was guilty of contributory negligence. Nor is the case of Manning v. Railway Co., 105 Mich. 260, controlling. It was claimed the deceased was killed by striking a tree near the track. It appears by the opinion that “there was an utter lack of evidence in the case to show that the deceased came to his death in the manner set out in the declaration.” It also appeared that :

“The road ran through a piece of woods. It was in process of construction, and not yet finished. The deceased was 24 years of age, and accustomed to work at that kind of work. The trees were along the track on either side, and in plain view. The tree in question was plainly visible. The deceased, when he entered the employ of the defendant, knew that he was to work upon a construction train, and could see at a glance that the road was not finished, and that trees bordered it on either side. As a general rule, it is the duty of a railway company to furnish its employés a safe place to work while operating its trains; yet the rule must be considered with some qualifications when a new road is being built. The employé cannot complain of the imperfect condition of a road he is employed to assist in making perfect. He must take the risks naturally incident to such employment. He assumes greater risks upon such a road than upon a completed one, where he might expect that the track was clear and all obstructions removed.”

In the case at bar the plaintiff was in the discharge of the duties incident to his employment. He was performing them in the usual way they are performed when operating cars upon the main line. The accident occurred upon the permanent track of an old road. The plaintiff claimed, and the jury found, that he knew nothing of the existence of this dangerous structure, either from observation or from having been warned of its existence. The testimony of the plaintiff brought the case within the general rule of a safe place in which to work. The judge carefully laid down the rules of law which should govern the case. I think the judgment should be affirmed.

Montgomery, J. I think the question of assumed risk a proper one for the jury.

ON REHEARING.

Long, J.

A motion for rehearing has been granted in this case; and, upon further consideration, we are now satisfied that the fish-chute complained of abuts upon a part of the main track, and not upon the side track, as held in the former opinion, and that such main track upon which the fish-chute abuts is not within the yards of the defendant company. The rule is very different than where such obstruction abuts upon a side track. Such ' conveniences near side tracks, or abutting on them, are usually necessary for the conduct of railroad business, and, in making up trains, brakemen and switchmen must be on the lookout for them; while, where they abut on the main track, and not in yards where trains are usually made up, servants of railroads may expect that such obstacles will not be placed in so close proximity to the track as to make them dangerous. The plaintiff was not familiar with the surroundings, and had had no opportunity to make himself familiar with them. The rule might be different had he been familiar with the position of the. chute. For these reasons, the judgment must be affirmed.

The other Justices concurred.


author: Montgomery, J. Long, J. Per Curiam.

text:
    POTTER v. DETROIT, GRAND HAVEN & MILWAUKEE RAILWAY CO.
    1. Railroads — In jury to Employé — Pleadings and Proofs — Varianoe.
    Where, in an action against a railroad company for personal injuries, brought by a brakeman who was struck, while climbing the side ladder of a car, by a telegraph pole alleged to have been placed too near the track, the declaration averred that it was necessary for him to ride on the ladder, and the proofs showed only that he was expected so to ride when climbing to the top of a car, there was no such variance as would work a surprise to defendant.
    2. Same — Post Near Track — Assumed Risk.
    It cannot be said, as a matter of law, that a railroad brakeman assumed the risk of injury from coming in contact with a telegraph pole negligently placed so near to a side track as to prevent him, when riding on the side ladder of a car, from passing it in safety, where, though it appears that he had walked by the pole and had ridden by it on the tops of cars several times previous to the accident, it further appears that the other poles along the line were not so placed, and it is not shown that he had actual knowledge of the dangerous proximity of the pole in question. Long, J., and Grant, C. J., dissenting. ^
    3. Same — Right of Action — Release—Consideration.
    A release given by a brakeman to a railroad company, reciting that he had received certain injuries, and that, to avoid litigation, he, in consideration of re-employment by the company for such time as might be satisfactory to it, released such company from all claims for damages for such injuries, is without consideration, where he was, at the time it was given, in the employ of the company.
    ON REHEARING.
    Trial — Misconduct of Counsel — Argument to Jury.
    Where the trial judge does nothing to check plaintiff’s counsel in the use in his argument of language so intemperate and •improper as to be prejudicial to defendant, it is reversible error.

      Error to Shiawassee; Smith, J.
    Submitted January 3, 1899;
    opinions filed December 12, 1899.
    Rehearing granted January 23, 1900;
    former order vacated April 3, 1900.
    Case by Frank A. Potter against the Detroit, Grand Haven & Milwaukee Railway Company for personal injuries. From a judgment for plaintiff, defendant brings error.
    Reversed.

      E. W. Meddaugh (Geer & Williams, of counsel), for appellant.

      Watson & Chapman, for appellee.
   Montgomery, J.

The plaintiff was an employe of the defendant as a freight brakeman. On the l?th of September, 1892, in the evening, at about 8:30, the train arrived at Milwaukee Junction, where two, cars, standing on the “ East Y,” so called, were to be attached to the train, and pulled over a switch that led off the main track to the east Y. Plaintiff turned the switch, gave the signal for the train to back down on the east Y, where the cars to be taken on were, preceded the train down the Y, and made the coupling. The conductor gave the signal to go-ahead. Plaintiff testified that he started to climb up the side ladder of the car, and had gotten part way up, when he was struck by a telegraph pole, and injured somewhat seriously. The testimony shows that plaintiff had been in the employ of defendant as a spare brakeman for 9 days during March and 19 days during April of the same year, and again from May 3d to some time in June, when he went to Pontiac; that he returned to work for the company in August, and worked on a passenger train during -that month, and until September 14th; that on the 15th of September he left Detroit for Holly on a freight train, returned to Detroit on the morning of the 16th, and was at Milwaukee Junction at about 4-:50 a. m. While doing work as a freight brakeman, the plaintiff passed Milwaukee Junction frequently, and took on cars there. He testified that he did not do any coupling at the east Y, but the testimony is quite convincing that he did. He testified that he had no knowledge that this pole was near enough to the track to be dangerous. From a judgment for plaintiff, defendant appealed.

It is contended that there was a fatal variance between the proof and the declaration. The declaration was as follows:

“And for that whereas, on, towit, the l?th day of September, 1892, said plaintiff was, and for a long time previous thereto had been, employed by said defendant as brakeman on its cars in the yard at Milwaukee Junction, a station along the line of said railroad; and, in the performance of the duties imposed on said plaintiff by said defendant in the employment aforesaid, it became and was necessary for said plaintiff to ride back and forth in said employment on the side of the railway cars, clinging to the steps or ladders placed on the side of said cars by said company for that purpose, and which is the usual manner of performing and going to and from the work in and about which plaintiff was employed. * * * But, notwithstanding the duty aforesaid of the said defendant, it wholly neglected and refused to perform such duty towards said plaintiff, in that it placed and permitted to remain a post or telegraph pole so near one of the tracks of said railway in said yard that, while said plaintiff was in the performance of his duty, and while riding along on the side of one of the defendant’s cars, as aforesaid, he would be struck by said post or pole, and there was not sufficient room between said car and said post or pole to allow the body of said plaintiff, while engaged in his duties as aforesaid, to pass without injuring him. * * * And while in the performance of his duty, as aforesaid, and while riding on the side of a moving car, as aforesaid, in the performance of such duty, he was struck by said post or telegraph pole, negligently left standing by said defendant so near its track in said yard, and was knocked from the side of said car,” etc.

There was testimony that it was necessary to climb up the ladders of the cars while in motion, but the evidence did not show that the brakemen were expected to ride on the sides of the cars except in-this way. The testimony was not objected to, but at the close of the case the defendant’s counsel asked an instruction that there was a fatal variance. We think the proofs' tended to support the averments. It is true that the evidence failed to show that the plaintiff could have properly ridden continuously on the side of the car, but the proof indicated that he might lawfully ride there while ascending to the top of the car. We do not think there was such a variance as to work a surprise to defendant.

It is next contended that the plaintiff assumed the risk of contact with the telegraph pole, and that a verdict should have been directed on that ground. In .this connection it is insisted that the evidence shows conclusively that the plaintiff either knew, or should have known, of the proximity of this' pole to the track, and testimony which is very convincing, if not conclusive, is cited to show that plaintiff had on previous occasions assisted in taking cars off the east Y; and if this fact were enough to establish that plaintiff either knew, or from the nature of his employment ought to have known, that this pole was located so near the track as to be dangerous, we should be inclined to assent to the contention of counsel. But we are not prepared to say that if the plaintiff had the opportunity which would be afforded by walking past this pole, or riding back and forth on the tops of cars, he was bound to make so close an inspection as would enable him to discover that the pole in question, instead of being in a safe location, was a few inches too near the track.

It is, however, contended that, as matter of law, the plaintiff must be held to have assumed the risk of such structures near the track as the pole in question. It is said that the principle which plaintiff’s counsel invoke, that it is the duty of the master to provide a safe place for his employésto work, is not applicable; that—

“That principle properly has reference solely to the adequacy of a structure or device that the employer has provided for use of the employe, and in or upon which the employé has to do his work, or to the hazards which the employé may he subjected to through the employer’s negligence in conducting operations on or about the place while the employé is at work.”

If we correctly understand this contention, we think it makes for a rule much too narrow. A place may be rendered unsafe as well by being so placed with reference to adjacent objects as by inherent defects in the place or device itself. We have no hesitancy in saying that, if we leave aside the question of assumed risk for the moment, a railroad company which, without necessity, locates telegraph poles so near to the track over which its employés are required to operate its trains as to render it unsafe for such employés to operate the trains in the ordinary way, without meeting with injury from such structures, has failed in its duty to provide a safe place. Walsh v. Navigation Co., 10 Or. 250; Illinois Central R. Co. v. Welch, 52 Ill. 183 (4 Am. Rep. 593); Johnson v. Railway Co., 43 Minn. 53; Houston, etc., R. Co. v. Oram, 49 Tex. 341; Chicago, etc., R. Co. v. Russell, 91 Ill. 298 (33 Am. Rep. 54); Whipple v. Railroad Co., 19 R. I. 587 (61 Am. St. Rep. 796); Scanlon v. Railroad Co., 147 Mass. 484 (9 Am. St. Rep. 732); Sweet v. Railroad Co., 87 Mich. 559; Allen v. Railway Co., 57 Iowa, 623 (5 Am. & Eng. R. Oas. 620).

The employé is, however, held to assume the risk of injury from such structures as he knows of, or ought, in the exercise of common prudence, to be acquainted with, and the difficulty in any given case is chiefly in determining whether the obstruction belongs to this category. In applying the rule of assumed risks, the courts have not always been consistent, and different courts have reached different results on the same state of facts. A brief review of some of the cases may be of interest. In Massachusetts, in Lovejoy v. Railroad Co., 125 Mass. 79 (28 Am. Rep. 206 ), it appeared that a signal post was placed 3 feet and 8 inches from the track, and plaintiff, an engineer, while leaning out of his cab, looking for a signal, came in contact with it, and was injured. It appeared that the abutments of 46 bridges, numerous buildings, entrances to stations, and other structures on the line of the defendant’s road, were the same distance from the track. These facts were known to the plaintiff, although he 'had not, previous to the injury, noticed this particular post. It was held that if there was any danger to the plaintiff, while he was in the performance of his duty, from the structures so placed, it was a risk he assumed. The court said, “He knew the manner in which the road was constructed, the proximity to the track of these structures, and the methods employed in the management of the trains.” In Fisk v. Railroad Co., 158 Mass. 238, it appeared that plaintiff, a freight brakeman, was injured by contact with an overhanging awning at a station. All the principal stations on the road had such awnings, and plaintiff knew there was an awning at the station where he received his injuries. It was held that he assumed the risk. The case of Scanlon v. Railroad Co., 147 Mass. 484 (9 Am. St. Rep. 732), illustrates the distinction made by the Massachusetts court. Plaintiff, a brakeman, came in contact with a signal post 3|- feet from the track. He had no previous knowledge of the proximity of this post or other objects to the track. Defendant showed that an examination of the permanent structures along the line of the road disclosed that several structures were as near the track as the post in question; but the court said:

“The danger, the risk of injury, which it is claimed the plaintiff assumed, was not the particular danger from the post which caused the injury, but the general danger from the structures and erections near the track. The plaintiff had no actual knowledge of the danger, and he cannot be held to have assumed the risk of it unless the character of the danger and the circumstances áre such as to show that he ought to have known and appreciated it. The fact that it was incident to the employment is not sufficient. Peril from dangerous machinery, or appliances, or structures is incident to employment upon them, but tbe risk is not assumed by the employe unless he knows the danger, or unless it is so obviously incident that he will be presumed to know it.”

In Illinois Central R. Co. v. Welch, 52 Ill. 183 (4 Am. Rep. 593), the plaintiff, a brakeman, was injured by an overhanging awning. It was said by the court:

“There are many freight depots and station houses upon the line of the Central Railway, and it would be preposterous in us to say, or to ask a jury to say,- that a brake- • man engaging in the service of the company must be held to know whether or not there may be one among them whose roof or awning so projects over the line of road that a brakeman on a freight train, in the performance of his duties, would be liable to be swept from the train by collision with it.”

See, also, case of Chicago, etc., R. Co. v. Russell, 91 Ill. 298 (33 Am. Rep. 54),— & case of an injury by a telegraph pole.

In North Dakota, in the case of Boss v. Railroad Co., 2 N. Dak. 128 (33 Am. St. Rep. 756), it appeared that a switch target was located so near to the track that an employé was struck by it. The company was held liable. As to plaintiff’s duty the court said:

“Nor can we say that plaintiff, in the ordinary exercise of his faculties, was bound to know the condition of that switch-stand. It is true that he had passed it upon this train nearly every day for two weeks, but he had no duty to perform in connection with the running of the train; nothing in any manner that would be likely to call his attention to the condition of this switch-stand.”

In Wisconsin the test of liability seems to be whether the obstruction or structure dangerously near to the track was necessarily placed there. In Kelleher v. Railroad Co., 80 Wis. 584, an employé was injured by coming in contact with a coal-shed 22 inches from the side of the car. The plaintiff was held entitled to recover. The court say: “ It is objected that the true test is not whether it was ‘ unnecessarily ’ dangerous, but whether it was unreasonably dangerous. This contention cannot prevail. It is settled in this State that the duty of the company is to see that its tracks are not so obstructed as to render the duties of its employés unnecessarily hazardous,”—citing Dorsey v. Construction Co., 42 Wis. 583, in which case it .was held that, although plaintiff had passed the structure every day for five months, the question of whether he ought reasonably to have known of the danger was for’ the jury. In Scidmore v.. Railway Co., 89 Wis. 188, the court held that the maintenance of a clearance post' was not negligence, and that the plaintiff, knowing that such posts were maintained by the defendant, could not recover for injuries received by coming in contact with one of them. The holding of the latter position is consistent with all the cases, including those cited from Massachusetts; but the holding that the maintenance of the clearance posts so near the track was not negligence can only be reconciled with the earlier Wisconsin cases on the ground that such posts are necessarily placed thus close to the track.

In Kansas the duty of the company to refrain from placing structures so near the track as to cause unnecessary peril to the employé is maintained. The court, in St. Louis, etc., R. Co. v. Irwin, 37 Kan. 701 (1 Am. St. Rep. 266), recognizing the rule of assumed risk, say:

“The law, however, does not require that an employe shall know of all defects or obstructions that may exist on the road, or in the service in which he is engaged; and it cannot be said that the peril in this case was so obvious and patent that Irwin must have known it. He had a right to assume that the company had done its duty, and placed its track in such a condition that he could perform his duties with reasonable safety.”

In Johnston v. Railway Co., 23 Or. 94, deceased was a switchman. He was injured by being struck by a target pole so near the track as to strike him as he passed by on the side of the car. A recovery by the executor was sustained. As to assumed risk, the court said:

“It is not expected of a switchman that he should carefully measure the distance between a switch target and. the rail. This is the duty of the master, and the servant has the right to assume that the target or other obstruction is at a reasonably safe distance, in the absence of anything to excite special apprehension of danger.”

The same rule obtains in Texas. In Bonner v. La None, 80 Tex. 117, it was held that a railway company is responsible to one of its employés for negligently constructing a target so close to the track as to cause injury to the employé while in the line of his duty, if the employé could not reasonably have anticipated the danger. And, on the other hand, it is held that, if the employé knows of the conditions, he takes the risk. Missouri, etc., R. Co. v. Somers, 71 Tex. 700. In the latter case the court state the rule as follows:

“The employés of the company are not called upon to inspect the machinery, roadbed, or cattle-guards. It is the duty of the company to have all these inspected, and tb know that they are reasonably safe, and the employé has the right to rely upon its discharge of that .duty. But when he is aware that a large number of cattle-guards are dangerous, and in this regard they are substantially alike, so far as his knowledge extends, he must know better than to rely upon the safetj- of any of them.”

In Indiana the rule is the same. In Louisville, etc., R. Co. v. Wright, 115 Ind. 378 (33 Am. & Eng. R. Cas. 370, 7 Am. St. Rep. 432), the case of Illinois Central R. Co. v. Welch, 52 Ill. 183 (4 Am. Rep. 593), is cited with approval, and the court add:

“ A person contracting to work upon a railway as a brakeman assumes the risks ordinarily and properly, incident to such service, but he does not, by such hiring, assume the risk of unusual dangers of which he has no knowledge, or of which he is not bound to take notice.”

The same rule is maintained in Rhode Island. Whipple v. Railroad Co., 19 R. I. 587 (61 Am. St. Rep. 796), is substantially on all fours with the case under consideration. Speaking of the duty of the plaintiff to know of the proximity of the telegraph pole to the track as affecting the question of assumption of risk, the court say:

“We do not think that the fact was sufficiently obvious. The difference between the distance which the pole stood from the track and the distance which would have been safe was only seven or eight inches. The plaintiff had never, before the accident, so far as appears, passed or attempted to pass the pole on the side ladder of a car. The only opportunities which he had had to judge of its proximity to the track were from passing it on foot and on the tops of moving cars in the course of his employment, neither of which situations would bé favorable for estimating, the distance of the pole from the side of a car moving along the track with sufficient accuracy to know whether or not the pole was safe, the margin of safety or danger being so slight a space.”

In Johnson v. Railway Co., 43 Minn. 53, which was a case of a signal post, the court held that the employé was not to be held to have assumed the risk, in the absence of notice, unless it was apparent. See, also, Atlanta, etc., R. Co. v. Woodruff, 66 Ga. 707.

Other cases might be cited, but it is believed that these cases from Illinois, Oregon, Minnesota, Texas, Massachusetts, Iowa, Wisconsin, Kansas, Indiana, Georgia, and Rhode Island sufficiently indicate the trend of authority. In a general way it may be said that the cases which deny liability rest upon the ground that the obstruction in the particular case was not a negligent obstruction, as in Randall v. Railroad Co., 109 U. S. 478, and Illick v. Railroad Co., 67 Mich. 632; or that the plaintiff, having previous knowledge of the situation, assumed the risk, as in Pennington v. Railway Co., 90 Mich. 505, where there was actual knowledge; or as in Manning v. Railway Co., 105 Mich. 260, and in Missouri, etc., R. Co. v. Somers, 71 Tex. 700, where he knew of similar obstructions, and is not held excused from the duty of discovering the particular one. The correct rule is tersely stated in 3 Elliott, R. R. § 1269:

“ It seems to us that, where the employé has knowledge, or is chargeable with knowledge, of the existence and situation of such structures, he assumes the risk of dangers from them.”

To say just when the servant not having actual knowledge of the obstruction causing the injury is chargeable with such notice is not always an easy task. As we have seen, if he knows that other like obstructions exist along the way, this is notice; but, in the absence of such circumstances, we think that wrong is not to be imputed to the employe for not assuming that his employer will unnecessarily and negligently expose him to danger. We think this case was one for the jury.

It is claimed that error was committed in the admission of testimony of medical experts. Dr. Hume, Dr. Phippen, and Dr. Perkins examined the- plaintiff shortly before the trial. The testimony which they gave as to the examination, and what it disclosed, was not objected to. A hypothetical question was then put, and it is contended that, by the terms of the question, the witness was at liberty to consider the subjective symptoms in giving his answer. The question did not call upon him to do so, and no such specific objection was made on the trial. We think there was no error in this ruling. .

Some time after plaintiff received his injuries, and on October 31, 1892, he signed a release reciting that he had received certain injuries, as follows: “At Milwaukee Junction, while riding on a ladder of car, was knocked off by a post standing a little west of the road crossing, cutting the side of my head, and bruising my shoulder; ” and, after reciting that the company denied liability, for the purpose of determining and ending the question of liability and to avoid litigation, in consideration of reemployment by the company, the release proceeds: “I do hereby waive and relinquish all claims that I may have against the said company for damages for the aforesaid injuries, and do hereby release the said company of and from all claims for damages as aforesaid.” The recited consideration for this release is “the re-employment by the said company for such time only as may be satisfactory to the said company.” The testimony shows that, at the time when the release was signed, the plaintiff was already again in the defendant’s employ. No change as to the terms of employment was made, nor was the defendant company bound to retain him in its employ for any length of time whatever. There was no consideration for the release. The case is, in this respect, very similar to Purdy v. Railroad Co., 125 N. Y. 209 (21 Am. St. Rep. 736). It is unnecessary to review the, instructions relating to this feature of the case.

A motion for a new trial was made, and error is assigned on the refusal to grant this motion. It is argued that the great weight of the testimony shows that the plaintiff rode past the post in question a great number of times. If this fact were controlling, we should be strongly inclined to accept the view of defendant’s counsel that a new trial should be awarded. We do not, however, regard the fact as conclusive of defendant’s claim. The inference to be drawn from the fact was for the jury.

We discover no material error. The judgment is affirmed.

Moore, J., concurred with Montgomery, J. Hooker, J., concurred in the result.

Long, J.

(dissenting). The plaintiff entered the service of the defendant as a brakeman on March 22, 1892, having previously had considerable experience in that line of work on other roads. He worked upon freight trains 9 days in March and 19 days in April, and on freight and mixed trains 29 days in May, running between Detroit, Pontiac, Holly, Owosso, and other western points, including Grand Rapids. In the performance of his duties as a brakeman, he rode on the tops of box cars coming into all stations, and in going to and fro between Milwaukee Junction and the station at Detroit. He went to Pontiac in June, and while there worked on the Orchard Lake Branch. He returned to Detroit in August, and worked on passenger trains between Detroit and Grand Haven during that month, and from September 1st to September 14th. On September 15th he left Detroit for Holly on a freight train, and returned to Detroit on the morning of the 16th, when he went in on the “ East Y,” so called, and assisted in picking up 23 cars. These cars were taken off the east Y at 4:50 a. m., standard time, as the record shows. On the evening of the 16th of September he left Detroit for Owosso, with a train, and returned on the -evening of the 17th. This train arrived at Milwaukee -Junction at about 8:30 p. m. The conductor'learned that there were some cars on the east Y to be taken to Detroit, .and the train pulled down to Milwaukee avenue. The engine and two cars were cut off the train, and pulled oyer the switch that leads off the main track to the east Y. Plaintiff turned the switch, went back on the east side of the track, 4 or 5 feet distant from the east rail, giving his signals, with his lantern, to the fireman, as the track upon which the coupling was to be made was on a -curve. He continued to signal the engine back until it reached the cars that were to be picked up on this Y. The coupling was made, the conductor gave the signal to go ahead, and the engineer pulled the cars out on the main line. The plaintiff, instead of getting into the cab of the engine, or walking to the switch, climbed on the ladder on the side of the car, and, as the train pulled out over the Y, came in contact with a telegraph pole that stood on the east side of the Y track, and about 4 feet distant from the track, and sustained the injuries complained of.

This pole was in the same position as when the plaintiff -entered the defendant’s employ, and had been in the same place for many years. The east Y was used to store cars that came off the different roads, destined for Detroit. It had been so used for a good many years, and no one had ever come in contact with the pole before, although trainmen had often ridden by it on the sides of cars, in the night-time as well as in the daytime. The plaintiff had frequently assisted in picking up and leaving cars at Milwaukee Junction, and in so doing had passed and repassed the pole in question. He passed the telegraph pole at least '50 times on trains before his injury. He had been in on the east Y at least 10 times before, and had assisted each time in picking up cars on the Y. It is true that he denied ever having seen the pole, or that he had ever been in on the Y before; but the defendant’s witnesses, corroborated as they were by the daily records kept by the conductors and the car-checkers, and by the books of the train-master, from which the plaintiff’s pay-checks were made, which plaintiff admitted to be correct, made, as they were, by different persons in different departments and for different, purposes, and all agreeing, compel the conclusion that the plaintiff was on the Y as the defendant’s witnesses testified, and had assisted in picking up 94 cars there before he was hurt. Thus it appears that the plaintiff had been in the defendant’s service for nearly six months, and a considerable part of his time had been spent on freight trains running between Detroit, Grand Rapids, and intermediate points. The evidence shows that, in doing his work, he had stopped at all, or nearly all, of the stations along the defendant’s line of road, to take on and put off cars, and that, in doing his work at the several stations, he must have become familiar with the structures, not only along the line of the main track, but on the side tracks and in the yards and stations of the line, if he was attentive to his surroundings, as it was his legal duty to be.

If the plaintiff could not, in six months, have made himself familiar with the location of structures such as awnings, freight platforms, cattle-chutes, coal-bins, side tracks, Y’s, telegraph poles, and other necessary structures adjacent to the tracks and Y’s at stations and in yards along the entire line of the defendant’s road, such knowledge can never be presumed from lapse of time, coupled with opportunity to acquire it. The rules of the company, of which he had a copy, required him to examine all machinery, tools, cars, engines, and tracks before exposing himself to danger, and to take sufficient time to make such examination. There is no evidence in this record to show that the pole in question was nearer the track than many others, or than other structures in defendant’s yards and stations along its entire line. This casualty occurred on a side or Y track in the defendant’s freight yard, and with reference to such tracks a different duty to the servant devolves upon the master than that with reference to the main track, as we have held. Michigan Central R. Co. v. Austin, 40 Mich. 250; Batterson v. Railway Co., 53 Mich. 125; Heivitt v. Railroad Co., 67 Mich. 61; O’Donnell v. Railway Co., 89 Mich. 174. We think that the plaintiff’s opportunities of knowledge of this pole were such that he must be held to have known of its existence and location. The decisions of courts in diffei*ent States are not harmonious in applying the rule of assumed risks. Different courts have reached different results on the same state of facts. The cases in this State, however, are quite uniform, and we think that this case is clearly within the holdings of this court in Illick v. Railroad Co., 67 Mich. 632; Pennington v. Railway Co., 90 Mich. 505; Ragon v. Railway Co., 97 Mich. 265 (37 Am. St. Rep. 336); and Manning v. Railway Co., 105 Mich. 260.

In Illick v. Railroad Co., supra, the negligence charged was that the bridge was too narrow, and that, by reason thereof, a brakeman was injured by coming in contact with the side of the bridge while in the discharge of his duty. He had passed over the bridge a good many times, but there was no evidence that he knew just what the space was between the side of the car and the bridge. Held, that he assumed the risk. Pennington v. Raihvay Co., supra, was a similar case. The deceased was a brakeman engaged in switching cars, and was caught between the side of a car and a building only 13 inches distant, while descending on the side of a car. He had done work in the yard before, and in that way had become familiar with the building, but there was* no evidence that he knew the exact distance between the side of the car and the building. Held, that he assumed the risk. In Ragon v. Railway Co., supra, a brakeman was injured in making a coupling on a side track that was not properly ballasted. The plaintiff testified that he did not know of the hole. The evidence, however, showed that he had been in the employ of the defendant for some time, and that he had passed and repassed the yard and switch in question on the main track. Held, that he assumed the risk. It is difficult to distinguish this case, in principle and in its facts, from the present case. If a .brakeman is negligent in failing to see a hole in a side track, while performing work on the main track, it is difficult to see why he should not be held negligent in failing to see a telegraph pole by the side of the track, that he had passed and repassed frequently, as in this case. In Manning v. Railway Co., supra, the negligence charged was that a tree was permitted to stand too close to the track. The brakeman who was killed commenced working upon that particular train that morning. There was no evidence that he knew, or that he had had an opportunity to learn, the exact distance between the tree and the side of the car. It was held that he assumed the risk.

The following cases, decided by the courts of other States, sustain the view here taken: In Lovejoy v. Railroad Co., 125 Mass. 79 (28 Am. Rep. 206), an engineer was injured by coming in contact with a signal post at the side of the track, 3 feet and 8 inches distant therefrom, while leaning out of the engine, and looking back to get a signal from the conductor. It appeared that he knew of the signal posts along the line, but that he had not noticed the one that caused his injuries. Held, that he assumed the risk. In Fisk v. Railroad Co., 158 Mass. 238, a freight brakeman was injured by coming in contact with a wooden awning projecting from a passenger station. He had worked on that line of road for two years. He was acquainted with the station, and knew that there was an awning there. On a dark and rainy night he started to go up on the side ladder of a freight car that had come from another railroad, and in passing the station struck against the awning. The car was higher than others. He had ridden on such cars before. Held, that he assumed the risk. In Thain v. Railroad Co., 161 Mass. 353, an engineer was carried against a wooden post standing 4 feet from the track and 2 feet from the tender beam, where he was at the time. The post had been there a week, and he had passed it daily, but did not know that it was there. The court said:

“ It is necessary for railroad companies to put up structures near enough to their tracks for it to be possible for persons upon the trains to come in contact with them. * * * A company is not bound to give warning of every such structure to every person employed upon its trains. There must be some point within the limit which it is possible for a man on a train to reach at which the railroad company has a right to build without notice, and to assume that those on the trains will keep out of the way. Every one knows that there is danger as soon as he gets outside of the line of the train, when it is in motion.”

In Goodes v. Railroad Co., 162 Mass. 287, a brakeman struck against a switch-stand that was close to the track, and was knocked off the car and fatally injured, while uncoupling freight cars at night. He had been working for the defendant nearly three months, had worked as a brakeman on another railroad for several months previously, knew his business, and was competent and intelligent. He had passed over and by the switch, both by day and by night. Held, that he assumed the risk. In Austin v. Railroad Co., 164 Mass. 282, a brakeman struck a gatepost near the track, and was injured. He had had occasion to go by it in the course of his employment. Held, that he assumed the risk, whether he actually knew the danger or not. In Content v. Railroad Co., 165 Mass. 267, a trainman standing on the side ladder of a moving freight car came in contact with an unusually wide car that was standing on a parallel side track, and was injured. He knew that it was customary to store such cars on the side track, and the position of the tracks was visible. Held, that he assumed the risk. In Vining v. Railroad Co., 167 Mass. 539, a brakeman, while ascending the side ladder of a moving freight car in the daytime, came in contact with another car standing on an adjacent side track, and was injured. He had worked on the line for a year. He had not seen the other car, and testified that he did not think of looking. Held, that he assumed the risk. In Bell v. Railroad Co., 168 Mass. 443, a brakeman came in contact with a pillar of a drawbridge while descending the side ladder of a moving car at night, and was injured. The pillar was about 4 feet from the track. The plaintiff knew of the bridge. Held, that he assumed the risk of such dangers. In Ryan v. Railroad Co., 169 Mass. 267, a brakeman, while descending from the top of a freight car, struck a picket fence on the top of a 4-foot wall alongside the track, and was injured. The fence was 3 feet 9-J- inches from the nearest rail. Held, that he assumed the risk.

In Perigo v. Railway Co., 52 Iowa, 276, a baggage-man, while on a moving passenger car, came in contact with a coal platform that was within 7 inches of the car at one end and within 4-|- inches of it at the other. He knew of the platform. Held, that he assumed the risk. In Brown v. Railway Co., 69 Iowa, 161, a fireman came in contact with a snow bank that was close to the track, while his crew were cleaning snow from the track with a snow-plow, and was killed. The court said:

“He must be held to have the same knowledge of this danger as he had of the close proximity of cattle-chutes, coal-sheds, platforms, bridges, water-pipes, or other structures and appliances necessarily located in close proximity to the track, which may be passed in perfect safety so long as employés keep themselves within line of the cars in the train, but which are dangerous when an employé exposes himself to contact with them by swinging outside of the line of the train.”

In McKee v. Railway Co., 83 Iowa, 616, an experienced brakeman climbed down the side ladder of a moving freight car, and hung down, and looked under the car, in the performance of his duty. His head struck a wing fence, and he was killed. The fence was 3 feet and 10 inches from the rail, and was at about the same distance from the rail as other wing fences on the line. Held, that he assumed the risk.

In Gibson v. Railway Co., 63 N. Y. 452 (20 Am. Rep. 552), a conductor came in contact with the projecting roof of a depot building, and was injured. The court say:

“When the deceased entered the employment of the defendant, he assumed the usual risks and perils of the service, and also the risks and perils^ incident to the use of the machinery and property of the defendant, as it then was, so far as such risks were apparent. * * * He could not call upon the defendant to make alterations to secure greater safety, nor, in case of injury from risks which were apparent, could he call upon his employer for indemnity.”

In De Forest v. Jewett, 88 N. Y. 264, a yardman fell into a small sluice or ditch in the railroad yard, and was injured. He had been employed in the yard for about two years, and knew of the existence of sluices and ditches in it; and, so far as could be determined by seeing them daily, he knew their width and depth, and the manner of their construction. Held, that he assumed the risk. In Tuttle v. Railway Co., 122 U. S. 189, a brakeman was caught between cars by the drawbars’ passing each other while attempting to couple cars on a curved track, and was killed. The alleged cause of the accident was the sharpness of the curve. Held that, as the perils were seen and known, he assumed the risk. In Randall v. Railroad Co., 109 U. S. 478, a brakeman, while working a ground switch for his train on one track, was struck by an engine passing on an adjacent parallel track, and injured. Held,' that he assumed the risk of the switch-stand being too near the adjacent track, and that “ a railroad yard where trains are made up necessarily has a great number of tracks and switches close to one another, and any one who enters the service of a railroad corporation in any work connected with the making up or moving of trains assumes the risks of that condition of things.” In Williams v. Railroad Co., 116 N. Y. 628, a freight brakeman, while standing on the top of a box car passing under a bridge, came in contact with the bridge, and' was injured. He had passed under the bridge on trains daily for three weeks. Held, that he must have known that it was not of sufficient height to permit him to stand while so passing, and that he assumed the risk.

In Pennsylvania Co. v. Finney, 145 Ind. 551, a brakeman of six months’ experience, while descending the side ladder of a car, came against a water-plug located so near the track that a person in the position he was in could not avoid it, and was killed. He had passed it almost daily during his employment. Held, that—

■'It was his duty to observe his surroundings before attempting to go down the ladder, and, had he exercised ordinary care and prudence in this respect, * * * the accident would not have occurred. * * * The means which a person has of knowing that, under the circumstances, he will expose himself to peril, are deemed in law to be evidence of knowledge of that fact.”

In Ryan v. Railway Co., 10 Ont. 745, a brakeman of several months’ service, while holding on to the side ladder of a moving car, came in contact with a switch target, and was thrown under the train and killed. The switch-stand had been erected in the yard before he commenced his service, so that he was aware of its proximity to the track. Held, that he assumed the risk.

In Missouri, etc., R. Co. v. Somers, 71 Tex. 700, a brakeman, while stepping down upon the rear platform of a caboose, in order to release the brakes on it, struck against a cattle-guard fence, and was injured. The plaintiff testified that he knew that several of the cattle-guards on the railroad were sufficiently near the track to strike the feet of a brakeman sitting upon the top of a car with his legs hanging down, but that he knew nothing of the one which caused the injury, except that it could not have been more than 10 inches from the car in order to strike him. Held, that he assumed the risk.

In Scidmore v. Railway Co., 89 Wis. 188, a brakeman, in alighting from his train in the night-time, in the performance of his duties, struck against a “clearance” post, and was thrown under the wheels of a moving car and injured. Held, that the knowledge of the brakeman that posts were used along the line of the road imposed upon him the risk incident to the existence of the particular post in question, although he had no actual knowledge of its existence.

In Boyd v. Harris, 176 Pa. St. 484, a brakeman, while performing his duties on a train, came in contact with a cattle-chute on a siding «Glose to the rail, and was killed. He had passed it daily for two months. Held, that he assumed the risk; that — ■

“The duty to observe and make himself acquainted with the obvious dangers to which his employment exposed him was on the deceased. The opportunity to observe and acquire a knowledge of these dangers had been enjoyed by him for many' days. Under such circumstances, the fair legal presumption is that he had improved the opportunity to observe and discharge the duty towards himself and his employer which his service required of him. If this proposition be- denied, then for how many more months must- an employe pass a point of danger daily before the presumption will arise ? Will it ever arise ? Or must the question of actual knowledge be turned over to the jury to guess at in all such'cases?”

There are cases cited from courts of other States which it may be said do not approve of the position taken by the courts in the foregoing cases. It will, however, be seen by an examination of the facts in each case, that the courts have refused to apply the rule of assumed risk because the servant did not know the exact danger, or had not had sufficient opportunity to learn of it. In Scanlon v. Railroad Co., 147 Mass. 484 (9 Am. St. Rep. 732), the facts were that the distance between a signal post by the side of a’railroad and a ladder on the outside of a car was one foot. A brakeman, on his first trip, did not know that there were erections so near, and was not informed of the danger. They were, in fact, exceptional. It was held that the danger was not obviously incident to his employment ; therefore the risk could not be said, as a matter of law, to have been assumed. In Illinois Central R. Co. v. Welch, 52 Ill. 183 (4 Am. Rep. 593), a brakeman was injured by coming in contact with an awning projecting over the track. The company was held to be negligent in this respect, and the court say that there was no reason for supposing that the plaintiff had acquired knowledge of the unsafe condition of this awning before he was injured, as.he had only been two months upon the road, and, except upon two trips, had always passed this station,in the night. Chicago, etc., R. Co. v. Russell, 91 Ill. 298 (33 Am. Rep. 54), is to the effect that leaving for months a telegraph pole near the track is negligence. Yet the court say in that case that there was no evidence that the deceased knew anything of this pole, or that he was ever required before to assist in switching cars off from this track. In Boss v. Railroad Co., 2 N. Dak. 128 (33 Am. St. Rep.756 ), the plaintiff had passed the switch-stand on this train nearly every day for two weeks, but he had no duty to perform in connection with the running of the train. The court say:

“ Had he known of its existence, or had he been chargeable with such knowledge, perhaps it would have been negligence on his part not to have watched for and guarded against it.”

In Walsh v. Navigation Co., 10 Or. 250, a brakeman put his head 8 inches out of a car window, in the nighttime, to see what was the cause of a certain noise in the running of his train, and his head came in contact with the timbers of a water-tank that was from 6 to 18 inches from the window sills of the car. The gauge of the railway had been recently widened, so as to bring the cars nearer to the timbers. The plaintiff had no knowledge of the proximity of the tank to the window, occasioned by the widening of the gauge. Held, that he did not assume the risk, as a matter of law. In Johnston v. Railway Co., 23 Or. 94, a switchman had been employed in the yard only about two weeks. Held, that it could not be said, as a matter of law, that he was negligent. The court say: ‘ ‘ While he must have known of the existence and location of this switch target, he may not have known from observation * * * that it \yas near enough to the cars to be dangerous.”

In St. Louis, etc., R. Co. v. Irwin, 37 Kan. 701 (1 Am. St. Rep. 266), a freight-train conductor, while riding on top of his caboose, struck a brace that extended from the side-post to the top-beam of a bridge, and was injured. He had run over the road and through the bridge daily for three months preceding the accident, and knew that the bridge was constructed with overhead timbers. It did not appear that he had been on top of the cars more than ODce, in passing over the bridge, before the time of the accident. It was found by the jury that he had no knowledge or opportunity to know of the dangerous character of the bridge. Held, that whether he was negligent was for the jury.

In Kelleher v. Railroad Co., 80 Wis. 584, a switch-man struck against a coal-shed standing near the side track, and was injured. It did not positively appear that he ever had made this switch before. If he had ever done it at all, it was but a few times. The jury found that the shed was so close as to be unnecessarily dangerous, that deceased did not know of the existence of the shed at its distance from the track and cars, and that he had not the means of such knowledge. Held, that he did not assume the risk. In Dorsey v. Construction Co., 42 Wis. 583, the rule was stated that the knowledge on the part of the servant should be of the precise danger to him from an obvious defect, in order to hold him to an assumption of the risk. The facts in that case were that the conductor of a freight train was injured, while climbing up the ladder of a freight car, by coming in contact with a cattle-chute erected near the track, — dangerously near, as the court say. The proof showed that he had been employed for some months upon that part of the road; passed the chute during the term of his employment almost daily; knew the cattle-chute was there; and knew the exact location, with reference to the track, of two other chutes, similarly located, at adjacent stations. Yet the court stated that, while he may have known genei'ally of the proximity of the chute in question to the track, it did not necessarily follow that he knew its precise distance therefrom, and consequently the precise danger.

In Johnson v. Railway Co., 43 Minn. 53, the injury to the servant was caused by his coming in contact with a signal post erected in defendant’s yard, and situate about 4 feet from the track. At the time he received the injury, he was climbing up the ladder of a box car. He had been employed as switchman in the yard for two weeks or more, passing this post many times each day. The court say:

“We are not prepared to say * * * that he knew, or should have known, if he used ordinary prudence, the danger of such an accident. * * * While he must have known of the existence and location of this post, he may not have known from mere observation, or unless his attention had in some way been specially called to it (situated, as it was, in the center, between the tracks), that it was near enough to the cars to be dangerous, but might be misled, unless he had made actual measurement or calculation.”

In Sweet v. Railroad Co., 87 Mich. 559, the injured servant was one of a crew of switchmen in the company’s yard at Detroit, and his duties extended to all parts of the yard. His injuries were caused by coming in contact with a large shed of the defendant, located in the yard, near the side track, while he was ascending or descending a ladder upon one of defendant’s cars which was being moved on such track. The shed had been there for five years; and the intestate, who had formerly been a brakeman, had been employed as á switchman in that yard for a month or six weeks. There was no direct evidence that he was ever on that siding before the accident, or that his attention had been called to the dangerous proximity of the building, but there was evidence that cars were probably shipped in there once or twice a day.

In analyzing and discussing these cases, Bailey (Mast. Liab. p. 174) says:

“This case [Sweet v. Railroad Go., supra] was decided upon the somewhat peculiar ground that it was not his duty to inform himself of the danger to be apprehended from the defect until he had some reason to apprehend danger from it; that until then he might be influenced by the assumption that the master had regard for his duty, and would not negligently expose him to extraordinary peril.
“Was the rule applied in either of the foregoing cases? Rather, was it not evaded, or, more correctly speaking, was it not misapplied? Did not the injured employé in each of them have an abundant opportunity to ascertain the exact location of the structures with which he came in contact? It required no special skill or training to foresee that they were likely tó occasion him harm. It was a part of the duty of the servants thus engaged to obtain a knowledge of such risks and dangers. We have seen, ante, that he must take ordinary care to learn the dangers which are likely to beset him in the service; that he must not go blindly at his work, when there is danger; that he must inform himself; that such is the law everywhere; that he must use reasonable care in examining his surroundings; that knowledge on his part will be presumed, if the defect is obvious.
“It cannot be questioned for a moment that these cases were not decided in accordance with the rule stated, but rather from a special rule, arbitrarily applied by the court, and so applied by ignoring the contract relations between the parties, and ignoring the rights of the master as a party to that contract. We have seed that the duty of the master in such case is not to see that the servant actually knows. He has a right to rest upon the probability that anybody would know what was generally to be seen by his own observation. And to assume for a moment that a switchman, employed in a yard for weeks,' did not know the location of a building or of a post in plain sight, and which he passed many times a day; that he did not know its danger, simply because he may not have measured its distance from a track, when the only reasonable presumption is that he did not look at the time, or failed to remember, — is to disregard every reasonable inference. The master had a right to expect, when he placed so conspicuous an object before his servants, that they would observe it; would learn — would know — its precise danger to them. And, if he had such right to so assume, he could not be held to the duty of specially informing each employe that he had 100 or more signal posts, 100 or more cattle-chutes, 100 or more buildings of different sizes and of variable distances from his tracks (either main or side tracks), and specify to each such employe the exact distance in feet or inches each one was from the track. Such warning would be useless. No employe would pretend to remember the information as to each. His observation is a more perfect, safe, and certain means of information, and his own sense of duty and danger more suggestive of observation, than all the verbal or printed information the master could give.”

Again, on page 180, he says:

“The contract, therefore, must be that risks and perils obvious to a person of ordinary understanding are embraced therein, and assumed by the servant, when the opportunity has existed for observation. Where there are no peculiar dangers, knowledge of the defect is knowledge of the danger. The danger of contact with a post or structure while on a moving train is a matter of common knowledge. As to such defects, the servant cannot be heard to say that, while they were apparent and obvious, yet he did not know or ascertain their precise location, or realize their apparent danger. Knowing them to exist, it is his duty to ascertain their precise location with reference to the performance of his duties. When the location is ascertained, the danger is manifest; it being the law and the contract that the servant ought to know that which was plain to be seen, and which it was a part of his duty to learn and know. How, then, can it be said that the jury are to determine whether or not he had knowledge ? ”

In this view of the law we fully concur.

In Whipple v. Railroad Co., 19 R. I. 587 (61 Am. St. Rep. 796), a brakeman was knocked from a freight car, and injured, while climbing a ladder on its side, by striking a telegraph pole that stood about 3-|- feet from the rail of the side track, but inclined somewhat towards the track, the space between the pole and the top of the car being about 15 inches, which was sufficient to permit the passage of a man if standing erect, but insufficient by 7 or 8 inches to allow of .his passage while climbing a ladder. He had worked in the freight yard in making up freight trains for two or three months previously, and seems to have frequently passed the pole on foot, and on the tops of the moving cars, but had never attempted to pass it on the side ladder of a moving car. Held, that the danger was not so obvious as to charge plaintiff with knowledge ■ of it. This, and like cases that may be found in the reports, we think, cannot be sustained upon principle, and leave anything of the rule of assumed risks.

There are many other errors assigned in the record, but we do not deem it necessary to consider them, as, in the view we take, they are immaterial.

The judgment should be set aside, and no new trial awarded.

Geant, C-. J., concurred with Long, J.

ON EEHEAEING.

Per Curiam.

A majority of the court are of the opinion that the judgment in this cause should be reversed upon the ground of intemperate and improper language by counsel in the argument, and a failure on the part of the trial court to appreciate and perform his responsibilities and duties in the conduct of the trial.

The judgment is reversed, and a new trial ordered.