picion that she may commit an act which at most would only amount to a misdemeanor, be assaulted and imprisoned, if the officer has good reason to believe, and does believe, that she is plying her vocation in such a manner that it will result in an offense.

No more dangerous doctrine could be laid down. It is a doctrine which, if upheld, would place even the most respectable lady in the land under the surveillance of policemen, and give them authority to arrest and imprison upon mere suspicion of an offense, however insignificant; and, if carried to the extent contained in the charge of the circuit judge, it would not matter how undeserved the bad character or reputation of such person might be. If idle gossip is once set afloat, reflecting upon the character and reputation of the most virtuous woman, and that gossip once comes to the ears of the police officer, he may act upon it, and be led to believe that the woman is upon the street intending to ply her vocation as a street-walker or common prostitute, and at once, without the formality of complaint or warrant, place her under arrest and convey her to jail. The law has more regard for the liberty of the citizen, and there is a more decent and orderly manner of enforcing the law for the public good. The officer had no right to arrest the plaintiff, without warrant, upon mere suspicion that she was upon the street for the purpose of plying her vocation as a common prostitute, even under the provisions of the city ordinance above cited. Our statute gives no such right, and at the common law no such right existed. Suspicion that a party has on a former occasion committed a misdemeanor is no justification for giving him in charge of a constable without a justice's warrant; and there is no distinction, in this respect, between one kind of misdemeanor and another. 1 Archb. Crim. Pr. & Pl. p. 102, note 1; 2 Hale P. C. 89.

An arrest for misdemeanor, without a warrant, by one who does not see the offense committed, is illegal. In People v. Pratt, 22 Hun, 300, it was held that an officer had no authority to arrest, without warrant, a common prostitute, unless disorderly conduct is committed in his presence. It is true that an officer, as a conservator of the peace, may arrest street-walkers or common prostitutes who are on the street plying their vocation; but a mere suspicion that they are doing so, where there is no act indicating that the party is there for that purpose, will not justify the arrest without warrant. In Sarah Way's Case, 41 Mich. 304, Mr. Justice CAMPBELL, speaking upon the subject of arrest without warrant, says:

"It must not be forgotten that there can be no arrest without due process of law. An arrest without warrant has never been lawful, except in those cases where the public security requires it, and this has only been recog nized in felony, and in breaches of the peace committed in presence of the officer. Quinn v. Heisel, 40 Mich. 576, and Drennan v. People, 10 Id. 169."

The court was in error in that portion of his charge relative to the defendant's acting upon his information and belief that the plaintiff was a common prostitute, as a justification for the arrest without warrant. The court was also in error in refusing to give the plaintiff's requests to charge. Each request stated the law correctly as applied to this case, and should have been given. court was also in error in permitting defendant to introduce evidence of specific acts of lewdness on the part of plaintiff. On such a trial, it could not be expected that a party so attacked could be prepared to meet every issue

so made.

The

The judgment must be set aside, with costs, and a new trial ordered.

CHAMPLIN, MORSE, and CAMPBELL, JJ., concurred.

ELIZA ASHTON V. THE DETROIT CITY RAILWAY COM

PANY.

Practice in circuit courts-Demurrer-Negligence-Choice between two dangers-Evidence.

1. Where a defendant does not elect to stand upon his demurrer, when overruled, but pleads issuably, and goes to trial on the merits, an assignment of error on the overruling of the demurrer will not be considered.

2. Plaintiff sued defendant for injuries received in alighting from one of its cars while in motion, and was allowed to testify, as showing her reason for so doing, that on a former occasion the car on which she had taken passage left the main line before reaching her destination, and was driven into defendant's barn, where on leaving it she was insulted by a man in said barn; and that on the occasion of the accident the car again started for the barn, when she rang the bell, but the signal was disregarded, and for fear of a repetition of her former experience she left the car and was injured, and said testimony is held to have been competent and relevant.

3. In such a case the question whether the treatment the plaintiff received at defendant's barn was sufficient to justify her belief that she was avoiding an actually impending danger, into which she was being taken, by leaving the car, is a question for the jury, and not for the court.

4. A physician who is called to treat a person for an injury, when sworn as a witness in a suit to recover damages for the same, may state how the patient described the pain from which she was suffering, and may describe the patient's actions, as tending to inform the jury of the patient's condition.

Error to Wayne. (Hosmer, J.) Argued November 1, 1889. Decided December 28, 1889.

Negligence case. Defendant brings error. Affirmed. The facts are stated in the opinion.

Brennan & Donnelly and Sidney T. Miller, for appellant, contended:

1. The doctrine of choice between two dangers (if we may so call it) is not a very old one. It apparently took its rise in 1816, in the case of Jones v. Boyce, 1 Stark. 493, for, in his opinion in that case, Lord Ellenborough says that is the first of the kind that he recollects. There must be such danger that it would be obvious to the average reasonable man, if he were placed in the position; citing Stokes v. Saltonstall, 13 Pet. 181; Ingalls v. Bills, 9 Metc. 1; Frink v. Potter, 17 Ill. 406; Coal Co. v. Healer, 84 Id. 126; Smith v. Railway Co., 30 Minn. 169; Dimmey v. Railroad Co., 27 W. Va. 32; Eckerd v. Railway Co., 70 Iowa, 353; Solomon v. Railway Co., 103 N. Y. 437; Railway Co. v. Ware, 84 Ky. 267; Reary v. Railway Co., 40 La. Ann. 32; Rose v. Railway Co., 12 Atl. Rep. 78.

2. A carrier of passengers is not an insurer of their absolute safety. If a danger that could not be foreseen is encountered, the carrier cannot be held responsible for damages from it; citing Railroad Co. v. Pillsbury, 123 Ill. 9.

H. C. Wisner, for plaintiff, contended:

1. If one by actual negligence, or by failure to perform his duty to me, places me in a position where I may reasonably apprehend danger, and if, acting under the natural impulse received from the situation, and exercising ordinary care under the circumstances, I avoid the danger, and am injured, he is responsible for the injury, although had I not so acted I would not have been injured; citing Ang. Carr. SS 547, 548; 2 Thomp. Neg. 1092; Shear. & R. Neg. § 28; Stokes v. Saltonstall, 13 Pet. 181; Coal Co. v. Healer, 84 Ill. 126; Frink v. Potter, 17 Id. 406; Ingalls v. Bills, 9 Metc. 1; Railroad Co. v. Paulk, 24 Ga. 356; Wilson v. Railroad Co., 26 Minn. 280; Railroad Co. v. Mowery, 36 Ohio St. 418; Buel v. Railroad Co., 31 N. Y. 314; Twomley v. Railroad Co., 69 Id. 158.

2. A carrier must use at least ordinary care to preserve order and to prevent the commission of violence or of nuisances on his vehicle; citing Shear. & R. Neg. (4th ed.) § 512; Flint v. Trans. Co., 34 Conn. 554.

8. It certainly is settled that appearances, exclamations, and descriptions of pain are competent in an examination to ascertain the condition of an injured person; citing Johnson v. McKee, 27 Mich. 471; Elliott v. Van Buren, 33 Id. 49; Mayo v. Wright, 63 Id. 42.

SHERWOOD, C. J. Mrs. Ashton, the plaintiff in this case, on February 10, 1887, lived on the south side of the Milwaukee railroad, near Ferry avenue, in the city of

Detroit, and was about 52 years of age.

On the evening

of that day, between 7 and 8 o'clock, she took a Russellstreet car, at the corner of Brush and Alfred streets, to go to her home, which was a short distance beyond the end of the line, on Ferry avenue. The barns on Ferry

avenue were some distance from the end of the line, and, when the car approached the barn, instead of carrying plaintiff on to the terminus of the line, the driver turned and drove the car into the barn a number of car-lengths, and when she left the car in the barn she was assailed by a man at the barn, who laid hold of her, and made indecent proposals to her, until she broke away from him, and ran to her home, thereby escaping from his further violence and insults.

The plaintiff further claims in her declaration that, on May 23 next following, she was again a passenger on this same line of cars, between 6 and 7 o'clock in the evening, at which time it was light outside. This time, as before, she intended to ride to the end of the line, and again the car turned into the barn, as it had on the evening in February. She remembered her experience at that time, and rang the bell to stop the car. Finding that it did not stop, she waited a second, and then went out on the rear platform, and got off while the car was in motion, being thrown by so doing, and injuring her knee. It was at this time so light that she could see far into the barn. For the injury to the knee she brought suit, and (after a demurrer to the declaration had been overruled) on the trial recovered $500. When she rang the bell the driver looked back, but drove on, not heeding the bell or making any effort to stop the car. The plea was the general issue. Defendant brings error.

Nine errors are assigned. The first is to the overruling of the demurrer. The defendant did not choose to stand