C. W. Dunton, of Manistique, for appellant O'Connell. M. H. Baxter, of St. Ignace, and A. F. Bunting, of Detroit, for appellant Michigan Bonding & Surety Co. Brown & Brown, of St. Ignace (Henry Hoffman, of St. Ignace,

as a result of the injury which he sus- | OSTRANDER, BIRD, MOORE, STEERE, tained on February 3, 1914. In fact, the tes- BROOKE, and FELLOWS, JJ. timony of the physicians negatives any such inference. The record does disclose that the deceased sustained an injury, and during his disability received compensation; but it is further incumbent upon the claimant to show, by competent evidence from of counsel), for appellee. which fair inference could be drawn, that his death resulted from the injury. This the claimant has failed to do, and compensation for the death must therefore be denied. The Industrial Accident Board erred in awarding the compensation, and its determination must be, and is hereby, reversed and set aside.

MOORE, J. It is the claim of the plaintiff that her husband, while in a state of intoxication caused by drinking liquor obtained at the saloon of defendant O'Connell, after he had been forbidden to sell to Mr. Holtquist, fell into a hot pond and suffered such severe burns that he died some days later. This case was brought to recover her damages. From a judgment in her favor for $2,000, the case is brought here by writ of error.

The important errors argued are: (1) In

HOLTQUIST v. O'CONNELL et al. (No. 112.) (Supreme Court of Michigan. May 31, 1917.) 1. TRIAL 295(1)-INSTRUCTIONS-CONSTRUC- the charge of the court to the jury; (2) that TION AS A WHOLE-CIVIL LIABILITY OF SA- the trial judge coerced the verdict; and (3) LOON KEEPER. that the court erred in refusing to grant a new trial.

In an action against a saloon keeper and his surety for damages sustained by plaintiff when her husband, to whom the saloon keeper had been forbidden to sell liquor, fell into a hot pond and suffered burns from which he died, the charge, taken as an entirety, held not such that the jury was misled into awarding plaintiff a recovery though her husband was not intoxicated when he fell.

[Ed. Note.-For other cases, see Trial, Cent. Dig. §§ 703, 704, 713, 714, 717.]

2. TRIAL 314(1)—SUBMISSION TO JURY-COERCING VERDICT.

Where, after the jury had been out for some time, they returned, and the foreman stated that there was no prospect of their agreeing, one of the jurors being quite flat-footed about his position, and the court stated that he hoped the jury would use every endeavor that their conscience would permit to agree on a verdict, etc., that the most important thing was for them to decide conscientiously in accordance with what they thought the facts were, but that they should remember that first impressions are not always correct, directing them to listen patiently to each other's arguments, etc., the charge was not improper as coercing a verdict.

[Ed. Note.-For other cases, see Trial, Cent. Dig. §§ 472, 473, 747.]

3. NEW TRIAL 108(2)-NEWLY DISCOVERED

EVIDENCE.

1. Did the court err in his charge? Counsel say intoxication is a prerequisite to recovery under the provisions of section 20 of the so-called Civil Damage Act (Laws 1887, No. 313), and that the charge permitted a recovery though Mr. Holtquist was not intoxicated when he fell into the hot pond. Among other authorities cited is the case of West v. Leiphart, 169 Mich. 354, 135 N. W. 246.

We quote from the brief of counsel: "A. The defendants requested the court to charge the jury. They are as follows: (1) A person is intoxicated when it is apparent that he is under the influence of liquor, or when his manner is unusual or abnormal and his inebriated condition is reflected in his walk or conversation, when his ordinary judgment and common sense are disturbed, or his usual will power is temporarily suspended; when these or similar symptoms result from the use of liquors and are manifest, then a person is intoxicated within the meaning of the statute. (2) If you find that Peter Holtquist was not intoxicated on December 17, 1914, within the definition above given, but, on the contrary, was suffering from pains and scalds instead of intoxication, then your verdict must be no cause of action so far as any damages for the death of Peter Holtquist is concerned.

In a widow's action for damages against a saloon keeper forbidden to sell to her hus"The court gave request No. 1, but gave reband, the court properly refused to grant new quest No. 2 with the following modification: trial for newly discovered evidence consisting Court: Do you object to that, Mr. Brown? Mr. of statements made by a doctor in the proofs Brown: Yes, your honor; I do. Court: Unless of the widow's claim on her husband's policy of life insurance, which statements were not in- you find, I will insert there, unless you find that consistent with her claim against the saloon the sale of liquor that afternoon whether or not keeper, there being no showing that the widow he was intoxicated, was a contributing cause tohad knowledge of them, nor that by due dili-wards his accident. In that case, the defendants gence defendant could not have procured the would be liable whether he was intoxicated or not, if what drinks he did have contributed to testimony in time for the trial. that result.

[Ed. Note.-For other cases, see New Trial, Cent. Dig. § 227.]

Error to Circuit Court, Mackinac County; Frank Shepherd, Judge.

Action by Matilda Holtquist against Daniel O'Connell and the Michigan Bonding & Surety Company. To review a judgment for plaintiff, defendants bring error. Affirmed.

Argued before KUHN, C. J., and STONE,

"The court was requested to charge the jury, by request No. 5, as follows: (5) If you find that plaintiff's husband was intoxicated when he came to his death, and that O'Connell or his servants furnished liquor which contributed to that intoxication, still you must find a verdict of no cause of action unless Peter Holtquist was a man in the habit of becoming intoxicated, and I charge you that a man is in habit of becoming intoxicated when it is his usual or ordinary conduct to become intoxicated as above defined,

whenever and wherever opportunity affords and he no longer has the will power to withstand the temptation.

to, not only for the actual money loss that she has sustained, but because of the feelings of sorrow and indignation she has suffered because of the wrong doing of the defendant.

"So you see there are several elements going to make up the claim of the plaintiff, which I will define more in detail when I come to read a portion of my charge.

"The defendant says that on the day in question no liquor was sold to Mr. Holtquist, and that therefore the sale of liquor could not have contributed in any degree to the unfortunate circumstances that occurred on the 17th day of December, 1914.

"The defendant says, and has introduced_testimony in the line of his defense, that Mr. Holtquist was not a person addicted to the drinking of liquor; that he did not furnish liquor to, and that no liquor was ever sold, him when he was in an intoxicated condition.

"So you see that you have a very sharp conflict of testimony in this case. The allegations made upon the part of the plaintiff are strenuously denied upon the part of the defendant; so it devolves upon you to decide the several questions of fact here presented. Did Mr. O'Connell, by himself or by his clerk or agent, sell whisky to Mr. Holtquist upon the day in question? Did the drinking of Mr. Holtquist of that liquor sold to him in Mr. O'Connell's saloon contribute to the accident that occurred there that evening, which resulted in his death. *

"The court started to read this request, and had read a part of it, when the following occurred: Court: If you find that plaintiff's husband was intoxicated when he came to his death, and that O'Connell or his servants furnished liquor which contributed to that intoxication, still you must find a verdict of no cause of action. I think I will strike that out. Erase that. Mr. Dunton: Which request was that? Court: The fifth. Mr. Baxter: It explains it further on in the charge there, if the court please. Court: I refuse the fifth. Mr. Hoffman: That may be correct so far as exemplary damages are concerned, but not actual damages. Court: Well, I will modify that. If you will find that plaintiff's husband was intoxicated at the time he came to his death, and that Mr. O'Connell furnished liquor which contributed to that intoxication, still you must find a verdict of no cause of action unless Peter Holtquist was a man in the habit of becoming intoxicated; and I charge you that a man is in the habit of being intoxicated when it is his usual or ordinary conduct to become intoxicated whenever and wherever opportunity affords. and he no longer has the will power to withstand the temptation. Mr. Hoffman: We withdraw our objection. Court: You withdraw your objection to No. 5 as read? Mr. Hoffman: Yes, your honor. Court: But I will modify it to this extent: Aside from the intoxication, if the sale of liquor that afternoon contributed to the accident, then the defendant is liable and the plaintiff is entitled to recover. (Addressing Mr. Brown:) That is your claim, isn't it? Mr. Brown: Yes that is our claim. "Later on in the charge the following occurred: Mr. Hoffman: Now there is just one other point I am not entirely clear about in your charge. Now it is incumbent upon the plaintiff to prove that the defendant sold liquor to the deceased on the day in question while he was intoxicated, or he must be a man in the habit of becoming intoxicated, whether he knew that or not, in order to make him liable. Court: That is conceded by the plaintiff to be the law, is it? Mr. Hoffman: Yes, we concede that to be the law. Court: I will modify my charge somewhat, as given, gentlemen, at the suggestion of the plaintiff's attorney. I withdraw the statement which I made that the defendants would be liable if the mere sale of liquor contributed to the result. The plaintiff concedes that it is not the law. (I supposed they claimed it was, and nothing had been said to the contrary upon the other side.) That is withdrawn. It is now conceded [1] The evidence was in dispute, the issue that the defendants are not liable unless there was an illegal sale of liquor. Unless whisky-was clear-cut. When the charge is taken as or not whisky, necessarily but unless intoxicat- an entirety, we think it clear the jury was ing liquor was sold to Mr. Holtquist at O'Con- not misled. nell's place that afternoon when he was intoxicated, or when he was in the habit of becoming intoxicated, it is conceded that the defendants are not liable for the injury which occurred there that afternoon."

These extracts from the charge should be read in connection with what preceded and followed them. The charge is too long to quote in its entirety, but the judge said to the jury:

"It is the claim here that Mr. Holtquist met his death because of the liquor that he had bought at the defendant's place of business in Engadine.

"It is also claimed that the plaintiff was injured in her means of support because of the fact that he was sold liquor at defendant's place.

"It is also claimed that he was in the habit of becoming intoxicated, and that the liquor that he purchased there was purchased under a violation of the law, under a disregard of plaintiff's right as a wife, and that therefore she is entitled

"The plaintiff must prove each and every element in her case by a preponderance of the evidence, that is, that evidence which outweighs or is more convincing; and, if she fails to do so on any one or more material elements in the case, then your verdict must be no cause of action. I also charge you that the accident itself is no evidence of intoxication."

After the jury had been out for a time and were recalled, the judge said to them:

"If there were illegal sales of liquor which contributed to the death of that man in the hot pond, and those sales were made by the defendant, then she would be entitled to recover her loss of support. If they were made by the defendant and the defendant knew that Mr. Holtquist was in the habit of becoming intoxicated, then she would be entitled to damages to her feelings also; but, if there were no illegal sales, or if the sales that were illegally made did not contribute to the death of Mr. Holtquist-were not the cause of his becoming scalded-why then she is not entitled to recover."

2. Did the trial judge coerce the verdict? This claim is based upon the following:

"The jury had been out for a time when they returned into court and the following occurred: soon? Foreman: There is not. I don't think Court: Is there a prospect of your agreeing we will agree at all. One of the jurors is quite flat-footed about his position. Court: I cannot listen to any discussion. I hope, gentlemen, you will use every endeavor that your conscience will permit to agree on a verdict. It is difficult for twelve men to become of one mind, but it usually can be done. Of course, you must bear in mind that you owe it to your conscience not to decide contrary to what you think the facts were. That comes first; that is the important thing-the most important thing. But remember that we are all human, and our first impressions are not always the correct ones. Listen_patiently to each other's arguments and views. Perhaps, there may be more in the other fellow's views than you think for. Of course, I have no idea of how you stand. I do not wish to know, only

(Supreme Court of Michigan. June 1, 1917.) avenue stood a flat car loaded with lumber. INJURY AT CROSSING.

Appeal to Circuit Court, Bay County; Ches- crossing of this track with the avenue South ter L. Collins, Judge.

It is the plaintiff's claim that as she reached | proaching train before it came in sight? A. the sawmill she was driving the car slowly, and she testified as to what occurred as fol

lows:

"A. All the way coming the women were singing, having a good time, and I was running my car very slowly and enjoying the singing, and when we struck the pavement I said, 'Now, girls, no more noise, because I see the mill is making a noise running nights, and here is this railroad track; . I must be guarded for a train; I must look out for the train.' I had been over that crossing before a great many times, and when I said that to the people in the car there was no more talking or singing or noise in the car after that whatever. As I came up to the crossing and before I had seen any trains I did not hear any sound of any train. I had heard no whistle or bell. Q. As you approached this crossing from the west is there any place after you reach Salzburg avenue that you can look toward the south and see an approaching train? A. No, sir. Q. How far away from that crossing or how far away from Salzburg avenue would you say you had to be in order to see a train to the south? A. Well, I never took any particular notice coming up there; I always came up there on my guard, and I never noticed. I have never noticed as to whether you can, when you get anywhere near Salzburg avenue. Q. In driving along on Salzburg_avenue beside the mill can you look south and see a train when beside the mill? A. Not very far, I know that. As I come up to the crossing that night I did look at the safety gates. They were up, and the safety gates did not lower at any time that night before the train came. Q. Now as you drove up to this crossing state what you did with reference to listening for a train. A. Why, I threw-put my car under perfect control with both feet and hands, and was listening very intently for the noise of the train. The mill made a great deal of noise, and I would look out to view the track and look to see if the gates were coming down, and I remember distinctly to see if there was a train, and then I turned my head to look at the gates, and the gate did not come, and I looked again and I saw the train. At the time I saw the train the gates had not lowered then. Q. Where were you with reference to the corner of the mill, if you know, or as you looked up toward the train what was there between you and the train, if anything? A. Why the mill was between me and the-the corner of the mill and the car that was up there. There was a car loaded, a loaded car there. Q. How long had you been familiar with that crossing; for some time? A. Near since the road was laid, I think. I have lived in Bay City all my life. I have gone over that crossing in the nighttime a great deal times, and in the daytime, and have seen other trains pass over the crossing. Q. You may tell the jury whether or not in all the years that you have been familiar with that crossing you have ever seen a train approach it or pass over it at the rate of speed at which this train was approaching this night? A. I never saw a train never that came that was coming at the rate of speed that was coming that I spied that moment. I had been up at that crossing in the nighttime before when this passenger train came in with Mr. Garland a great many times, both with a horse and automobile, and up to the time of this accident I had never been at that crossing either in the daytime or nighttime when a train came through when the safety gates were not lowered.

No, sir. Q. What was the first knowledge you my head from looking at the gates I saw the had the train was coming? A. When I turned train coming with such terrific force; that is the first I heard that the train was coming. Q. Just tell the jury as best you can what you did or just what happened so far as you can remember when you looked up and saw that train. A. When I looked up and saw that train the first thing that came to me was the folks that were behind me, I was to save them, and I instinctively turned to get away from the train that was coming on to me, knowing that I didn't have time to cross it. I turned to the north. After I had done that and started to make the turn I remember nothing more. Q. When you first saw the train and attempted to turn, state whether or not you turned your car as quickly or as far as you could. A. I must have, because I did not have time to think of anything only simply the thought that came at the moment, to save what I had."

It appeared that the automobile proceeded down the track ahead of the train until it passed over the pavement and was about on the north sidewalk back of the gatehouse, when it was overtaken by the train, hit and whirled end for end off from the track to the west against a telegraph pole north of the north sidewalk on Salzburg avenue. The plaintiff sustained severe and permanent injuries, the extent of which is not questioned upon this record.

The plaintiff on the trial relied upon but two acts of negligence on the part of the defendant as grounds of liability, failure to ring the bell as required by statute, and running the train at an excessive rate of speed. At the close of the plaintiff's proofs, and again at the close of the case, a motion for a directed verdict was made by defendant's counsel because of the alleged contributory negligence on the part of the plaintiff, which were denied. The jury brought in a verdict for the plaintiff in the sum of $8,000. There are 57 assignments of error which relate to the admission of evidence, to the action of the court in overruling the motions for a directed verdict, and alleged error in the charge and refusal to give certain of the defendant's requests to charge.

The first real contention of counsel for the defendant seems to be that the great weight of the evidence supports the defendant's claim that the bell was rung and that no jury question upon that subject is presented. It is claimed that, as both the engineer and fireman testified that the bell was ringing, this cannot be disputed by the negative testimony of plaintiff's witnesses. It appears that in all 14 witnesses were called who were present and heard or saw the accident. Two men who were at the crossing and witnessed the accident testified that they did not hear Ithe bell ring. Six witnesses who were present at the place of the accident and were in a position to have heard it if it had rung testified that they did not hear it. The question of negative and affirmative testimony has recently had the attention of this court in Cinadar v. Det., G. H. & M. Ry. Co., 159 N. W.

know of no rule or regulation of any kind with reference to what hours the gates were operated. I always supposed when the gates were put there there was a man to take care of those gates night and day, as long as a train went over a track. As I approached the crossing on this night I did not know the gateman had gone away. Q. Did you hear any sound of the ap

312, where Justice Stone in writing the opin- | under all the circumstances the plaintiff's ion reviews the cases upon the subject. We contributory negligence should bar recovery. think that here, as in that case, the question See Beach v. City of St. Joseph, 158 N. W. of whether the signal was given was a ques- 1045, and cases therein cited. The plaintiff tion for the jury, who, in determining it, are approached this crossing in the nighttime, to take all the facts and circumstances into when distances are of necessity deceiving and consideration. objects indistinct. The gates which she assumed were for her protection were up, but she nevertheless looked and listened and prepared to stop her car if necessity required. As she approached the track, just how near she could not tell, this train suddenly appeared out of the darkness. Whether she then acted as a reasonably prudent person would have under the circumstances, it seems to us, is a question which it is only proper for a jury to determine. She says she thought instinctively only of the safety of those in the car, saying: