1. Plaintiff's intestate, a freight conductor, was thrown from a
way car, and killed, by reason of the absence of a hand rail,
which, pursuant to his instructions, had been removed for
repair a few days previously by a workman in the repair shop
of the common employer. Shortly after its removal, the
assistant superintendent, noticing the defect, had directed the
deceased to see that it was remedied; whereupon the deceased
again told the workman to repair and replace the rail, which
the latter promised to do, but neglected it. The deceased,
however, continued to use the car, without protest, up to the
time of the accident. Held, that the deceased assumed the
risk arising from the defective condition of the car, the facts
stated not bringing the case within the exception to the gen-
eral rule obtaining where the servant has been induced to
continue the use of defective appliances by reason of the
master's promise to repair. Shackelton v. Manistee & North-
eastern R. Co., 16.
2. It is not negligence per se for an employer to keep a barrel
of paint containing benzine upon his premises, for use in con-
nection with his business. Burke v. Parker, Webb & Co., 88.
3. An employer is not liable for injuries to his employé from
the explosion of a barrel of paint, which had taken fire with-
out the fault of the employer, occurring while the employé
and others, at the request of the employer, were endeavoring
to extinguish the flames, since the peril was such as to justify
the instruction given. Id.
4. A brakeman will be held to have assumed the risk of injury
from an imperfect kind of drawbar in use on the road on
which he is employed, where he has daily used such draw bars,
and is therefore familiar with the dangers attending their use.
Secord v. Chicago, etc., R. Co., 540.
5. The duty resting upon the master to provide a reasonably safe
place for the employé to perform his services is a personal one,
and cannot be shifted or evaded by any attempt to delegate it
to one who happens to be, as regards some of his duties, a
fellow-servant of such employé. It is also a continuing duty,
to the extent that it requires the master to provide reasonably
for the inspection, and, if need be, for the repair, of premises
or appliances. Anderson v. Michigan Central R. Co., 591.
6. It is no defense, therefore, to an action against a railroad com-
pany by a brakeman for injuries sustained by reason of a de-
fect in the track (e. g., an abrupt depression in one of the
rails), that the immediate cause of the accident was the neg-
lect of the section men, who were charged with the duty of
keeping the track in repair. Id.
7. In such case, an instruction that, if the defendant allowed its
track to become out of repair, it is liable for the resulting dam-
age, is erroneous, since, if the track was reasonably safe as
originally constructed, the measure of defendant's duty was
the exercise of reasonable watchfulness and inspection to see
that it continued in such condition. Id.
See CONTRIBUTORY NEGLIGENCE (4, 8, 9); RAILROAD COMPANIES (4).
MECHANICS-See FIRE INSURANCE (2).
MECHANIC'S LIEN-See ASSUMPSIT.
In an action for negligent injuries, followed by a miscarriage,
an instruction that the plaintiff might recover for all her
personal pain and suffering occasioned by the accident, and
that the fact that she had suffered a miscarriage, while not
giving her any right to damages against the defendant, might
be considered by the jury, if found to be the result of the acci-
dent, is not ground for a reversal, in that it failed to limit the
recovery for the miscarriage to the physical and mental suf-
fering attending the same, where no request was made for
more explicit instructions. Tunnicliffe v. Bay Cities, etc., R.
Co., 262.
MISTAKE-See GAS COMPANIES (2); PAYMENTS (2, 3).
1. It is no defense to a suit to foreclose a purchase-money mort-
gage that knowledge of an outstanding incumbrance was
withheld from the vendee, where the vendor had at the time
arranged for its release, and it was so released after the filing
of the bill, and before damage had resulted to the defendant.
Raffel v. Epworth, 143.
2. A mortgage payable absolutely at a specified time, given to
secure the payment of another incumbrance on land con-
veyed to the mortgagee, may be foreclosed by him upon
default, without first paying off such incumbrance. Id.
See CHATTEL MORTGAGE; ESTATES OF DECEDENTS; TAXES (4);
TRUSTS (4).
MUNICIPAL CORPORATIONS.
1. An information by the attorney general will not lie to compel
municipal officers to repay into the city treasury moneys
which they have unlawfully taken therefrom. Attorney Gen- .
eral v. City of Detroit, 92.
2. Act No. 444, Local Acts 1895, amendatory of the charter of
Grand Rapids, which took effect May 27, 1895, abolished the
office of supervisor in said city, and provided for a board of
assessors, which, "upon the taking effect" of said act, should
perform the duties theretofore discharged by the ward super-
visors in respect to the assessment of taxes; that, on the 1st
day of October following, the board of review and equaliza-
tion, as then constituted, should become vested "for the time
being" with the powers of such board of assessors, and should
perform its duties; that, as the terms of its members should
expire, the mayor should appoint their successors; that, "when
a board of assessors shall be appointed," the supervisors should
cease to perform the duties conferred upon such board, but
should continue to act as members of the county board of
supervisors until the expiration of their several terms of
office, after which the aldermen should represent their several
wards upon the board; and that at such time, "or as soon as
said board of assessors is appointed and its members have
qualified," said supervisors should deliver to it all of the origi-
MUNICIPAL CORPORATIONS-In General-Continued.
nal assessment rolls in their possession, which should there-
after remain in the office of such board, and become a part of
its official records. It was expressly provided that the board
of assessors should make the assessment for the year 1896,
which, under the charter, was required to be completed before
the date at which the terms of the supervisors then in office
would expire. Held, that it was the duty of the board of
review and equalization, acting as a board of assessors, and
not that of the supervisors, to spread the general taxes for the
year 1895, the language of the two clauses last quoted being
construed as though reading, "as soon as said board of assessors
is constituted under the provisions of this act." Attorney
General v. Cogshall, 181.
3. The office of supervisor in cities, not being created by the
Constitution, may be abolished by the legislature at will, and
its functions conferred upon other municipal officers; and the
fact that, in the exercise of such power, an officer is divested
of a part of the functions of his office before the expiration
of the term for which he was elected, and that such functions
are conferred upon city officials elected for another purpose,
does not render the act invalid as an attempted interference
with the right of local self-government. Id. 182.
4. A city charter provided for the annual election of one alderman
from each ward for a term of two years. For the purpose of
reducing the number of aldermen, and at the same time pre-
serving the term of office and the practice of electing but one-
half of the aldermen each year, it was provided by amend-
ment that at the next election one alderman should be elected
from each even-numbered ward for a term of two years; that
in each odd-numbered ward the alderman whose term was
unexpired should hold until the end of his term; and that,
at the expiration of the term of office of each alderman,
his successor should be elected for a term of two years. Held,
that the amendment was not invalid as unjustly discriminat-
ing against the even-numbered wards, in that aldermen elected
therefrom for a term of two years were removed from office
after one year's service. Id.
5. A sidewalk, the only defect in which consists of an abrupt rise
of two inches above the level of the walk, occasioned by
planks' having been laid lengthwise thereon to permit of the
passage of teams to adjoining premises, is reasonably safe for
public travel, within the meaning of 3 How. Stat. § 1446e,
making it the duty of a municipality to maintain its walks in
that condition. Yotter v. City of Detroit, 4.
6. Where the declaration in an action against a municipality for
injuries sustained by reason of a defective sidewalk avers that
the entire walk in front of a specified block had been allowed
to become and remain in a dangerous and unsafe condition,
evidence of the generally defective condition of such walk is
admissible for the purpose of showing notice to the municipal
authorities. Strudgeon v. Village of Sand Beach, 496.
7. In an action against a municipality for injuries from a defec-
MUNICIPAL CORPORATIONS-Defective Sidewalks-Continued.
tive sidewalk, evidence that notice was given to the corporate
authorities that the walk from the schoolhouse to the vil-
lage," which included the walk on which the accident
occurred, was in a dangerous condition, is admissible to
charge the defendant with notice of the defect in question. Id.
See CONTRIBUTORY NEGLIGENCE (1); INFANTS.
8. Under a charter authorizing the common council to fix the
compensation of municipal officers, subject only to the pro-
vision that the salary of no officer shall be diminished during
the term for which he is elected or appointed, the council may,
after the appointment of an officer, but before the commence-
ment of his term, fix his salary at a sum less than that paid to
the incumbent for the preceding term. Wesch v. Common
Council of Detroit, 149.
9. In the absence of a contrary showing, a city council will be
presumed to have acted in good faith and upon sufficient
reasons in reducing the salary of an officer from $1,200 to $5
a year. Id.
10. A city council was authorized by the charter to appoint such
subordinate officers as might be necessary, and to fix their
compensation. The charter further provided that, before any
taxes should be levied for the purposes of any of the several
funds of the city, the controller should present to the council
his estimate of the amount necessary to be raised for the ensu-
ing year for each of said funds; that the council might revise
or alter said estimates, and, when finally adopted, should
transmit the same to the board of estimates; and that such
board should have the right to call upon the council or any
municipal officer for information as to any matter pending
before it. By subsequent enactment it was provided that the
board should have the power, after consideration of the vari-
ous estimates referred to it, to disallow any item in the differ-
ent funds, and that it should be unlawful for the council to
create any expenditure or expend any moneys as to items
specifically disallowed by the board. Held, that, where the
board had assumed to deduct the salaries of certain officers
from the estimate for the general fund, appointments to said
offices thereafter made by the council were illegal, and the
payment of salaries thereunder would be enjoined, although
the estimates certified to the board by the council were not
itemized. Robinson v. City of Detroit, 168.
11. A charter provision empowering the board of estimates of a
city to disallow items included in the annual budget as
approved by the common council is not void as a delegation
of power which under the Constitution (article 4, § 38) can be
conferred upon the common council alone. Id.
See INTOXICATING LIQUORS (1-3); STATUTES (2).
12. Where, pursuant to title 15 of the charter of the city of Sagi-
naw (Act No. 402, Local Acts 1893), the necessity for a proposed
public improvement, and for taking private property therefor,
107 MICH.-47
MUNICIPAL CORPORATIONS—Public Improvements—Continued.
and the compensation to be paid for the land taken, have been
determined by proceedings in the recorder's court, the judg-
ment so obtained cannot be attacked collaterally by one whose
land was assessed to defray the cost of the improvement, but
who was not a necessary party to the proceeding. Brown v.
City of Saginaw, 643.
13. The provision of section 16 of said title, that any person whose
property is taken or assessed may appeal from such judgment.
cannot be construed as giving the right of appeal to one whose
land is assessed but not taken for the improvement, thereby
implying that he is a necessary party to the proceeding, it
being apparent that the words "or assessed" were retained in
such section by mere inadvertence upon the amendment of the
original charter (Act No. 455. Local Acts 1889), which provided
that the common council should fix the assessment district
when it passed the resolution declaring the necessity for the
improvement, that the proceedings should be instituted against
those whose lands were to be assessed, as well as against the
owners of property proposed to be taken, and that the assess-
ment of benefits should be made by the jury awarding the
damages, all of which provisions were changed by the amend-
ment of 1893. Id.
14. It is no objection to an assessment of benefits for a public im-
provement that the members of the council which determined
the assessment district were taxpayers within the city, and
were therefore interested. Id.
15. The apportionment of benefits by the assessing officers is not
subject to attack after the roll has been confirmed by the
council pursuant to the charter. Id.
16. Where it is left to the council to fix an assessment district, its
judgment as to the lands benefited is conclusive. Id.
17. The objections made to the confirmation of a special assessment
roll having been read before the council, the matter was refer-
red to a committee, to afford the parties an opportunity to be
heard. After hearing the parties, the committee reported in
favor of the confirmation of the roll, and it was thereupon
confirmed by the council. Held, that the action of the com-
mittee, when adopted, became the action of the council. Id.
644.
MUTUAL BENEFIT ASSOCIATIONS.
A provision in a benefit certificate, requiring suit to be brought
within nine months after the death of the member, is opera-
tive, where all negotiations relating to a settlement were
terminated by a denial of liability on the part of the company
within 45 days after the death of the insured. Shackett v.
People's Mutual Benefit Society, 65.
NECESSARIES-See HUSBAND AND WIFE (3); PARENT AND CHILD
1. In an action against a street-railway company for injuries to
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