gers of train service, and denied to the multitude of other workmen engaged in businesses of like and equal hazard."

In Wisconsin the validity of an act of similar import affecting "every railroad company" was sustained by a divided court in Kiley v. Railway Co., 138 Wis. 215 (119 N. W. 309, 120 N. W. 756). The Michigan statute excepts employés working in shops and offices. It includes in its terms all other employés of every common carrier railroad. The language employed is not ambiguous, and we find no occasion to give it by construction a meaning different from that expressed in its plain terms. It applies to all common carrier railroads and to all employés of such railroads except those working in shops and offices. Other railroads and the employés of them are not within its terms. Nevertheless, upon principle, the classification which is made is not clearly arbitrary and the act does not offend against the Constitution of the United States or the Constitution of this State.

This is true, also, with respect to the provisions of section 4 of the act which are claimed to abridge the right to freely enter into contracts. This is demonstrated by authority already presented, in addition to which reference is made to Chicago, etc., R. Co. v. McGuire, 219 U. S. 549 (31 Sup. Ct. 259). Whether section 4 of the act can be held to relate to contracts made after an injury is received is not a question now presented for decision. It is contended, as we understand the brief, that plaintiff was negligent in the same degree that his fellow-servants were negligent; that in such a case the court should determine, as matter of law, that plaintiff cannot recover. The argument involves, to some extent, the construction of that portion of section 2 of the act found in the first proviso:

"That the negligence of such employé was of a lesser degree than the negligence of such company, its officers, agents, or employés.'

The act must be construed, if it is possible to do so, so

as to give effect to the legislative intention. And this intention must be found in the act itself and in the conditions which it is assumed the legislature sought to remedy. Nothing in the act indicates a purpose to interfere with the exercise of the judicial power, as it existed when the Constitution was adopted, a purpose wholly beyond the legislative power. But the intention to modify-altercertain rules of the common law, uniformly applied and enforced by the courts, is evident, and this the legislature undoubtedly may do.

The term "negligence" is employed in the act. Actionable negligence is absence of ordinary care, and ordinary care is the care exercised by the great mass of mankind. If conduct does not measure up to this standard, it is negligent, whether it falls much or little below the standard. The act does not permit every employé of a railroad company injured in its service to recover damages for the injury. There must be actionable negligence, attributable to the company and causing, or contributing, to the injury, or there can be no recovery.

The courts now, as formerly, have the power, and it is their duty, to determine whether there is evidence tending to prove actionable negligence attributable to the company. Courts have the power, and it is equally their duty to determine whether there is testimony tending to prove the mutual fault of the injured person and the company, and that the fault of each was in proximate relation to the injury. It may, indeed, be the duty of the court to determine that, while the fault was mutual, the fault of one of the parties was clearly greater than that of the other. As applied to this statute, we are of opinion that the terms slight, ordinary, and gross negligence, sometimes employed in opinions of courts and by authors of legal treatises, afford no proper basis for reaching the required determination. The question in all cases of mutual fault will be "whether the fault of the defendant was the greater." See Jensen v. Railway Co., 145 Wis. 326 (128 N. W. 982).

The court submitted to the jury this question of greater fault, although in terms of negligence. This, in our opinion, was required by the testimony produced. It is possible, and is suggested, that less confusion is likely to result in cases arising under the statute if the jury be instructed in terms of care or of fault rather than those of degrees of negligence. The testimony showed that plaintiff was an extra, not a regular, brakeman at the time he was injured, and his antecedent earnings had been some $38 a month. He had worked but 16 days in October, and 13 days in November. A witness produced a computation showing the present worth of an annual earning of $800 per year, with an expectancy of 40 years. The total was $17,854.59. On cross-examination, the witness stated that he added the earnings of plaintiff for October and November for 29 days, assumed there were 26 working days in a month, and with these factors produced an annual earning of more than $800. Witness had also made a computation based upon an earning of $300 annually, the result of which was $6,492.58. On a motion being made to strike out the testimony there was an extended colloquy of court and counsel, during which the court said:

"The plaintiff doesn't claim, and there is no proof he will claim, 26 days. They simply claim this: That, if the plaintiff worked 26 days, he should be able to earn $800, which amounts to a certain specific sum. If he should earn $300, it would amount to a certain less sum, under the value for that period."

And the court held there was testimony upon the subject, and then specially instructed the jury as follows:

"The court will charge you, gentlemen of the jury, that this plaintiff is entitled to recover, if at all, the present value of his future prospective earnings; that his expectancy of life is 40.85 years. We have figured 40 years, so as to make it an even number. That means that according to the life table, which is made a part of the case when there is a permanent injury, in order to guide the jury as to the average length of life that a man 23 years of age will live-the court allows this table to be intro

duced. That means that the average man, or the average number of men, at 23 years of age will live 40 years. That does not mean that Mr. Sonsmith will ultimately live that long. He is chargeable with all the vicissitudes of life. He may live longer than the expectation of life, or he may not live that long. But this is simply a guide for you in fixing the probable time that he may live, and then, in connection with that, fixing the probable loss. * * * Now we have said that working 26 days a month, as men ordinarily do as brakemen, at the wages that he did earn, he would earn $825 in one year. Now, we don't need to say to you, gentlemen of the jury, that you are to accept that as final. You may do it. You may reduce it. That is simply a matter for you to consider. But Mr. Sonsmith is entitled to first, what is stated there, loss of earnings from date of injury to date of trial, whatever sum in your sound judgment and discretion he is entitled to."

In the general charge care was taken in the instructions concerning the measure of recoverable damages, and the court again said to the jury:

"All these matters are to be borne in mind by you. There has been testimony introduced here, gentlemen of the jury, concerning the wages this man would earn, testimony as to what he actually earned, and as to what he was capable of earning. In taking that into consideration I wish to say to you that the testimony that has been introduced here is upon a certain theory of employment, from the actual and entire time and the fractions of time and is simply introduced here to aid you in coming to a conclusion, should you determine that there is a liability and that the plaintiff shall have his recompense; and that the evidence introduced here as to what the plaintiff worked for the Pere Marquette, that was put in upon the basis of full time of all secular days, and is nothing that should impress you other than as a simple method in determining in a regular fair ratio what you think he would actually be employed by the defendant. These matters are all to be taken and considered by you as an entirety in coming to this conclusion. All these matters are to be borne in mind by you. The 40.85 years' expectancy is the average duration of life of a normally well man of his age; but, of course, does not absolutely show how long he

will live. It is only evidence tending to show how long a man of his age and in good average health will live; and you are not bound fixedly or absolutely by it, but must determine as best you can, if you find it necessary, what will be the probability of his life. All these matters you will very carefully consider."

Mere speculative computations ought not to be received in cases of this nature, but we think the computation was not wholly speculative. There was some basis for it, and the court fairly advised the jury concerning its value and of their duty.

We do not find in the other exceptions any abuse of the discretion of the court, and, upon the whole record, are of opinion that the judgment must be, and it therefore is, affirmed.

MOORE, C. J., and STEERE, BROOKE, and STONE, JJ., concurred.

Portions of a claim allowed by the commissioners on claims, are, on appeal to the circuit court, correctly included in the verdict by direction of the court, in favor of the claimant who appeals, no objection being made to the justice of such allowance or appeal taken by the estate.

2. SAME TRIAL.

Whether claimant was entitled to an item for work done in clearing land, was properly left, under conflicting evidence, to the jury.