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MASTER AND SERVANT.

1. A verdict should have been directed for defendant, on the trial
of an action for negligently killing plaintiff's intestate, an
employé in the casting room of defendant's iron works,
killed by the falling of pig iron down a chute, upon decedent
who had been set to work there without the knowledge of
the operator of the crane which carried the iron; the testi-
mony disclosing that a proper system was in operation in the
factory, and if decedent's fellow-servants had followed their
instructions and such system, decedent would not have been
injured. Barto v. Detroit Iron & Steel Co., 135.

2. In an action by a lineman of an electric power company, for
injuries received by coming in contact with high tension
wires which he was not informed were charged, a failure to
instruct plaintiff how to handle live wires was not a ground
for recovery, under testimony showing that plaintiff was not
handling or attempting to handle live wires at the time he
was injured. Argersinger v. Commonwealth Power Co., 282.
3. Where the employé of defendant, superintending the gang in
which plaintiff was employed, promised, at the time of hiring
plaintiff, to warn him when he should begin to work among
dangerous wires, the promise was within the scope of the
authority of the superintendent who had authority to hire
men, and created a duty of defendant which could not be
delegated, and negligence in omitting to give the promised
warning was not the negligence of a fellow-servant. Id.
4. But it was error to charge the jury that a duty existed to give
such warning independent of the superintendent's promise to
advise plaintiff of the danger. Id. 283.

5. Plaintiff was employed by defendant to load coal on its engines,
by means of a derrick and numerous buckets. The method
of dumping full buckets was to release a spring held by a
wedge in the bottom, which then turned on a rod and dumped
the coal. Occasionally buckets dumped prematurely. It
was customary for plaintiff to write to his foreman at an-
other town when there were buckets in need of repair, and
men were sent to repair them. Plaintiff wrote less than two
weeks before his injury that certain buckets were out of re-
pair. He was injured by the premature dumping of one
of the buckets which he seized with his hand instead of us-
ing a rope attached to the chain which held it. The evidence
did not show that he supposed it was a defective bucket when
he used it. Held, that plaintiff did not know the bucket was
out of order and sent no notice concerning it, and therefore no
promise to repair it could be inferred. Lukovski v. Michigan
Central R. Co., 361.

6. Since plaintiff knew that the buckets of coal frequently
dumped when they struck the side of the tender, and that he
could and did, at any time when a bucket was out of repair,
set it aside, he was bound to make a reasonable inspection of
the appliance, and assumed the risk of their striking the car
and dumping. Id. 362.

7. Where two methods of guiding the bucket were apparent, and

MASTER AND SERVANT-Continued.

it was safe to use a rope attached to it, and it was dangerous
to guide the bucket by hand, plaintiff could not recover for
injuries received as a result of choosing the more dangerous
way. Id.

8. A laborer working in a mine, subject to discharge at any time
by the proprietor, receiving payment for removing shale and
rock, by the ton, fixing his own hours of labor, and providing
certain of the tools and materials for carrying on the work,
is a servant, not an independent contractor. Lewis v. Detroit
Vitrified Brick Co., 489.

9. It was a question for the jury whether defendant used reason-
able care in providing its miners with a safe place to work,
where it appeared that the operations were carried on in an
old coal mine, from which the timbering was removed as
operations advanced; that blasting was being done in the
part of the mine in which plaintiff worked; that the mining
boss knew certain rock and material in the roof were loose
and liable to be jarred down, but had taken no precautions
to prevent it, and that the materials fell and injured plain-
tiff while he was working in a part of the mine that was used
as a permanent passageway. Id. 490.

10. Whether ordinary care required that the rock be removed or
supported in its place, whether the alleged negligence was
attributable to defendant, and whether plaintiff was negli-
gent, were questions of fact. Id.

11. While evidence that the agent of defendant advised plaintiff,
when he went to work, that the mine was a safe one, and that
plaintiff had had no previous experience in a mine, was incom-
petent to prove the defendant's negligence, its admission did
not prejudice defendant, since the only question of want of
safety, under pleadings and evidence, related to the over-
hanging loose rock, and since plaintiff's inexperience was
only in question as affecting his contributory negligence. Id.
12. In the absence of testimony tending to show that the mine
boss was accustomed to examine the roof of the drift after
each blast, except in the immediate vicinity of the explosion,
defendant could not complain of the court's instructions to
the jury that if plaintiff followed the mine boss into the drift
before the latter had time to make such examination, he was
guilty of contributory negligence, the plaintiff receiving his
injuries at some distance from the usual point of inspection.
Id.

13. It was a question of fact for the jury to determine whether
defendant was negligent in directing plaintiff to carry heavy
iron bars over a deck freshly painted, without warning him
of the slippery condition of the surface, on which plaintiff
slipped and was injured. Orso v. Great Lakes Engineering
Works, 568.

14. Since the negligence of a superintendent or foreman of defend-
ant in so directing plaintiff was the neglect to furnish plain-
tiff with a safe place, it was not the neglect of a fellow-ser-

MASTER AND SERVANT-Continued.

vant, but failure to perform a nondelegable duty of the mas-
ter. Id.

15. Under testimony that plaintiff did not know of the slippery
condition of the surface and that it was not apparent, he is
not chargeable with assumption of the risk. Id.

16. Where plaintiff's intestate was killed in a collision between the
car of which he was motorman and a train at a railway
crossing, at which the brakes of the car failed to operate
properly, and it was claimed that he followed a custom ren-
dered necessary by the position and length of a board plat-
form beside the track, in attempting to stop his car, although
forbidden by a general rule of the employer, less than 30 feet
from the rails, so that his conductor could alight on the
walk, evidence was admissible to show that if he had stopped
the car 30 feet from the crossing, the rear vestibule of the
car would have stood beyond the platform. Rivers v. Bay
City Traction & Electric Co., 696.

17. Testimony of an experienced motorman was competent that a
brake of the kind with which deceased was supplied to stop
his car, would have a tendency to cause slipping of the
wheels. Id.

18. In connection with evidence that at the time of the accident
deceased was operating his car in the usual manner and that
he tried to check it at the usual place, but the brakes failed
to operate efficiently, testimony was competent to show that
the brake had given trouble two weeks previously and the
cause was due to the construction of the brake. Id.

19. The opinion of the conductor who assisted in running the car
at the time deceased was killed, that it would ordinarily be
safe to apply the brake 150 feet away from the track, was ad-
missible on the question of contributory negligence. Id.
20. An employé does not assume the risk attending the breach of a
statutory duty by his employer, although he may be guilty
of contributory negligence which will bar his recovery for
the negligence. Id.

21. Held that the defendant failed to perform its duty to equip its
cars with electric or air brakes as required by Act No. 439,
Local Acts 1901, and that the question whether this failure
contributed to the death of intestate was a question of fact.
Id. 697.

See INJUNCTION (1); NEGLIGENCE (5); TRIAL (12).

MATERIALITY-See FRAUD.

MATERIALS-See HUSBAND AND WIFE (8).

MATTERS EQUALLY WITHIN KNOWLEDGE OF DECEASED
-See WITNESSES (1, 2).

MAXIMS OF EQUITY-See DIVORCE (4); TAXATION (1).

MEASURE OF DAMAGES-See DAMAGES (7).

MECHANICS' LIENS.

1. A mechanic's lien attaches to land owned by husband and
wife jointly only in case the wife signs a written contract as
required by 3 Comp. Laws, § 10711. Restrick Lumber Co. v.
Wyrembolski, 71.

2. And where the owners gave a deed to secure a loan, with a
land contract back, a lien does not attach, under 3 Comp.
Laws, § 10712, providing for such lien, in case the person con-
tracting for materials has no legal title. Id.

3. By guaranteeing the performance of a building contract, a sub-
contractor estops himself from claiming a mechanics' lien
upon the building which was abandoned by the contractor
and constructed by the owner. Frohlich v. Ashton, 132.

4. In computing the percentage to which each of the lienors is
entitled, the unpaid bills for labor and materials for which
no liens have been filed or, if filed, abandoned, should not be
included in estimating the cost of the building which is
abandoned by a contractor and completed by the owner; if
they file and prosecute liens their claims must be considered,
but if they choose to rely on the contractor for payment, the
bills should be disregarded. Opinion in Frohlich v. Ashton,
159 Mich. 265 (123 N. W. 1130), modified on rehearing.
Id.

MEDICAL AUTHORITIES-See EVIDENCE (3).

MEDICINAL PURPOSES-See INTOXICATING LIQUORS (5–7).

MEMORANDUM-See SALES (3).

MICHIGAN AGRICULTURAL COLLEGE - See COLLEGES AND
UNIVERSITIES; MANDAMUS (5).

MICHIGAN STANDARD POLICY-See INSURANCE.

MINES AND MINING.

The court cannot take judicial notice that general inspection
of a mine is necessary. Lewis v. Detroit Vitrified Brick Co.,
490.

See CORPORATIONS; MASTER AND SERVANT (8-12); TENANCY
IN COMMON.

MINORS, SALE OF LIQUOR TO-See Damages (11).

MISREPRESENTATIONS-See DAMAGES (7); FRAUD; PARTIES (1).
MISTAKE-See CANCELLATION OF INSTRUMENTS (1).

MISUSE OF FUNDS - See INJUNCTION (3, 4); MANDAMUS (5);
MUNICIPAL CORPORATIONS (14).

MONEY-See EXECUTORS AND ADMINISTRATORS (2, 4); TRUSTS (1).
MORTALITY TABLES-See DAMAGES (20).

MORTGAGES.

1. A deed of real property to secure a loan made by the grantee,
accompanied by the execution of a land contract back to the
grantor, amounts to a mortgage, and does not divest the
grantor of the legal title to the premises. Restrick Lumber
Co. v. Wyrembolski, 71.

2. Where a husband and wife, in order to effect a loan, each deed
certain lots to parties advancing the funds, and where the
husband takes from the grantees a land contract of the prem-
ises in consideration that he repay the loan and in pursuance
of an oral arrangement with his wife that the real property
contributed by her should belong to him, the transaction
created a mortgage lien upon all the property, leaving the
legal title in the respective owners. Ferry v. Miller, 429.
3. Since such transaction and such mortgage were single, com-
plainant, as grantee of the wife's interest in two lots, could
not be permitted to redeem her lots by contributing a pro-
portionate amount of the mortgage, but on payment of the
entire sum might be subrogated to the rights of the mort-
gagee in a proportionate interest in the realty not owned
by complainant. Id.

See FORECLOSURE (1, 2); PARTIES (2); RAILROADS (4).

MOTIONS

-

See APPEAL AND ERROR (4, 17, 22); COURTS (2);
JUSTICES OF THE PEACE (3); MANDAMUS (6, 7).

MOTOR VEHICLES-See AUTOMOBILES; STREET RAILWAYS (1, 2).
MUNICIPAL CHARTERS-See CONSTITUTIONAL LAW (8).

MUNICIPAL CORPORATIONS.

1. In cities which have elected to revise their charters under the
statute, it is the duty of the common council to provide, by
an appropriation, for the expenses of the charter commis-
sion; the provisions of section 19 of said act being manda-
tory. Attorney General, ex rel. Graves, v. Mayor, etc., of
Adrian, 143.

2. Since it is provided by general law that the council of such
city shall appropriate sufficient funds for the expenses of the
charter commission, inconsistent provisions of the charter of
the city of Adrian, prohibiting further appropriations after
the passage of the annual appropriation bill, must yield to
the statutory requirement. Id.

3. And mandamus will issue to compel the city council to make
such necessary appropriation, after the time fixed by charter
for making the appropriation has passed. Id.

4. The common council will not be required to adopt a particular
resolution, which may not meet with its approval. Id.

5. In an action against a city for personal injuries sustained by
plaintiff, a stranger to the locality, who stepped in a depres-
sion from 6 to 15 inches in depth, at the end of a bridge
across a railway, and who appeared from the evidence to

164 MICH.-48.

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