text:
    MEOLA v. QUINCY MINING CO.
    1. Master and Servant — Negligence—Notice—Evidence.
    Testimony tending to show that a trolley wire in a mine became loosened from its clamp so as to sag, 24 hours before plaintiff’s intestate was killed, that the defective condition was reported to the trammer boss, who gave directions to remedy the defect by tying it up with a piece of fuse, that it became loosened again and fell upon decedent, presented a question of fact on the question of negligence.
    2. Same — Contributory Negligence.
    Whether or not plaintiff’s intestate knew of the defective condition of the wire, in the absence of positive testimony as to the fact, held, to present a question for the jury relative to his negligence and assumption of the risk.

    3. Same.
    Under rules of defendant corporation requiring its miners to cease employing the electric current and to push cars by hand past the point of defect, if the wire became out of repair, the court should have instructed the jury that if plaintiff knew, or, in the exercise of ordinary care, should have known, of the defective condition, he was chargeable with assumption of the risk in using the power instead of pushing the car by hand.
    4. Same — Charge—Safe Place.
    The trial court erred in charging the jury that it was defendant’s duty to use the greatest possible care in maintaining the tram-car, clamp, or connection of the trolley wire to the bracket in reasonably safe condition: defendant’s duty to inspect and repair appliances was the duty to use ordinary care, having in consideration the hazardous nature of the instrumentality.
    5. Damages — Verdict—Death—Earning Capacity.
    A verdict of $5,040 for the death of a miner, who only contributed $25 to $30 every second month to his family, his estimated contributions on that basis amounting to$1,276.22 during his expectancy, was excessive and unwarranted.

      Error to Houghton; Streeter, J.
    Submitted January-33, 1913.
    (Docket No. 74.)
    Decided March 20, 1913.
    Case by Leonard Meóla, administrator of the estate of Antonio Tabaracci, deceased, against the Quincy Mining Company for the unlawful killing of plaintiff’s intestate. Judgment for plaintiff. Defendant brings error.
    Reversed.

      Hanchette & Lawton, for appellant.

      Burritt & Burritt, for appellee.
    Plaintiff is administrator of the estate of one Antonio Tabaracci, who on December 8, 1908, was instantly killed in defendant’s mine. Decedent lost his life through coming in contact with a loosened trolley wire carrying a lethal current.
    Decedent had been in the employ of defendant for some years as a trammer. It is the duty of the trammer to load the broken rock upon tram cars and deliver it at the shaft. Originally these tram cars were pushed by hand. Of late years electricity has been introduced as a motive power; the same or similar cars being used. A small motor, about 7 feet long, called a “pony,” operated by a boy called a “pony boy,” is attached to the tram cars, and they are thus moved about through the drifts upon tracks built for that purpose. The power is carried throughout the mine upon a copper wire. In the drifts this trolley wire is attached to the top or hanging wall by means of an insulated swivel, to which is attached a clamp, which fits into a groove on each side of the wire. Three screws are then tightened upon the clamp, and the wire is held in place. The power is transmitted from the trolley wire to the “pony” by means of a pole, about 7 feet long, which may be set in a socket upon either of the four corners of the “pony.”
    At the sixty-second level in defendant’s mine, the trolley wire had, on the day of the accident, been extended north of shaft No. 7 about 100 feet and south of the shaft something over 400 feet. On the night of the accident decedent and his partner, one De Santi, worked for a time taking rock from the drift north of the shaft. As the trolley wire ran only 100 feet in that direction, they had to propel cars by hand the balance of the distance. After the midnight meal they made one trip north, and on the second trip went south of the shaft, where the wire ran for a distance of over 400 feet and within a few feet of the point where the cars were to be loaded. On this trip Isabell, the pony boy, was seated upon the rear seat of the “pony,” while decedent and his partner were likewise riding upon the motor or “ pony.” The car moved about as fast as a man walks.
    When they approached the place in the drift where the cars were to be loaded, it was discovered that the trolley wire had become loosened

       from one of the clamps, and was sagging down. The ‘ ‘ pony ” was stopped, and Isabell got off and with a piece of board turned the clamp crosswise, and then, pushing the wire up with the board, placed it on top of the end of the clamp. They then proceeded safely under the clamp to the loading place, and, after loading, hauled the cars out to the shaft and unloaded them. A second trip was made to the point where they were returning to the shaft with the loaded cars. When the “ pony ” reached the defective clamp upon this trip, the trolley wheel, after passing under the clamp, missed the wire on the other side, thus depriving the “pony” of power. Either Tabaracci, the decedent, or De Santi, probably De Santi, made several attempts to replace the trolley upon the wire. In making this effort the wire was pushed off, or fell off, of the clamp and, sagging down, came into contact with Tabaracci’s arm. The current passing through his body caused instant death. The voltage carried upon the wire was automatically limited to from 250 to 275 volts. Ordinarily it is considered that a voltage of at least 500 is necessary to cause death.
    The record establishes the fact that when the wire is found out of order it is the duty of the pony boy to "pull the jumper ” — turn off the current — and notify the shift boss or trammer boss, who, if the defect is a simple or trivial one, such as this one was, will at once remedy it. If the defect be more serious, the wiremen are notified, who in due time make the necessary repairs. In the meantime, while the wire is out of order, it is the duty of the trammers to push the cars by hand. Plaintiff introduced testimony tending to show that on the night shift previous to the night in question (a day shift intervening) the wire at the same point had become detached from the clamp, and had been tied up with a piece of fuBe by a miner named Tiva. This witness testified that he reported the defect to the trammer boss, and himself tied it up as the trammer boss directed. The defective condition of the clamp and wire on the night of the accident was not reported to the shift boss or the trammer boss, but was fixed by Isabell upon his own initiative.
    Tabaracci left a widow and three children, between the ages of 12 and 16 years, all of whom resided in a foreign country. An older married daughter resides in Michigan.
    Plaintiff offered testimony tending to show that decedent had sent to his mother from $25 to $30 every second month; and that, based upon his expectancy, and assuming the contributions would continue, the sum decedent would have contributed to his family would be $1,276.22. Defendant offered to show the actual wages received by Tabaracci during a certain period preceding his death. This evidence was excluded as being equally within the knowledge of the deceased. A verdict was rendered for $5,040. A motion for a new trial was denied.

       Assumption of risk by servant of danger of electric shock, see note in 32 L. R. A. 353.

   Brooke, J.

(after stating the facts). Under the testimony of the witness Tiva, to the effect that the trolley wire had become loosened from the clamp 24 hours previous to the accident, that the defect was reported to the trammer boss, and that it was fixed by Tiva at the direction of the trammer boss, we are of opinion that the ques-lion of defendant’s negligence was for the determination of the jury.

Upon the question of decedent’s negligence, the following facts áre undisputed: When the trolley wire becomes defective, it is the duty of the trammers to push the cars by hand past the defective place until the defect is repaired. Witnesses for the plaintiff agree with witnesses for defendant upon this point. The place where the wire came loose from the clamp was within a very few feet (possibly 20) of the place where the loading was done. When this crew went into the south drift on its first trip, the defective condition of the wire was discovered and remedied in the manner indicated in the statement of facts, supra. Upon the fatal trip, instead of pushing the cars by hand a few feet past the defective place, the crew rode upon the "pony,” and attempted to move the cars past that point by means of the electric power. The drift was lighted by "sunshine” lamps carried by each man on his hat. The drift was from 15 to 30 feet wide and at this point about 8 or 9 feet high. The "pony” (motor) upon which the crew rode upon its first trip was about 3 feet high, 4 feet wide, and 6 or 7 feet long. Decedent was 39 years of age and an experienced trammer, having worked several years in defendant’s mine.

The foregoing facts being unquestioned, it becomes important to inquire what knowledge decedent had, or, in the exercise of ordinary prudence, should have had, of the defective condition of the wire at the point where he lost his life. Three persons only knew what occurred at the time the defect was discovered upon the first trip in. They are Isabell, the pony boy, De Santi, the trammer, and Tabaracci, the decedent.

Isabell, sworn for the plaintiff, testified, in part, as follows:

(‘Q. When you came out there on your first trip, you saw this trolley wire sagging?
“A. Yes.
”Q. Now, was it low enough so that, if you were under it with your motor, it would touch your head?
“A. Yes.
“ Q. What did you do ? Did you run by it ?
“JL. We stopped, and I turned that piece of steel, and with a piece of powder box put the wire on the steel.
“ Q. Who did that ?
“A. I did.
“Q. Well, in coming out, how were your cars arranged ; which part was your motor in ?
“A. I think that one car was in behind and one car on front and the motor between.
11Q. Which end of the motor car were you sitting at your position ? Was the motor car in front of you or behind?
“A. Going in the drift the motor was in front of me, and going to the shaft the motor was in the rear.
“Q. The trolley pole is about how long ?
“A. About six or seven feet.
“Q. Was that swinging back ?
“A. It was.
“Q. When you saw this wire sagging down, did you stop the motor car ?
“A. Yes.
“Q. About how fast do you run those motor cars in comparison to about how fast a man would walk ?
“A. Not much faster than a man could walk.
“Q. So you got off and walked around the motor car and picked up a piece of powder box ?
“A. Yes.
“Q. How long a piece ?
"A. About a foot and a half or two feet.
l’Q. And you pushed the cable up and hooked it over on this piece of steel, you say, which piece is the piece that held the cable with these screws ?
“A. Yes.
liQ. And you had to turn those pieces of steel crosswise ?
“A. Yes; I did.
“Q. When you put the wire on top, did that piece of steel hold stiff enough to hold the wire ?
“A. Yes.
“Q. Did Tabaracci see you do that ?
“A. I wouldn’t say that he seen; but they were both on the car and most naturally would have seen me.
“Q. Was he looking at you ?
“A. He knew that I stopped the car, and he must have taken notice.
“Q. Do you know if they all saw it ?
“A. No; I don’t know whether they all saw me.
“Q. Do you know if they all saw the wire sagging down from this bracket ?
“A. I don’t know positively, only as I have said.
“Q. Tabaracci knew that the car stopped ?
“A. Yes.
“Q. How far were you from the place where you were to fill the cars ?
‘‘A. About 20 feet.
“Q. Now, this steel, you understand, is what I mean by the clamp that held the wire.
“A. There is no spring in it; it is sort of half-moon like, and is hollow.
“Q. When you say the ‘ steel,’ you mean the one about 6 inches long that held the wire inside of it ?
“A. Yes.
e'Q. I will call it the ‘ clamp.’ When you went around with this piecei of powder box and hooked the wire over this clamp, did Tabaracci get off and walk over to the chute ?
“A. I don’t know.
“Q. You came back and got on the motor car ?
“A. Yes. * * *
“Q. Did you, at the time you put this trolley wire upon these pieces of steel or clamp, or on this bracket, did you tie it with a piece of fuse ?
“A. No.
“Q. Why not?
“A. I didn’t think it necessary.
“Q. You could have tied it, could you, with a fuse, if you thought it was necessary ?
UA. I had never tied any with fuse, so I didn’t naturally think it necessary.
“Q. You thought that it would stay up there till you got through with that shift ?
“A. I wasn’t sure that the wire would stay up there, but took chances. * * *
“Q. State if Tabaracci saw the wire sagging from this bracket at the time that you got off to put the wire on.
“A. I wouldn’t swear to it; I am not positive; they most naturally would have seen it.
“Q. Didn’t you state a minute ago that Tabaracci saw the wire sagging ?
“A. He most naturally would have seen it, because he was sitting in front of me. I don’t know if he called my attention to it or not.
“Q. By calling your attention to it, you mean told you that the wire was loose, and told you to stop the car ?
“A. Yes.
“Q. You are, therefore, unable to say who saw the wire sagging first ?
“A. No.
“Q. But you say that Tabaracci might have called your attention to it ?
“A. I don’t remember.
“Q. Did you have to hunt around the level to find the stick ?
“A. I don’t remember.
“Q. Was Tabaracci facing you and could see what you were doing ?
“A. I don’t know if he was sitting sideways or back-ways.
“Q. Was there light enough so that he could see all your movements ?
“A. Yes.
“Q. He sat there on the motor all the time while you were fixing—
“A. I think he did. I don’t remember having some conversation with him about it at that time; I am not positive that they looked on and watched what I did; I am not positive; I don’t remember. I remember what I did; I went to put up the wire, and they were on the motor; they knew where I was going; I won’t swear if they seen me put it up.
“Q. How about seeing the wire sagging before you stopped the motor ?
“A. What do mean ? They most naturally could see it. They were in front of me.
“Q. And by that they had a good chance for observation?
“A. Yes.
“Q' (By Mr. Burritt): How is that drift lighted ?
“A. By our lamps; I am not positive whether or not Anton Tabaracci observed the defective condition of that wire and bracket; I am not positive whether he did know; I do not know of my own knowledge whether Tabaracci observed that the condition of the wire and bracket was defective.
“Q. (By Mr. Lawton): When you stopped the car, the wire was sagging down close to their heads?
“A. If I had stopped the car under the wire, it would have hit them, if they did not watch out for it.
Q. At the point that you did stop the car, the wire was sagging over their heads?
“A. A few feet away.”

De Santi testified as follows upon this point:

“ That wire was loose before when we used it, a little while before on that shift; it was loose, but there was a fuse keeping it up; it was loose and sagging down. I don’t remember when Isabell stopped the car and put the wire back up over on the bracket; he may have done it, but I don’t remember. I don’t remember, either, that he stopped the car when he was coming into the drift; he may have tied it up while we was inside loading the cars; he may have tied it up; I don’t know; sometimes he may do it while we was inside at the chute loading the car. I don’t believe I seen the wire, because we didn’t stay there all the time to look up and see if it is loose; I don’t remember if I seen it.”

Based upon the foregoing testimony, the conclusion that Tabaracci saw Isabell fix the wire on the first trip in, and therefore knew, or, in the exercise of ordinary prudence, should have known, of the defective condition of the wire which later caused his death, is almost irresistible. Yet we do not think it should be said, as a matter of law, that he had such knowledge. If he did know of the defective condition, and continued to use the electric power for tramming, instead of pushing the cars by hand past the defective point until it was repaired, as he was required by the rules to do, he should unquestionably be held to have assumed the risk of injury from such use.

Defendant’s seventh request is as follows:

“ (?) Under the undisputed testimony in the ease, it is against the rules to tram by the motor car or machine when the wire is out of order; but the rule is to have it fixed at once before using the motor car further. In the meantime, if necessary to tram, push the cars by hand. This is a rule and a custom of the mine which is established for the safety of the men, and the rule that they should follow. Had this rule been followed in this case, no injury would have happened; and the testimony undisputedly shows that the injuries resulted from violating this rule. The company, therefore, is not responsible for the accident, and the plaintiff’s intestate cannot recover.”

This request was refused, and no reference was made in the charge as to the duty imposed upon plaintiff, under the rules, to tram by hand while the wire was in a defective condition. Upon this point the court charged:

“It was the duty of the deceased to exercise ordinary care; that is, such care as an ordinarily prudent person would exercise under like circumstances. It was not the duty of the deceased to inspect for himself. He had a right to presume that the defendant would not, by its own want of care, expose him to danger; and it was the duty of the deceased to continue his work as he always had done, unless he knew, or should have known, that the connections were out of order and were dangerous and unsafe; and by continuing his work he assumed no risk which was known, or should have been known, to the defendant, and of which the deceased was ignorant, or was not fully apparent to him. * * * The testimony on that branch of the case is in direct conflict, gentlemen, and I cannot assist you at all in determining the fact; but it will be necessary for you to determine the fact as to whether the deceased was going along at his business in the ordinary way. If he was, and if he did not have knowledge of the dangerous condition of that wire and assume the risk himself, and you find that the company was negligent in leaving it in the place it did, the plaintiff in this case is entitled to recover all damages that he suffered.”

While defendant’s seventh request was for a directed verdict, and was therefore, under our view of the case, properly denied, we think the court should have instructed the jury that if decedent knew, or, in the exercise of ordinary care, should have known, of the defect in the wire, it was his duty, under the rules, to have pushed the cars by hand past the defect; and that if, being chargeable with such knowledge, he used the electric power, he assumed the risk of such use, and no recovery could follow.

Upon the question of defendant's duty the court charged:

“It was the duty of the defendant to furnish the deceased a reasonably safe place in which to work; and the failure of the defendant so to do would render the defendant liable for all of the damages sustained, if the deceased was in the exercise of ordinary care at the time he sustained the injury. * * * The degree of hazard attending the use of a dangerous article has a direct relation to the care which is requisite in its use, and the use of electricity imposes the duty of the greatest possible care. I therefore charge you that it was the duty of the defendant to use the greatest possible care in maintaining the car, clamp, or connection, whereby said trolley wire was attached to the bracket by which it was suspended, in a reasonably safe condition; and if you find from the evidence that the defendant did not use the greatest possible care in that regard, I charge you that in such case the defendant was guilty of negligence; and if you find that the deceased received an injury resulting in his death as a result of the failure of the defendant to exercise the greatest possible care, and without negligence on his part, your verdict should be for the plaintiff.”

Error is assigned upon this portion of the charge. It is urged that the doctrine of “safe place’’does not apply; and, further, that the instruction, in any event, imposed too high a degree of care upon defendant.

We have held that the obligation to inspect (and repair) appliances is one not of insurance but of diligence. Clark v. Goldie, 146 Mich. 303 (109 N. W. 1044). This duty is undoubtedly greater where the mechanism or agency employed is highly hazardous; but, giving due consideration to the character of the agency, the duty imposed is, after all, “ordinarycare,’’and not “the greatest possible care.”

Error is assigned upon the denial of the motion for a new trial, based, inter alia, upon the ground that the verdict was excessive. As the case must go down for another trial, consideration should be given this assignment.

Based upon the evidence of his past contributions to his family, it was shown that decedent, if he had kept up such contributions during his entire expectancy, would have contributed the sum of $1,276.22. No computation of the present value of this sum was made; plaintiff’s counsel claiming that plaintiff was not limited in his recovery to this amount. The verdict was for $5,040. Respecting the measure of damages, the court charged:

“ In determining this question — that is, as to the sum of money — you are to consider the age of the deceased at the time of his death, his habits of industry, his ability to labor, his capacity to earn money, the wages he was in the habit of earning when he died, the amount he had been in the habit of contributing to his family, the length of time he probably would have lived had he not been killed, his possible death, his possible illness, his possible want of employment, the effect upon his earning capacity of his advancing years, the expectation of the lives of the members of his family, and all other facts and circumstances bearing upon this branch of the case.”

This instruction correctly states the law aB applicable to the facts in this case. It is, we think, entirely clear that the jury failed to follow it.

In defending the verdict as it stands, plaintiff cites and relies upon the case of Ingersoll v. Railway Co., 163 Mich. 268 (128 N. W. 227, 32 L. R. A. [N. S.] 362), where this court, speaking through Mr. Justice Stone, said:

“ The circuit judge should have permitted the case to go to the jury under the proposed evidence, to determine as to the liability of the defendant; and, if any was found, to assess damages, if any, for the contributions, voluntary or forced, that would probably have been made by deceased in favor of the widow during her probable life, if not exceeding the probable life of decedent, and for the child during its minority.”

An examination of the whole opinion will at once demonstrate that it is not applicable to the facts in the case at bar. In that case the husband had repudiated his marital obligations and died without ever contributing a penny to the support of his wife or child. Here the husband recognized his obligation, and the evidence shows with unusual certainty exactly to what extent the family of decedent was pecuniarily injured by his death. Where, as in the instant case, the evidence establishes the pecuniary loss with reasonable certain «y, the jury, in assessing the damages, should be governed by the evidence. As was said in Cooper v. Railway Co., 66 Mich. 261 (33 N. W. 306, 11 Am. St. Rep. 482):

“ The statute authorizes the jury, in every case of this kind, to give such amount of damages as they shall deem fair and just to the persons who may be entitled to the same when recovered. Under this statute the jury are not warranted in giving damages not founded upon the testimony, or beyond the measure of compensation for the injury inflicted. They cannot give damages founded upon their fancy, or based upon visionary estimates of probabilities or chances.”

See, also, Chicago, etc., R. Co. v. Bayfield, 37 Mich. 205; Balch v. Railroad Co., 67 Mich. 394 (34 N. W. 884); McDonnell v. Drug Co., 170 Mich. 291 (136 N. W. 383).

The other errors assigned require no discussion.

The judgment is reversed, and a new trial ordered.

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


source: Caselaw Access Project

author: Brooke, J.

license: Public Domain

text:
    ROCHESTER DISTILLING CO. v. TRAVERSE CITY BREWING CO.
    1. Principal and Agent — Estoppel—Burden of Proof.
    In an action for liquors sold by plaintiff to a saloon keeper, who continued to conduct the business in the name of defendant which sold it to him, so as to avoid taking out a new license, and under an admitted arrangement with defendant to order goods in its name, to be paid for by him, the burden rested on defendant to prove that the plaintiff had knowledge of the purchase from defendant and knew that defendant was not the real proprietor of the saloon.
    2. Same — Sales.
    No prejudicial error was committed by instructing the jury that the only evidence tending to show knowledge on the part of defendant’s agent was that of the saloon keeper himself, who testified that he advised defendant’s agent of the real situation; when the only other evidence in the case merely tended to show matters that plaintiff’s agent admitted, as to his knowledge of the intention of the real proprietor to move to town and engage in business.
    Error to Grand Traverse; Mayne, J.
    Submitted January 30, 1913.
    (Docket No. 148.)
    Decided March 20, 1913.
    Assumpsit by the Rochester Distilling Company against the Traverse City Brewing Company for goods sold and delivered. Judgment for plaintiff. Defendant brings error.
    Affirmed.

      Underwood & Umlor, for appellant.

      Amil F. Nerlinger, for appellee.
   Brooke, J.

Prior to September 29, 1908, the defendant company was the owner and operator of a saloon in Traverse City. On that day defendant claims to have sold said business to one John Bartz, who immediately took possession of the business and ran it for some four or five months. Defendant resumed possession in March, 1909. At the time of the sale from, defendant to Bartz, it was agreed between them, that Bartz might order goods, to be used in the business, in the name of the defendant; said goods to be paid for by Bartz. This arrangement seems to have been made in order to obviate the necessity of Bartz taking out a license in his own name.

During November and December, 1908, and January, 1909, plaintiff, through its agent Collins, sold goods for this saloon in the sum of $288.41. The goods were ordered by Bartz, but billed and shipped to defendant and delivered at the saloon, which was apparently being operated by defendant under a license to defendant. Plaintiff in this action seeks to recover the value of the goods so sold. It was claimed by defendant that Collins (plaintiff’s agent) had actual knowledge of the alleged true situation, and that the credit was in fact extended to Bartz.

The case was submitted to the jury under a charge which, in effect, allowed plaintiff to recover only if it was found that Collins (plaintiff’s agent) dealt with Bartz as the agent of defendant, and not as principal. The court by his charge placed upon the defendant the burden of showing that Collins had knowledge of the alleged fact that Bartz had purchased the business and was the proprietor at the time the goods were sold. This instruction was clearly warranted under Rochester Distilling Co. v. Bostrum, 158 Mich. 543 (123 N. W. 27).

Error is assigned upon the following excerpt from the charge:

“ The only evidence that there is in this case that Mr. Collins had knowledge is the evidence of Mr. Bartz, who testified that he informed him that he was buying the whisky for himself, or that the sale was made to him; that he was the owner. All other testimony relative to the sale, and all the dealings between the parties, is stricken out as there is no evidence before this court or jury that the same was communicated to the plaintiff in this case or to its agent.”

This instruction eliminated the evidence of Mr. Gerst, an officer of defendant company, as well as that of one Lautner, who drove Collins out to the farm where Bartz was staying at the time the order was given. It is urged by defendant that Lautner’s testimony tended to confirm that given by Bartz, to the effect that Collins knew that Bartz was the owner at the time the goods were sold. We have examined Lautner’s testimony, and are of opinion that it tended to establish no knowledge on the part of Collins beyond that which he (Collins) admitted he had; i. e., that Bartz intended moving into Traverse City and engaging in the saloon business. The question in issue was whether he so engaged as proprietor or agent, and, if as proprietor, whether Collins knew it.

Defendant admittedly held the license during the whole license year, and in terms authorized Bartz to order supplies in its name. The goods sold were billed and shipped to it just as it had (as between itself and Bartz) arranged. It should not now be heard to complain if it is obliged to pay an account contracted by Bartz, according to the agreement with a concern which in good faith relied upon the apparent situation created by itself. Good faith and lack of knowledge of the alleged true situation on the part of Collins is established by the verdict of the jury.

The judgment is affirmed.

Steers, C. J., and Moore, Me Alva y, Kuhn, Stone, Ostrander, and Bird, JJ., concurred.


author: MoAlvay, J.

text:
    PEOPLE v. BOYD.
    1. Criminal Law — Obstructing Justice — Offenses.
    To dissuade or prevent, or to attempt to dissuade or prevent, a witness from attending or testifying on the trial of a cause, is an indictable offense based on the common law, and is punishable under 3 Comp. Laws, § 11795, 5 How. Stat. (3d Ed.) § 14987.
    3. Same — Indictment or Information — Pleading — Offense — Witnesses.
    It was not necessary to allege in the information that a valid indictment or information was filed in the original cause, or that the court had jurisdiction, or that the local-option law, which respondent was then charged with violating, was in force in the county where the prosecution was laid.
    3. Same.
    Whether or not the act of respondent, charged with spiriting away a witness, in fact obstructed justice, the information was not open to the objection that it should have charged him with an attempt to obstruct justice, where it alleged that he carried or spirited away the witness, with intent to obstruct and hinder the due course of justice, and for the purpose of preventing the witness from testifying; the acts charged constituted the offense.
    4. Same — Charge—Trial—Evidence.
    On testimony of a witness, whom respondent carried out of the jurisdiction, to the effect that he had made up his mind he did not want to be a witness, it was not error to refuse a request to charge that if the witness absented himself because he wanted to avoid being a witness, and not because of any act of respondent, respondent should be found not guilty; the charge of the court covering the essential facts and findings on which a verdict of guilty must rest.
    5. Same — Trial—Argument.
    Nor was it error for the prosecutor, in reply to the argument of respondent’s counsel, to argue that there was no explanation of the fact that the accused took the witness in his automobile to Ohio at the time in question, and bought a lunch for him: and the language did not violate the rule that the prosecutor may not comment on respondent’s failure to testify.
    Exceptions before sentence from Hillsdale; Chester, J.
    Submitted January 21, 1913.
    (Docket No. 120.)
    Decided March 20, 1913.
    William J. Boyd was convicted of obstructing the administration of justice.
    Affirmed.

      Andrew B. Dougherty, Deputy Attorney General, Orville J. Cornell, Prosecuting Attorney, and Paul W. Chase, ex-Prosecuting Attorney, for the people.

      Fitzpatrick & Crommon, for respondent.
   MoAlvay, J.

Respondent in this case was prosecuted before the circuit court for the county of Hillsdale and by a jury was convicted of the common-law offense of obstructing the administration of justice. The case is before this court on exceptions before judgment.

At the time of the commission of the alleged offense, there was a case pending against the respondent in the circuit court, aforesaid, upon an information filed therein against him, which case was upon the October, 1911, calendar of said court, which court convened October 9, 1911, and when the cause was reached upon the calendar the prosecutor answered that he was ready; that a motion for a continuance was filed by respondent, and the case was. put at the foot of the calendar for further showing to be made on October 23d. Upon the said information therein the name of Nuel Craig was indorsed as a witness, and he was subpoenaed to appear and testify October 23d.

In the instant case the respondent is charged in the information (omitting the formal parts) as follows:

“ On the 18th day of October, in the year one thousand nine hundred eleven, at the township of Cambria, in the said county of Hillsdale, one William J. Boyd, of said city of Hillsdale, having on the 9th day of October, A. D. 1911, been duly arraigned in the circuit court for the county of Hillsdale, on an information charging him with having kept a place where intoxicating liquors were kept for sale, sold, and furnished, in violation of Act No. 207 of the Public Acts of Michigan for the year 1889, as amended, and his plea thereto of not guilty having been entered by order of said court, and said cause having been set for trial at the October, 1911, term of said court, and one Nuel Craig having been duly summoned as a witness for the people on the trial of said cause to appear in said court on the 23d day of October, 1911, to testify in said cause, yet the said William J. Boyd, well knowing the premises, and with intent to obstruct and hinder the due course of justice, then and there wilfully and unlawfully dissuaded, hindered, bribed, hired, carried, and spirited away the said Nuel Craig, for the purpose of preventing him from appearing to testify as a witness on the trial of said cause, as aforesaid, to the obstruction and hindrance of public justice.”

Upon the trial evidence was introduced tending to show that respondent knew that Craig was the principal witness on the preliminary examination of the case in which he had been subpoenaed in the circuit court to testify; that respondent, having made arrangements and agreed to pay Craig $50 to leave the State and not be present to testify, took him in an automobile, with the driver of the car, on the night of October 18, 1911, from Hillsdale county to Pioneer, Ohio; that after lunch, paid for by respondent, they went to Montpelier, Ohio, where respondent left Craig at the Wabash depot, handing him $50, and then respondent, with the driver, returned to Hillsdale in the car. No evidence was introduced on the part of respondent.

The assignments of error which are relied upon by respondent relate to rulings of the court upon objections, and will be discussed in the order presented.

The respondent objected to receiving any testimony in the case under the information, for the reason that it alleged no offense known to the law. This was overruled and exception taken. At the close of the testimony on the part of the people, a motion was made on his part to strike out all the testimony in the case for the same reason, which was also denied.

The contention of the respondent is that this information contained no allegation showing that the court in the original case against respondent had any jurisdiction, for the reason, among others, that it did not show that the local-option law was in force in Hillsdale county.

The question presented is one of first impression in this court. At the common law, to dissuade or prevent, or to attempt to dissuade or prevent, a witness from attending or testifying upon the trial of a cause is an indictable offense. 29 Cyc. p. 1333, and cases cited. In Canada it is made an offense by the Code. Can. Or. Code, § 180. By United States statute it is made an offense to impede or obstruct the due administration of justice by certain acts done with reference to a cause pending or contemplated to be brought in some Federal court.

Some of the United States have also enacted statutes of like character. We have no statute in this State upon the subject. The case is therefore prosecuted as a common-law offense, and in case of a conviction is punishable under section 11795, 3 Comp. Laws (5 How. Stat. [2d Ed.] § 14987), which reads as follows:

“Every person who shall commit any indictable offense at the common law, for the punishment of which no provision is expressly made by any statute of this State, shall be punished by imprisonment in the county jail not more than two years, or fine not exceeding two thousand dollars, or both, in the discretion of the court.”

It appears to be well settled upon authority that—

“Where dissuasion of or interference with a witness in a criminal proceeding is the basis of the charge, it is not necessary to allege that an indictment was found in the original case, the sufficiency of such indictment, or the guilt or innocence of the person therein charged.” 15 Enc. PI. & Prac. p. 27.

The question in the instant case is not the guilt or innocence of the respondent in the main case, nor the sufficiency of the information or the jurisdiction of the court, but whether the respondent is guilty of obstructing or interfering with the administration of justice. In an examination of the authorities we find none in conflict with the authority above cited. In one of the earliest authorities, where the exact question was before the Supreme Court of the State of Vermont (in 1847), that court said:

“Much of the argument at the bar has been expended upon supposed irregularities in the original proceedings against Goodale & Poor, and insufficiencies in the indictment against them prepared and laid before the grand jury. That indictment is not recited, and need not be in the present; it is not, consequently, before us. In offenses of this kind guilt or innocence does not depend upon the guilt or innocence of the original party, against whom the witness may be subpoenaed, or recognized, to appear; nor upon the sufficiency or insufficiency of the original indictment. To thwart or obstruct the due administration of justice by violence, bribery, threats, or other unlawful means, whether in preventing the attendance of witnesses, jurymen, or other officers of court, is a high-handed offense, which strikes at the vitals of judicial proceedings, and subjects to severe animadversion in every well-ordered community. The attempt to commit such an act, it is well settled, is itself a substantive offense, punishable by the common law.

“In this instance, the attempt was unsuccessful; the witness, Warren, attended court and testified before the grand jury, as he had bound himself by recognizance to do. Moreover, the parties against whom he appeared must be taken to have been innocent of the crime imputed to them; and, in addition to this, the indictment against them, if in the description of the offense it followed the complaint filed before the magistrate, I am inclined to think was fatally defective. Still, all these circumstances are entirely consistent with the respondent’s guilt. Since the case of State v. Keyes, 8 Vt. 57 [30 Am. Dec. 450] (1836), it is quite unnecessary to pursue this subject at any length.” State v. Carpenter, 20 Vt. 9, 12.

See, also, 3 Bishop’s New Criminal Procedure, § 897; 2 Wharton’s Criminal Law (11th Ed.), § 1597. See, also, State v. Holt, 84 Me. 509 (24 Atl. 951); Commonwealth v. Berry, 141 Ky. 477 (133 S. W. 212, 33 L. R. A. [N. S.] 976, Ann. Cas. 1912C, 516), and notes.

The court was not in error in admitting the testimony under the information, for the reason that the information sufficiently charged an offense.

It is further contended that the record shows that there was no obstruction to the due course of justice by the acts of respondent, if he committed them; and that, at most, these acts could only be charged as an “attempt.” The charge in the information is that respondent, “well knowing the premises,” and “with intent to obstruct and hinder the due course of justice, then and there wilfully and unlawfully dissuaded, hindered, hired, carried, and spirited away the said Nuel Craig, for the purpose of preventing him from appearing to testify as a witness on the trial of said cause.”

There was evidence in the case tending to show that respondent had carried and spirited away this witness, for the purpose of preventing him from appearing and testifying. This charges a substantive offense; that respondent did this with intent to obstruct and hinder the due course of justice; therefore, when the acts charged were committed, the offense charged was complete. As will be seen from some of the cases already cited supra, only an “attempt ” was charged. Respondents in these cases were charged with “endeavoring to dissuade, hinder, and prevent witness from appearing and testifying,” and were held guilty, although the witness was not thereby prevailed upon to leave the jurisdiction. This objection was included in the motion to strike out the testimony and direct a verdict for respondent, on the ground that the offense proved was not the offense charged in the information. We determine that the court properly overruled the motion and submitted the facts to the jury.

Error is also assigned upon the refusal of the court to charge as follows:

“ If Craig absented himself because he wanted to avoid being a witness, and not because of any act of the defendant, then the defendant is entitled to your verdict of ‘Not guilty.’ ”

We do not think that the request, in the form presented, was warranted by the testimony of this witness, as appears from the colloquy between the court and counsel, where attention was drawn by the court to the fact that the witness Craig did not testify as claimed, but testified that he had made up his mind that he did not want to be a witness; and, further, the charge of the court fairly submitted the question in charging the jury upon the facts they must find beyond a reasonable doubt, in order to return a verdict of “ Guilty;” also that, unless they did so find, they must return a verdict of “ Not guilty.”

The last assignment of error relates to remarks of the prosecutor in his opening and in his final argument to the jury. The remarks in his opening argument related only to the service of the subpoena on Craig, and do not require discussion. The objection requiring consideration is to the last words of a long paragraph of the final argument of the prosecutor, as follows:

“Any explanation of why Mr. Boyd, in the automobile with Mr. Craig, was at the Wabash in the city of Montpelier, Ohio, at midnight on the 18th of October ? Any reason ? I haven’t heard it advanced. Have you ?”

This paragraph began as follows:

“ I listened for an explanation from my brothers as to the reason that Mr. Boyd, on that night, should stop down there at Pioneer, Craig in his automobile, paid for by Boyd, buying a midnight lunch for Craig and Mr. Harmon [the driver].”

The claim is made that these words, objected to, were prejudicial and ground for reversible error. As appears from our quotation from the beginning of this paragraph, the prosecutor makes it in answer to the argument of opposing counsel, not for the purpose of calling attention to the fact that respondent did not testify in the case; and any inference to that effect is not the natural inference to be drawn from this argument. The case is not within the cases relied upon by respondent. This argument was not of that class which has been held by this court to constitute prejudicial error.

We find no error in the record of this case. The conviction is affirmed, and the case will be remanded to the circuit court, with directions to proceed to judgment.

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


author: Bird, J.

text:
    PEOPLE v. BILITZKE.
    1. Bribery — Elements—Intent—Statutes.
    It was necessary, under 3 Comp. Laws, § 11311, 5 How. Stat. (2d Ed.) § 14724, authorizing punishment for bribery or attempted corruption of public officials, to establish that the accused corruptly intended to influence the act or judgment of the officials.
    2. Criminal Law — Bribery—Presumption oe Innooenoe.
    Where the accused, in a prosecution for attempted bribery, admitted that he offered $50 to the prosecuting attorney to put a cause over the term, on the trial denying that it was intended to induce the prosecutor to terminate the prosecution, as charged, but alleging that he offered the money to pay the costs or expense of having the case adjourned, because certain witnesses could not be found, and under a belief that the prosecuting attorney was entitled to demand such payment, respondent was entitled to have his theory that he acted with a lawful intent presented to the jury by an appropriate charge.
    Error to Cheboygan; Shepherd, J.
    Submitted January 17,1913.
    ( Docket No. 118.)
    Decided March 20, 1913.
    Peter J. Bilitzke was convicted of offering a bribe to the prosecuting attorney of Cheboygan county.
    Reversed.

      Victor D. Sprague, Acting Prosecuting Attorney, for the people.

      Homer H. Quay {O. S. Reilley, of counsel), for respondent.
   Bird, J.

The respondent was informed against and convicted of the statutory offense of offering a bribe to the prosecuting attorney of Cheboygan county to induce him to have a certain liquor prosecution then pending stricken from the calendar for a certain term and from further prosecuting it. The testimony offered on behalf of the people tended to show that respondent was guilty of the offense charged in the information.

The respondent admitted that he offered the prosecuting attorney $50 to put the case over the term, but denied that it was offered to induce him to put an end to the prosecution. He testified, in explanation of his act, that he was a deputy sheriff, and that he was engaged by his friend, the defendant in the liquor prosecution, to subpoena his witnesses; that two of the important witnesses could not be found, and that the respondent in the liquor case insisted that he could not have a fair trial without them, and that he was induced by this to attempt to get the case put over the term; that he approached the prosecutor and explained his failure to secure the witnesses, and requested that the case be stricken from the calendar for the coming term; that the prosecutor appeared to be unwilling to consent, saying that he had been put to much trouble in getting ready for the trial. Respondent then asked him if $50 would pay him for his trouble and costs, and that the prosecutor led him to believe it would. He, therefore, went to the respondent in the liquor case, and secured the money, and offered it to the prosecutor in good faith, believing that he had a right to demand and receive the money as a condition in the case passing the term. It is urged on behalf of respondent that he is a Polander, with a somewhat crude knowledge of our language and court practice.

Serious complaint is made by the respondent that the trial court committed error in giving the law of the case to the jury. To the main charge little complaint is made. After the jury had been out for a time, they returned for further instructions, and the following took place:

,s The Court: Gentlemen of the jury, I have a communication from you, stating that you desire some further instructions in regard to offerings, or giving of the money.”

The trial court then presented in detail to them the elements of the offense, as he had done in his charge, the latter part of which was as follows:

“Did Mr. Bilitzke offer money to Mr. Crowley for the purpose of influencing his action in that lawsuit ? Did he offer or give him money ? Either one, or both. If he offered him or gave him money for the purpose of influencing his action as prosecuting attorney, you will answer that ‘ Yes.’ If he did not, you will answer it ‘ No,’ and bring in a verdict of ‘ Not guilty.’
Mr. Beilley: There is one element — the intent.
The Court: I supposed I said that — intended to influence him by the giving or offering of the money. Now, I cannot intimate what your verdict should be. It is a corrupt intent, to influence him by the use of money. That is corrupt, itself. It would make no difference whether Mr. Bilitzke knew it was wrong or not. I may think it is right to steal; but I am liable to be sent to State’s prison for stealing, just the same. The question is whether he intended, by offering him or giving him money, to influence his actions as prosecuting attorney, to either drop the case, or to continue it over the term. * * *

After a time the jury returned into court again and the following proceedings were had:

The Court: Have you agreed upon a verdict yet ?
Juryman: No, sir.
The Court: I understand you wish some further instructions ?
Juryman: There is a fact we don’t agree on as to your instruction.
The Court: As to what particular ?
Juryman : I think that the particular is before your honor.
The Court: In regard to corruption ?
Juryman: Yes.
The Court: What would be a corrupt offer ?
Juryman: Well, I guess so.
The Court: I understand that, from the note I received from the foreman. If Mr. Bilitzke offered Mr. Crowley or paid him money for the purpose of getting Mr. Crowley — influencing Mr. Crowley to dismiss the case, or put it over the term, that would be corrupt — that would be a bad purpose, because Mr. Crowley, as prosecuting attorney, was supposed to act according to his own judgment, and for any one to undertake to bind — to undertake to influence him by the use of money, would be a corrupt offer. It involves the intent — if the intent was, on Mr. Bilitzke’s part, to get him to put the case over because he was to be paid money, that would be a corrupt offer.”

Error is assigned upon these instructions, and it is argued by counsel that in so charging the jury the court eliminated the material question of “corrupt intent,” and gave them to understand that, if respondent paid the money to influence the prosecuting attorney to put the case over the term, he would be guilty of the offense charged.

The statute upon which this information is based is section 11311, 3 Comp. Laws (5 How. Stat. [2d Ed.] § 14724). It provides that:

“ Every person who shall corruptly give, offer or promise to any executive, legislative or judicial officer * * * any gift or gratuity whatever, with intent to influence his act, vote, opinion, decision or judgment on any matter * * * shall be punished by imprisonment in the State’s prison. * * * ”

It will be observed that corrupt intent is made a necessary ingredient of the offense created by this statute. It therefore became necessary for the people, not only to charge, but to prove, a corrupt intent upon the part of the respondent in offering the money to the prosecuting attorney, and the respondent was entitled to have the jury so instructed. The trial court did so instruct them in his main charge, but in some of his later instructions he omitted the element of corrupt intent, and it is urged that the jury were misled by this omission.

If the respondent offered the prosecuting attorney $50 to induce him to put the case over the term, under the belief that it was for his trouble and costs, and that the prosecutor had a right to demand and receive it, he would not be guilty of the offense. Neither would the payment of money to the prosecutor to influence him to put the case over the term be evidence that he did it corruptly, if he did it under the belief and under the circumstances which he now contends he did. The presumption of innocence would protect him from this conclusion until it was shown that it was done for a bad purpose. If the position of the prosecutor was that he had been to trouble and expense in getting ready for trial, he would have had a right to demand as • a condition to giving his consent that the county be reimbursed for what it had expended. The offer of money by respondent under these circumstances would have been for the purpose of influencing the action of the prosecuting attorney, and yet it would not have been a corrupt offer.

It is quite evident that the jury were having much trouble in reaching a verdict, and the question of the corrupt intent was the precise question which was perplexing them. In view of this, and the fact that the final instruction failed to state the necessary connection between the act of offering and the corrupt intent, we think it is not unlikely that the jury were misled as to their duty in the premises. Having reached this conclusion, it will be unnecessary to consider the other assignments of error.

The conviction is set aside, and a new trial granted.

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


text:
    PEOPLE v. HATINGER.
    1. Criminal Law — Intent—Constitutional Law.
    It is within the authority of the legislature to forbid the doing of an act, and to declare it criminal without regard to the intent of the' doer.
    2. Intoxicating Liquors — Local Option — Intent—Good Faith.
    Guilty knowledge that a beverage sold as a soft drink contained 5.6 per cent, alcohol is not a necessary ingredient of a violation of the local-option law. Act No. 183, Pub. Acts 1899 (2 How Stat. [2d Ed.] § 5017 et seq.).

      3. Constitutional'Law — Trial by Jury — Directing Verdict in Criminal Case.
    Where none of the facts were in dispute, and under an agreed statement of the facts which showed that the accused sold a beverage containing 5.6 per cent, alcohol in violation of the local-option law, the trial court committed no error in advising the jury that [they should retire and find a verdict of guilty, and that it was their duty so to do, at the same time permitting them to retire and deliberate on their verdict: respondent’s right to a trial by jury was not invaded.
    Exceptions before sentence from Montcalm; Davis, J.
    Submitted January 28, 1913.
    (Docket No. 147.)
    Decided March 20, 1913.
    Ernest Hatinger was convicted of violating the local-option law.
    Affirmed.

      Charles B. Barden, Prosecuting Attorney, for the people.

      L. C. Palmer, for respondent.
   Bird, J.

Under an agreed statement of facts in the trial court, the respondent was convicted by a jury of a violation of the local-opt'ion law. He now seeks to have the conviction set aside by this court, on the ground that it is at variance with the law.

It appears from the stipulation of facts that respondent, in the months of August and September, 1913, was operating a lunch and soft drink counter in the village of Ed-more; that he had on sale what was known as “ Old Fort Cider,” which he purchased under a- positive guaranty that it contained no alcohol; that the same was analyzed and found to contain 5.6 per cent, alcohol; that as soon as respondent learned that it contained alcohol he discontinued the sale. It is conceded by the people that respondent bought and sold the cider in good faith and with no intent to violate the lp.w.

It was the claim of respondent that under the case made by the stipulation he was entitled to a directed verdict of not guilty. This claim is based upon the concession of the people that respondent had no intent to violate the law. The contention of the prosecuting attorney was that the question of intent was immaterial, and was not a prerequisite to a conviction. The trial court agreed with the contention of the prosecuting attorney, and instructed the jury that it was their duty to return a verdict of guilty.

The question raised is one of construction of the statute which is charged to have been violated. While most of the offenses defined by the criminal laws involve guilty knowledge or intent, it is admittedly competent for the legislature to forbid the doing of an act and make its commission criminal without regard to the intent of the doer. People v. Waldvogel, 49 Mich. 337 (13 N. W. 620); People v. Roby, 52 Mich. 577 (18 N. W. 365, 50 Am. Rep. 270). If the legislature may create offenses with or without the element of intent, it becomes important to inquire what its intention was with, respect to the passage of Act No. 183 of the Public Acts of 1899.

Section 1 of the act prohibits in positive terms the sale of intoxicating liquors, and no language is used which indicates that the element of intent is to be read into it. Had the legislature intended to make the intent to violate the law an essential element, it would have doubtless used some appropriate language indicating its purpose. If it were necessary to prove intent to violate the law before a conviction could be had, the act would fall far short of doing what the legislature obviously intended it should do; and presumably in this can be found the chief reason why it did not incorporate into the act the element of intent. Laws forbidding the sale of intoxicating liquor and impure foods would be of little use, if convictions for their violations were to depend on showing guilty knowledge. The fact, then, that respondent had no knowledge that the cider contained alcohol and that he purchased it and sold it in good faith, with no intent to violate the law, will not avail him in the face of his admission that he sold it and that it contained alcohol. State v. Tomasi, 67 Vt. 312 (31 Atl. 780); People v. Ingraham, 100 Mich. 530 (59 N. W. 234); People v. Roby, 52 Mich. 577 (18 N. W. 365, 50 Am. Rep. 270); People v. Waldvogel, 49 Mich. 337 (13 N W. 620); 23 Cyc. p. 184.

The trial court, in charging the jury, said to them, in part:

“ Under the admitted state of facts in this case, I deem it my duty to say to you that you should retire and find a verdict of guilty against the respondent in this case. Under the facts X can see no other way out of it. It may seem like a hardship, but X think it is my duty to say this to you; and I think it is your duty to find him guilty under the charge of the court.”

This is said to have been error on the part of the court, in that it invaded the constitutional right of the respondent to have his guilt passed upon by a jury. No impropriety is apparent in this instruction. None of the facts were in dispute; they were all admitted. Under these circumstances it was proper for the trial court to advise the jury as to the law applicable to the admitted facts, and also to advise them what their duty was in the premises. After so advising them, they were permitted to retire to deliberate on their verdict. The instruction given went no further than this, and was clearly within the holding in People v. Neumann, 85 Mich. 98 (48 N. W. 290).

The conviction is affirmed.

Steere, C. J., and Moore, McAlvay, Brooke, Kuhn, St.one, and Ostrander, JJ., concurred.


text:
    FREUND v. FREUND.
    Divorce — Alimony.
    From property of defendant worth upwards of §9,000, it was not an excessive award to decree the payment of §3,500 alimony and §25 monthly for the support of the two children of the age of 6 and 7 years respectively, although complainant had no property when she married defendant, and his property had not materially increased thereafter.
    Appeal from Berrien; Des Voignes, J.
    Submitted January 22, 1913.
    (Docket No. 47.)
    Decided March 20, 1913.
    Bill by Emma S. Freund against John Freund for divorce. From a decree for complainant, defendant appeals.
    Affirmed.

      Gore & Harvey, for complainant.

      O’Hara & O’Hara, for defendant.
   Bird, J.

The complainant filed her bill of complaint against the defendant to obtain a decree of divorce from him upon the ground of extreme cruelty. The defendant denied the allegations of cruelty, but made no defense to them. The contest centered around the question of alimony. The chancellor granted complainant a decree of divorce, gave her the custody of the children, and awarded her the sum of $3,500 as permanent alimony, and the further sum of $25 per month to be paid for the support of the children. The defendant appeals from this part of the decree, claiming that the allowance is too large, and out of proportion to the means which he actually possesses.

The record shows that defendant is engaged in a growing and prosperous wholesale and retail meat business in the city of St. Joseph, and that he is the owner of real and personal property. The complainant’s proofs show that a fair value of his property is $12,000 over and above the good will of the business. The testimony offered on. behalf of defendant shows that he is not worth in excess of $7,000. The chancellor, after hearing the witnesses on the question of value, inspected the properties himself, and came to the conclusion that defendant’s net worth was $9,000. We have examined all of the testimony in the record bearing upon these estimates, and we are of the opinion that the chancellor did the defendant no injustice in the conclusion which he reached on the question of value. If any error as to value was made, it was in fixing it too low, rather than too high. The good will of the business was not taken into account, and the record shows that it is a valuable asset. Had this been the only asset defendant possessed, it would have been given serious consideration in fixing the alimony.

But it is urged with much earnestness that, if the chancellor was right in the conclusion he reached as to value, the sum awarded to complainant is much too large. In support of this contention, it is pointed out that these parties were married only about 10 years, that complainant had no means when she came to him, that the net value of his property has not increased during the years they have lived together, and that she ought not to be permitted to go away with upwards of a third of his property. It appears that complainant is now 43 years of age, and that, when she married and went into defendant’s home, she assisted in caring for some of his children by a previous marriage. As a result of her marriage with defendant, two children were born to them, one of whom is now six years and the other seven years of age. There is no testimony in the record from which we may conclude that complainant has been other than a good wife and discharged her duties as such. She may not have helped to increase defendant’s worldly possessions during their married life, but defendant has helped to increase her burdens by the eare and attention she will have to bestow upon the children for several years to come. And then, too, it must not be overlooked, that the defendant’s cruel treatment of complainant has made possible this division of the property. A six per cent, income on the award would amount to $210. This, added to the $300 awarded to the children, will make an annual income of $510. To live on this annual income will compel complainant and her children to live economically. This sum is probably very much less than it cost defendant to support them before they left his home. Under all the circumstances of the case, we are not disposed to view the award as excessive.

The decree of the lower court will be affirmed. Complainant’s application for an allowance to cover counsel fees and printing brief in this court has been considered, and an allowance of $150 will be made therefor, in lieu of all taxable costs.

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


author: Ostrander, J.

text:
    BOWSHER v. GRAND RAPIDS & INDIANA RAILWAY CO.
    1. Railroads — Negligence—Crossing Accident.
    Evidence that plaintiff’s 18 months old child was killed at defendant’s crossing, that the statutory crossing signals were not given, and, on defendant’s behalf, that the child might have been caught and thrown by the suction of the train, that small objects could not be seen at the crossing from an approaching engine, because of the fences and cattle guards and that the motion of the train interfered with accurate vision, the engineer and fireman both claiming that they kept a careful lookout on the date and place in question, held, insufficient to sustain a verdict finding the failure to maintain a proper lookout was the proximate cause of the accident.

    2. Same — Evidence.
    When inferences of fact are permitted to outweigh positive testimony of witnesses not impeached or otherwise disputed, the proven or admitted facts and the necessary or reasonable inferences therefrom should be inconsistent with such testimony.
    3. Same — Signals—Neglect to Blow Whistle.
    It could not be said, however, as a matter of law, that the giving of statutory signals for the crossing could have had no effect on the child: whether the signals were omitted, and whether . this negligence caused the accident, were questions for the jury.
    Error to Kalkaska; Lamb, J.
    Submitted January 13, 1913.
    (Docket No. 84.)
    Decided March 20, 1913.
    Case by Dan Bowsher; as administrator of the estate of Lillie Bowsher, deceased, against the Grand Rapids & Indiana Railway Company for the negligent killing of decedent. Judgment for plaintiff. Defendant brings error.
    Reversed.

      James H. Campbell and J. L. Boyd, for appellant.

      Ernest C. Smith, for appellee.

       Care required of railroad companies to prevent injuring young children on track, see note in 25 L. R. A. 784.

   Ostrander, J.

Plaintiff lived on the north side of a highway, 20 to 25 rods east of the defendant’s railroad, 3 miles north of the village of Kalkaska, in Kalkaska county. The railroad, which there runs north and south, crosses the highway at right angles. This action is for damages for the alleged negligent killing of plaintiff’s 18 months old daughter at the crossing August 13, 1910. The negligence of defendant alleged in the declaration is a failure to blow the whistle for the crossing; failure to Ting the engine bell, and failure to maintain a proper lookout from the engine for persons or objects upon the crossing. The trial court was of opinion that the failure to give the statute signals could not be considered to be the proximate cause of the injury, and confined the jury, upon the subject of defendant’s negligence, to the question whether the killing of the child was—

“ The direct and natural consequence of the failure of the engineer and fireman on the engine of said train to keep and maintain a reasonably careful lookout to avoid injury to persons on said highway crossing.”

The jury returned a verdict for the plaintiff, upon which judgment was entered.

The single question presented by appellant is whether there was any testimony to support the verdict. The substance of all testimony given is returned. It appears that the child had strayed from her home. Looking for her about the premises and not finding her, the mother went upon the highway to the railroad. She discovered the child, fatally injured, but still alive, lying on the south side of the highway, east of and a few feet from the railroad track, near or against the fence. The material circumstances and the existing conditions proven may be stated in few words. The child weighed from 20 to 25 pounds, and was between 2k and 3 feet in height. She is otherwise descfibed as the ordinary child of that age. She could walk. No witness was produced who claimed to have seen the child after she left the house and before her body was discovered by the mother. Defendant’s fast passenger train, south bound, had just passed the crossing. The mother saw it when she was looking for the child. The time was 4:22 or 4:23 in the afternoon. The train was on time and running somewhat faster than 40 miles an hour — from 40 to 50 miles. The child’s neck and left arm were broken, her great toe split, there was a bruise over her left eye, and a mark, a dent, on her left hand. All evidences of injury, except the broken neck, were on the left side of her body. The skin was not broken, nor was the clothing torn; but the clothing was soiled and dirty. The child wore a string of very small beads, glass beads, some of which the mother found on her person, and some were afterwards found 3 feet, and some 5 or 6 feet, from the east rail of defendant’s track, and, as the record is understood, south of the wagon road and near the fence. Whether search was made for beads in other places is not shown. Footprints of a child, going west, were found 6 feet south of the wagon road and about 16 feet from the south highway fence, going to the' ends of the ties. Whether they were made by this child, or corresponded with others made by her, does not appear.

The defendant’s roadbed at the crossing was slightly above the natural level of the land, and the traveled way was graded to correspond with the level of the tracks. There were cattle guards on each side of the highway; and fences, parallel with the highway, and on each side of it, were built from the cattle guards, at a point about 5 feet from the rails, to the right of way lines and fences. These fences were á£ feet high, constructed of posts and. boards, the boards placed 6 inches distant from each, other. From the posts nearest to the cattle guards, running towards the track, wing fences were in place, the bottom boards of which were longer than and approached nearer to the rails (to within 3 feet) than the boards above them. The fences were in good condition. The railroad for a mile north of the crossing was straight, and, except the fences, there was nothing to obstruct the view. The grade of the railroad descended slightly to the south. The engineer and fireman in charge of the locomotive on the occasion in question gave testimony. Both testified that they did not see the child, or know until the next day that a child had been injured. They both testified, also, that the usual and a careful lookout was maintained from the locomotive at the crossing, that the train was on time, and nothing occurred to interfere with the maintenance of a proper lookout.

None of the testimony tending to establish the foregoing-facts is disputed by oral testimony. Other testimony given was that on the morning of the trial a witness placed a piece of board 8 feet from the tracks, went up the tracks 600 feet, and from that point “ I could just see the edge of the board without looking through the fence.” The size of the board and how it was placed were not shown. The wing fences nest to the track were not then in the condition they were in when the child was injured. A witness testified that he placed a board 6 inches wide and 3 feet high in the center of the highway 30 feet from the track. Going north on the track 150 feet, he could, he said, see, the board through the fence. From a point 400 feet north he could not see the board at all. Defendant’s engineer testified that his position in the cab of the locomotive was some nine feet above the rails, or ground; that approaching a crossing he must be pretty close to it to see over the crossing fence, within 100 feet to see the traveled part of the highway over the fence; that from the cab one cannot see the highway on both sides of the highway for 16 feet from a distance of 600 feet; that 8 feet on either side of the rail was the farthest he could see on account of the fences; that he could see that distance for three-quarters of a mile, and the range of vision would widen but little as the crossing was approached until he was right at the crossing; that the motion of the engine interferes somewhat with observation of small, or any, objects. The fireman did not testify positively that he was watching the particular crossing, because his duties sometimes made such observation impossible. The engineer testified that he was always observing when the fireman was not, and when the train was running.

Testimony was given concerning the atmospheric disturbance caused by a train in motion and the probable effects thereof upon a small child standing near the track; it being a contention of the defendant that the known facts and circumstances support an inference that the child was not struck by the train, but was thrown down and rolled upon the earth. Upon this subject the testimony is that the draft caused by the train would have a tendency to throw down, if standing, and cause to roll on the ground, objects of small weight; and that mail bags thrown off a train had been seen to follow the train 200 feet.

It is obvious that the jury, if it followed the instructions of the court, found the enginemen to have been negligent in observing this crossing; and that a proper lookout would have, or should have, discovered the presence of the child on or near the track in time to protect her. It is equally obvious that it is by inference or by conjecture only that these conclusions can be arrived at. It is the peculiar province of juries to draw inferences of fact; but they must draw them from facts which are admitted or proven upon the trial, and they must be consistent with the admitted or proven facts from which they are drawn. And when inferences are permitted to outweigh the positive testimony of witnesses, not impeached generally, the proven or admitted facts and the necessary or reasonable inferences therefrom should be inconsistent with such testimony. No reason can be given in a case like this for finding that the testimony of the enginemen is untrue, unless it is that their testimony is opposed to and contradicted by other proven facts and circumstances and the necessary or reasonable inferences to be drawn therefrom. The proven fact that the child received the injuries described is not inconsistent with the testimony of the enginemen. That she was struck by the train is not a necessary inference from the fact that the injuries described were suffered by her; and if it is a reasonable inference that she was struck by the train, or by some part of it, it does not follow that she could have been or should have been discovered upon the highway by one maintaining a proper lookout from the engine. There are 5,280 feet in a mile, and, when moving at the rate of 40 miles an hour, a train moves 3,520 feet in a minute, and 4,400 feet in a minute, if moving at the rate of 50 miles an hour. The men on the engine, in the performance of their duty, must examine, as well as vision and movement will permit, both approaches to a highway crossing. Right of way fences are required by law; and the difficulty of seeing a small object, hidden by such a fence as has been described, until the train has approached so noarly to the crossing that the line of vision is over, and not through, the fence, is apparent. To warrant the inference, in face of their testimony, that these enginemen were not observing the crossing, it must be assumed that the child was standing or sitting in a position not obscured by fences and practically upon the rail. The proven facts do not make necessary or reasonably support such an assumption. We conclude that there is no testimony to support the finding that the child was hurt as a direct and natural consequence of the failure of the engineer and fireman on the engine of the train to keep and maintain a reasonably careful lookout.

Plaintiff introduced testimony tending to prove that the statute signals were not given. It is said by appellee that this testimony and the claim of negligence founded thereon should have been submitted to the jury. The appellate court is not usually concerned about errors claimed to have been made against a nonappealing party. Hughes v. Railway Co., 78 Mich. 399 (44 N. W. 396). The point is not discussed by appellant. It is of importance here as affecting the right of plaintiff to a new trial, for which reason we consider it. We are referred by appellee to Battishill v. Humphreys, 64 Mich. 494 (31N. W. 894); Marcott v. Railroad Co., 47 Mich. 1 (10 N. W. 53); Keyser v. Railway Co., 56 Mich. 559 (23 N. W. 311, 56 Am. Rep. 405). If the signals were not given, there was a distinct violation of law, and therefore evidence of negligent conduct of defendant’s servants. Whether such conduct was unimportant depends upon whether we can, say that the failure to give signals could have had noj effect upon the conduct of the child. In Marcott v. Railroad Co. it appeared that a child 2£ years old was killed by defendant’s train, and testimony tended to prove that the statutory signals were not given, which, it is said, “ we cannot, as matter of law, say had no effect on the result.” There was evidence of efforts of bystanders to rescue the child after the approach of the train was discovered ; efforts which might have been sooner exerted. In Keyser v. Railway Co., a child years of age was run over. The question of failure to give signals does not seem to have been a point of importance in this court, although the failure to fence the right of way was regarded as a fact of importance. In Battishill v. Humphreys the injured child was three years old. It was said that whether the signals were given was a question for the jury, and was properly submitted to them. We are impressed that we should not say, as a matter of law — that is, indulge a conclusive presumption of fact — that if proper signals had been given, they would not have affected this child as they are intended to affect all who hear them. Undoubtedly, the precocity, environment, and previous instruction of the child, if known, would afford some aid in determining what its conduct would be likely to be in such a case. The law requires the signals to be given for the safety and protection of all persons lawfully upon the highway; and we think it was for the jury to determine whether failure to give them, if there was such failure, was a material fact.

The judgment is reversed, and a new trial granted.

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


text:
    McFARLAND v. CHARLES HEBARD & SON.
    Master and Servant — Duty to Protect Servant — Negligence
    —Personal Injuries.
    Defendant, having undertaken to carry the plaintiff, an employó, by boat to the place where he was to work, and being compelled to put him ashore at another point, owed plaintiff a duty to direct him by a safe route to the boarding house conducted by defendant, to which plantiff was sent, and it was for the jury to determine whether the duty was properly performed, by sending plaintiff along a tramway in the dark in charge of a man with a lantern in suoh manner that plaintiff was unable to see the width of the tramway and stepped off while attempting to make way for a car running on the structure.

    Error to Baraga; Streeter, J.
    Submitted January 16, 1913.
    (Docket No. 139.)
    Decided March 20, 1913.
    Case by Hugh McFarland against Charles Hebard & Son for personal injuries. Judgment for defendant on a directed verdict. Plaintiff brings error.
    Reversed.

      J. L. Heffernan, for appellant.

      Mason & O’ Connor, for appellee.

       As to duty to warn or instruct servant, see note in 44 L. R. A. .33.

   Ostrander, J.

Defendant is a corporation. Plaintiff was injured upon premises belonging to defendant October 31,1907. He began this suit March 30,1910. It was tried October 30,1911, and upon the testimony introduced by the plaintiff a verdict was directed for the defendant and judgment entered on the verdict. The bill of exceptions contained all of the testimony, and, the court having been of opinion that it did not tend to prove negligence on the part of defendant, the single question presented is whether, viewing the testimony most favorably' to plaintiff’s contention, it tends to prove negligence.

The circumstances attending plaintiff’s injury are peculiar. He was one of a party of twelve men who had been, hired to work for defendant and had been carried on a tugboat belonging to defendant from L’Anse to Pequaming. At the latter point defendant had a dock and sawmill. It was intended to disembark the men at some other point, but weather conditions caused a change of the plan, and at some time between 5 and 6 o’clock in the evening the men were put on shore at Pequaming. The testimony for plaintiff tends to establish the following facts: He was a stranger to the surroundings. The men. were directed by the captain of the tug to leave it, go to a tramway, follow the tramway until a stairway leading from it was reached, descend the stairway, and go to a boarding house for the night, leaving their clothing, etc., on the tug. To reach and go upon the tramway it was necessary to climb a pile of timber. Reaching the tramway, the width of which he could not see, the plaintiff, who was in the immediate company of the man wlu> hired him for defendant, proceeded for some distance, when a tram car, drawn by a horse, was heard apparently moving towards them. Some one said:

“ ‘There is a car coming; you better stay here till I see.’ * * * I stepped to one side. * * * I was afraid the car would run over me.”

No light was carried either by the men whom plaintiff accompanied or upon the car, or the horse, and plaintiff, afraid of the approaching car, which he could not see, stepped to the side of the tramway and off of it, falling a distance of 12 or 15 feet. There was a merchandise dock at which the men might have been landed. While the testimony leaves much to be desired in the way of description, of the premises, it is to be inferred and appears to be conceded that the tramway was an elevated structure running from the mill to and over the water; and that cars of lumber and slabs were drawn upon it from the mill and piled alongside the tramway; that the tugboat had tied up at or near the end of the tramway; and that the men were obliged to climb from the boat upon the lumber to the tramway, which was properly constructed for the purposes for which it was used and wide enough to permit the car to pass them. The attorney for the defendant, in moving a peremptory instruction to the jury, admitted that the captain of the boat was, at the time, the agent of defendant. There is no testimony more favorable to the plaintiff than this; there is testimony introduced in his behalf which is less favorable. The duty of the defendant alleged is—

“To provide a safe landing for plaintiff from its said tugboat and to see that proper instructions and directions should be given him when they would not permit him to stay overnight on said tugboat and when no other safe way of getting ashore was told him or known to him, * * * and not to invite him to go upon said premises of the said defendant without instructing him as to the nature and construction of said tramway and premises so that he might avoid the risk to which he was exposed by such nature, construction, and surroundings, and the darkness which existed.”

The learned trial judge said to the jury.

Now, I have been unable to discover any failure in the duty that Hebard & Son owed to this plaintiff. There is no testimony in this case to show that this platform, trestle, or whatever it is that the tramway was on, was not properly constructed, was not oí sufficient width to permit a man to pass a car which might be moving on the tramway. There is no testimony to show that the car was not Tunning there in the ordinary course of business. There is no testimony to show that the man who was conducting this party with the lantern was not familiar with the premises and competent to conduct them in a safe way, and there is testimony that the plaintiff was in direct company with the man who hired him, and that they were with the lantern which had been provided for their safety at that time. That he was seriously injured, I think there is no question; but I have been unable to receive information from the attorney for the plaintiff as to in what particular he claims that the defendant company, or firm, Hebard & Son, was negligent in the matter in any degree. And from the testimony as it stands in this case it seems to me that the only proper conclusion to arrive at is that it was one of those unfortunate occurrences which we call accidents which happened to this man under circumstances of comparative safety. I say that because 13 out of the 14 that were in the party were not injured or molested at all, all in the same condition. There is no testimony here to show that there was not ample space at the side of the platform to avoid the car if one was coming. And every particle of testimony he has given, so far as I have been able to follow it, shows that while the injury was occasioned by his falling from the trestle, perhaps under circumstances which would have happened ordinarily and without attributing any fault to himself, as I say, I fail to see that he has shown any fault on the part of the defendant, and therefore I think it is my duty to direct you to find a verdict in favor of the defendant.”

In disembarking plaintiff, the defendant owed him some duty, especially in landing him upon its own premises. The tramway may have been a safe way to travel in the daylight, or in the night by one acquainted with the surroundings. Knowledge acquired generally by one accustomed to work about such premises would be some protection. We cannot say, as matter of law, that defendant’s duty was properly performed. Defendant had undertaken to convey plaintiff from L’Anse to another point. Circumstances required it to. put him ashore, in the dark, at a different place. • Under the circumstances it owed him the duty to direct him by a reasonably safe way from its boat to its boarding house, if such a way existed, and if not, and if the way pointed out was unsafe, or might become so during plaintiff’s journey over it, to either advise him of danger and how to avoid it, or to escort him.

If the jury believed that an escort with a lantern was provided, it would still be a question of fact whether this was a- reasonably sufficient provision, all the circumstances being considered. We suggest nothing concerning the merits of the controversy. We hold that whether defendant discharged its duty to plaintiff is, upon this record, a question of fact for a jury.

The judgment is reversed, and a new trial granted.

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