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not advised of the existence of this statute at the time of making the contract, and and that they afterwards demanded the bond, which plaintiff refused to execute. The court should also have permitted the defendant to show the amount and character of the material furnished to plaintiff, and labor performed by him, by material-men and laborers, which remained unpaid, and which the officers of the defendant had paid, or for which they were legally liable. These officers are not bound to wait until suit is brought against them before making payment. Any payment made would be for the benefit of plaintiff, and this and any other sum deducted from the amount of his damages in this action, which he was legally liable for to material-men and laborers, and for which, under the circumstances, the officers of defendant were holden, would only be a matter of equity and justice. Even by the terms of the contract, it would seem that there were to be no claims or liens against either party at the time the work was to be fully paid for. It is evident that the parties themselves must have regarded this clause in the contract as one which called upon the contractor to pay for all labor and material before the 25 per cent. which was kept back upon estimate as the work progressed was to be paid.

The court should also have received the evidence offered to show the bill of material purchased from Lewis by the defendant. The plaintiff could only claim the contract price, less what had been paid him and what it cost to complete the building, and the other deductions spoken of. These materials were used in the completion of the building. The defendant also had the right to have deducted from plaintiff's claim what it paid Clark for the slating. We see no error in the ruling of the court under the fifth claim of defendant. If the defendant refused to receive the material, it having been made

especially for that building, and unsuitable elsewhere, the plaintiff should be allowed the diminished value.

The court should also have presented the defendant's theory of the case to the jury, and directed them as to the measure of damages, if the defendant had the right to take possession of the building at the time it did, and complete it. Under any circumstances, the defendant was entitled to set off from the contract price all the necessary and reasonable expenses incurred in its completion. For the errors pointed out the judgment of the court below must be reversed, with costs, and new trial ordered. The other Justices concurred.

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JOHN Q. ADAMS AND DWIGHT L. WEST, ADMINISTRA-
TORS, ETC., V. THE IRON CLIFFS COMPANY.

Negligence-Directing verdict-Presumption against contributory

negligence-Public highways-User-Estoppel

Fellow-servants.

1. Where in a negligence suit there is no eye-witness to the accident it will be presumed, in the absence of any evidence to the contrary, that the deceased used ordinary care and caution, which presumption is sufficient to permit the plaintiff to recover upon showing negligence on the part of the defendant. Mc Williams v. Mills Co., 31 Mich. 274; Mynning v. Railroad Co., 59 Id. 257, 64 Id. 102, 67 Id. 680; Kwiotkowski v. Railway Co., 70 Id. 549.

2. Where in a negligence case there is a chance upon the facts shown for ordinarily candid and intelligent men to arrive at different conclusions, the question of contributory negligence is to be determined by the jury.

8. Public user alone, when sufficiently general and long continued, will constitute an acceptance of a country road.

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4. Where a corporation has for over 20 years maintained a road across its property, which has been used by the public as a connecting link in a road between two towns, and has laid railroad tracks across said road upon its property, and permitted the public to use the crossing, which it has planked, without any dissent, it is estopped from denying that, so far as said crossing is concerned, it bore the same relation and duty to travelers upon it as if it were in fact a public highway, and is bound to use due care and diligence in running its trains over said crossing to prevent injury to passengers lawfully on the road.

5. Where a servant, whose duty it is at any time during working hours when upon the master's premises to perform the duties incident to his employment, starts to leave the premises on his private business, and is injured by the alleged negligence of the master, while upon the premises, and during working hours, he is at the time in the employment of the master.

6. A founder in a blast furnace for the manufacture of pig-iron, who has a separate department,-the inside work of the furnace, and who has nothing to do with the other departments, except when acting through the general management or the foreman or boss of such departments, is held to be a fellowservant of an engineer whose business it is to move the cars on the furnace track as desired in the business, and to assume the risk that said cars might be handled negligently by said engineer.

Error to Marquette. (Grant, J.) Argued October 17 and 18, 1889. Decided December 28, 1889.

Case. Plaintiffs bring error. Affirmed. The facts are stated in the opinion.

Hayden & Young, for appellants.

W. P. Healy (Arch. B. Eldredge, of counsel), for defendant.

[The positions of counsel are stated and discussed, with citation of authorities, in the opinion.-REPORTER.]

MORSE, J. This action is brought for the death of James A. Root, on March 8, 1886, by the alleged

negligence of defendant. The court directed a verdict for the defendant upon several grounds:

1. The declaration alleged that the accident occurred on a public highway, and that the deceased was therefore entitled to all the rights and privileges of a traveler on a public highway. The court found that there was no testimony tending to show that the road in question was a public highway of sufficient force to be submitted to the jury, and held that this was the private road of the defendant, and that the public had acquired no rights in it by user or otherwise.

2. The court found that the plaintiffs' intestate must have been guilty of contributory negligence.

3. That none of the allegations in the declaration of plaintiffs as to defendant's negligence had any foundation in fact, except the averment that the engineer was negligent in starting his train without warning, and that, as to this negligence of the engineer, such engineer was a fellow-servant of the deceased, and there being nothing in the case to show that defendant did not use due diligence in the employment of competent men, and no evidence that the engineer or brakeman was not competent, the plaintiffs could not recover for any negligence on the part of said engineer.

In order to fully understand the bearing and correctness of these rulings it will be necessary to state some of the surroundings and circumstances of the accident, or killing of Mr. Root, as shown upon the trial by the plaint

iffs.

The defendant corporation owns and operates a blast furnace at Negaunee, on the line of the Chicago & Northwestern Railway. pig-iron. This requires room for cord-wood, charcoal, flux, and iron ore, as well as a yard in which to store the pigThe furnace consists of two stacks, and a tract of land called the "furnace bank" is occupied in carrying on the business. This location is unfenced.

This furnace manufactures charcoal

iron.

From the main line of the Northwestern Railway, there ran up to the furnace, at quite a steep grade, two

78 MICH.-18.

parallel tracks, and these two tracks connected with other tracks that ran directly into the furnace. These tracks were built by the defendant, but belonged to the railway company, and were used by both the defendant and said company as occasion required, but principally by the defendant. Across these two parallel tracks, called "furnace tracks," there ran three different roads or wagon tracks, all of which connected with a single road or highway leading from the city of Negaunee to Palmer, a village built up in consequence of the Palmer mine and other mines near it. The lower road across the furnace track, and the one nearest the Northwestern Railway, was the road principally used in going from Negaunee to Palmer, or "Cascade," as that village was sometimes called, and was known as the "Cascade Road," and was the road used as a mail route between the two places.

Upon the morning of the day of Mr. Root's death, and about 10 o'clock, defendant's engineer, John Beck, with one brakeman, John Wannamaki, had started from the furnace bank with an engine, backing from five to seven empty box-cars slowly down the grade towards the main line of the Northwestern Railway. As these cars reached the crossing, the brakeman, who was on top of them, saw some cars loaded with pig-iron, which were standing on the other furnace track, get away from the control of the persons in charge of them, and start down the grade. He immediately set two brakes on what he called the front car, the one furtherest from the engine, of his train, and ran down to help stop the cars on the other track. The cars on the first track were stopped over the crossing nearest the railway, and called by the plaintiffs the "Cascade Road." He testifies that half of the forward car was over the crossing. The next crossing was also blocked by cars, but the upper crossing was open. This was seldom used, however. The testimony is not very definite

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