2. In the absence of any evidence as to the date of a prior mar-
riage, or as to the relation of the parties since such marriage,
or as to the continuance or termination of such relations, the
presumption of legality which attaches to a second marriage
is held, not to have been impeached. Id.
3. In the absence of any evidence to the contrary, the presump-
tion arises that from their marriage until the time of filing a
bill for a divorce, the parties sustained the usual relations of
husband and wife. Id.
1. Plaintiff was injured by a chip flying from a hammer, known
as a "softhead," when struck by a riveting hammer, result-
ing in the loss of an eye. The "softhead" was made from a
riveting hammer by taking the temper from one end. The
testimony in plaintiff's behalf tended to prove a defect in its
construction by reason of temper being left in the soft end,
while that of defendant tended to prove that it was properly
Imade in the first instance, but had become hardened and
crystallized by use. Held, that the questions of whether or
not it was a safe tool when furnished, whether plaintiff
assumed the risk of his employment, or whether he was
guilty of contributory negligence, were for the jury. Potvin
v. West Bay City Shipbuilding Co., 201.
2. Whether the continuance of plaintiff in the employment in
which he was engaged at the time of his injury disproves the
testimony of himself and his physician that the loss of an eye
affected his ability to do his work, was properly submitted to
the jury; and, aside from a diminution of earning power, a
verdict of $3,682 is not excessive compensation for such loss.
Id.
3. Where, in such action, it appeared that defendant manu-
factured the tools furnished to its employés-its duty to fur-
nish safe tools being absolute and nondelegable—and plain-
tiff's entire claim rested upon the proposition that defend-
ant's blacksmith left temper in the "softhead," which was
the proximate cause of the injury, and such act being con-
ceded to be negligent if it occurred, the verdict of the jury
established defendant's negligence; and the action of the
trial court in withdrawing a portion of the charge that "de-
fendant did not owe plaintiff the duty of furnishing a rea-
sonably safe tool, but only the duty to use reasonable care to
furnish a reasonably safe tool," if erroneous, was not preju.
dicial to defendant. Id.
4. The duty of the proprietor of a coal mine to employ competent
and trustworthy engineers to operate cages and hoisting
devices, as required by Act No. 100, Pub. Acts 1905, does not
depend upon notification by the State mine inspector as pro-
vided by section 36 of the act, and employés of the mine do
not assume the risk of injury through the negligence of an
incompetent engineer, though the owner has used due care
in the selection of an engineer, and has not been notified of
the incompetence of the engineer selected. HOOKER, J.,
MASTER AND SERVANT-Continued.
GRANT, C. J., and MONTGOMERY, J., dissenting, on the ground
that due care to select an engineer of the prescribed class is
all the statute requires. Layzell v. J. H. Somers Coal Co., 268.
5. In an action by an employé against a mine owner for injuries
resulting from the negligence of an incompetent engineer,
employed in violation of Act No. 100, Pub. Acts 1905, evi-
dence of the habits of the engineer as to the excessive use of
intoxicants, if within the knowledge of defendant's officers
or agents, or of so notorious a character that they should
have known of such habits, is material as bearing upon
the engineer's competency and trustworthiness. Id.
6. Act No. 100, Pub. Acts 1905, imposes upon the owners or oper-
ators of coal mines in this State a positive and continuing
duty to employ only competent and trustworthy engineers to
operate the cages and hoisting devices in said mines, and ab-
rogates the common law rule requiring reasonable care in
such selection, thereby making the master an insurer of
their competency and trustworthiness. OSTRANDER, GRANT,
and MONTGOMERY, JJ., concurring except as to the abroga-
tion of the common-law rule of reasonable care. Id.
7. The duty of furnishing adequate steam capacity to make the
operation of machinery reasonably safe rests upon the mas-
ter, and is within the rule that makes it his duty to furnish
reasonably safe machinery; and, under the evidence, whether
he did or not, was a question for the jury. Burgess v. Hum-
phrey Bookcase Co., 345.
8. Where, in an action for personal injuries, there was testimony
that plaintiff, on different occasions prior to the time of the
injury complained of, knew of the danger of operating the
machine because of a lack of power and not from any defect
in the machine itself, and on the day of the accident had been
assured by defendant's foreman that there was then sufficient
power to operate the machine safely, held, that the questions
of whether he assumed the risk and was guilty of contribu-
tory negligence were for the jury. Id.
9. In such action, whether or not said foreman was a vice prin-
cipal is not considered; since if plaintiff did not assume the
risk, it was because, from information received from what-
ever source, he honestly believed, and had just reason to be-
lieve, that the capacity of the boiler was adequate, and that
there would be no repetition of such fault. Id. 346.
10. The doctrines of fellow-servant and assumed risk do not apply
to a case in which the injury to plaintiff was caused by the
negligence of an incompetent servant employed as an en-
gineer in violation of Act No. 100, Pub. Acts 1905. Capeling
v. Saginaw Coal Co., 437.
11. That the removal of coal from the sump at the bottom of the
shaft of defendant's coal mine, during which operation plain-
tiff was injured, was done on Sunday, when the mine was
not in operation, does not relieve defendant from liability
for injuries caused by an incompetent servant, employed as
an engineer in violation of Act No. 100, Pub. Acts 1905, the
MASTER AND SERVANT-Continued.
removal of the coal so that the cage might go low enough in
the shaft to perform its office being as much a part of the
operation of the mine as any other work. Id.
12. In an action by a servant, employed in a coal mine, against the
owner of the mine, for personal injuries caused by the negli-
gence of an incompetent servant, employed as an engineer in
charge of hoisting machinery, in violation of Act No. 100,
Pub. Acts 1905, evidence examined, and held, to make a case
for the jury. Id.
13. Where the statute imposes a duty upon the employer for the
protection of the employé, an injury from the neglect of this
duty is not a risk assumed by the employé. Kleinfelt v. J.
H. Somers Coal Co., 473.
14. Under section 3, Act No. 100, Pub. Acts 1905, providing that
only competent and trustworthy engineers shall be permitted
to operate cages and hoisting devices in coal mines, the
master is not entitled to notice of the incompetency of a
fireman so employed; since by the very employment the
master neglected a statutory duty. Id.
15. Where, in such action, if one of the proximate causes of the
injury was the act of the fellow-servant, still the master
would not be relieved from liability if it neglected the per-
formance of duties imposed by the statute; since, where an
injury results from the fault of the fellow servant, concurring
with that of the master, both may be liable.
16. In an action against a railroad company for injuries to a
brakeman by reason of a collision of two trains, evidence
examined in the light most favorable to plaintiff, and held,
insufficient to establish negligence on the part of defendant,
and a verdict was properly directed in its favor.
White v.
Lake Shore, etc., R. Co., 480.
17. Defendant's negligence in failing to warn plaintiff of the dan-
ger involved in lifting and moving a heavy car raised on a
jack, onto the rails of a tramway by using a crowbar, and in
failing to instruct him of the proper means to avoid the
same, was a question of fact, where it appeared that plain-
tiff was working outside his usual employment, and was in-
experienced, and that an inexperienced man would be likely
to have used the means employed by him. Johnson v. Des-
mond Chemical Co., 669.
18. The danger of the work done by plaintiff was not, as a matter
of law, obvious to a man of his experience and intelligence.
Id. 670.
19. A servant who is not sufficiently experienced to appreciate the
danger of his work, is not, as a matter of law, guilty of con-
tributory negligence for doing it in a dangerous way. Id.
See EVIDENCE (9); MUNICIPAL CORPORATIONS (22).
MECHANICS' LIENS.
The failure of a lien claimant to furnish an itemized state-
ment under section 10717, 3 Comp. Laws, does not operate as
MECHANICS' LIENS-Continued.
a forfeiture of said claims where all the statutory provisions
had been complied with prior to such demand, and the bill of
complaint, which had been filed and served upon defendant,
contained such statement. Rohde v. Weinberg, 318.
See PRINCIPAL AND SURETY.
A reservation in a deed "of all minerals" includes petroleum,
oil and gas.
Weaver v. Richards, 321.
See BROKERS (2); MASTER AND SERVANT (11, 12, 14).
MISCONDUCT OF COUNSEL-See APPEAL AND ERROR (18);
TRIAL (2).
On a bill to set aside the discharge and assignment of certain
mortgages on the ground of fraud, evidence examined, and
held, not to sustain the allegation of the bill, and to support
a finding that complainant had understandingly executed
said discharge and assignment, and that the mortgages dis-
charged were duly paid. Watrous v. Kenyon, 404.
See EXECUTION (1); LAND Contracts (4); Taxation (1).
MOTIONS.
On motion to correct a decree entered in the Supreme Court,
held, that the questions raised were determined in Gaskill v.
Weeks, 154 Mich. 223. Gaskill v. Weeks, 668.
Under Act No. 196, Pub. Acts 1905, a motor cycle is a "motor
vehicle," and subject to all the provisions and regulations of
such act, relative to such vehicles. People v. Smith, 173.
MUNICIPAL CORPORATIONS.
1. In a proceeding under the statute (chapter 102, 2 Comp. Laws),
to separate the grade of a street and that of several railroads,
by a single improvement, which required the grade of the
street to be lowered and the grade of the railroads to be ele-
vated, the city having appealed from an order confirming
certain awards made by a jury, it is held:
(a) Interested property owners may not profit out of the
change, and compensation for damages may not be
awarded upon any theory of punishing the municipality.
(b) Compensation may not be awarded for damages caused
by the elevation of the railroad tracks.
(c) Compensation is to be awarded for damages to property
abutting upon the portion of the street where the grade
is changed and for such damages only as result from-are
caused by-the change of the grade of the street.
(d) The just compensation to which the owner of property
abutting the street is entitled is the difference in the
value of the property (if any) before the change of grade
MUNICIPAL CORPORATIONS—Continued.
and its value after the change of grade. The provision
in the statute for an assessment for special benefits to
property within a district to be created does not preclude
the application of this rule.
(e) Damages to a business, as such, whether carried on by
the owner of the abutting property or by his tenant, may
not be recovered.
(f) The damages to the interest of a tenant of abutting
property are not necessarily measured, in all cases, by
the value of the term less the rent reserved.
(g) Rendering the street in its changed condition less con-
venient for use and closing the street in whole or in part
to public travel during the progress of the work, are not
matters supporting a claim for damages. City of Detroit
v. Detroit United Ry., 106.
2. In such proceedings it was not error to exclude testimony of
the effect of other separation of grades upon the property in
the immediate vicinity of changes, nor to exclude evidence
that on other streets where such improvements had been
completed, the slope or inclination of the street exceeded that
of the street in question. Id. 107.
3. It was error to instruct the jury that "the onus of any uncer-
tainty that exists here is upon the petitioner. This is not an
action upon contract, but is more in the nature of an action
of tort, wherein these respondents had no chance to agree or
disagree with the proposed improvement, but were entirely
innocent parties; and, if anybody has to suffer by reason of
the necessary uncertainty of the testimony, it ought in all
justice to be the active, moving party, the petitioner, and not
the innocent, passive parties, the respondents." Testimony
too uncertain in its nature to establish the right to compen-
sation under the provisions of the statute may not be made
certain by assuming that upon the municipality rests any re-
sponsibility for such uncertainty. Id.
4. Prior to instituting the proceeding, the city, certain railroads,
and a street railway entered into an agreement in which,
among other things, it was agreed by said street railway that
it waived any and all claim for damages by reason of the
change of grade of any of said streets to any abutting prop-
erty owned or controlled" by it, and it is held, construing the
agreement, that it applied to all property of said street rail-
way whether used by it in the operation of its road or not..
Id.
5. Where, under the statute (chap. 102, 2 Comp. Laws), damages
to property owners occasioned by the change of grades are
recoverable only by the owners of such property as abuts
upon that portion of the street affected, an agreement by the
city with certain railroads to save them harmless from all
abuttal damages occasioned by a change of grades, did not
contemplate such damages as resulted to owners of property
abutting upon the right of way of the railroads and not upon
the streets where the improvement was to be made. City of
Detroit v. Michigan Cent. R. Co., 121.
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