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1. It is argued that plaintiff was guilty of contributory negligence, because he permitted the cow to graze in the highway. If we concede this, it would be no defense to the defendant, in an action like the present one, under the statute, for failure to keep its fences in “effective repair.” Flint, etc., R. Co. v. Lull, 28 Mich. 510; Grand Rapids, etc., R. Co. v. Cameron, 45 Mich. 451 (8 N. W. 99); Talbot v. Railway Co., 82 Mich. 66 (45 N. W. 1113); La Flamme v. Railway Co., 109 Mich. 509 (67 N. W. 556); Neversorry v. Railway Co., 115 Mich. 146 (73 N. W. 125); Hathaway v. Railway Co., 124 Mich. 610 (83 N. W. 598).
2. Defendant was denied the privilege by the trial court of showing that cattle will go over these guards when in perfect repair. This is assigned as error. This action is based upon the allegation that this particular guard was filled up, and thereby rendered less effective, and it was frankly stated by plaintiff's counsel that, if the jury found it was not, the plaintiff had no case. No complaint was made as to the plan or construction of the guards, but was aimed at defendant's failure to maintain it in effective repair. It was testified to without contradiction that to allow the spaces to become filled would lessen the efficiency of the guard. It was therefore immaterial that cattle would sometimes go over them when they were in repair.
3. The section foreman testified that the guard was not filled up. On cross-examination, he was asked if he did not say to the plaintiff on the evening of the day of the accident that, “You were glad you were not on the section that day, that you knew it was not in good condition, that the cow could walk right over it.” Objection was made to this question on the ground that the admission of the section foreman could not bind the defendant. Counsel for plaintiff then stated that it was asked for the purpose of laying the foundation to attack his credibility. The trial court permitted the answer. Later, upon rebuttal, plaintiff was asked whether he had had such a conversation with the section foreman, and he was permitted, over defendant's objection, to answer that he did; the court at the time making it clear to the jury that it was allowed for the purpose, only, of affecting the credibility of the section foreman. The testimony was competent for this purpose, and no error was committed in receiving it.
4. Two special questions were submitted to the jury, but they returned and announced their general verdict without answering the special questions. The following colloquy between court, counsel, and juror then took place:
"By the Court: Gentlemen, there is one part of your verdict that you have not announced. I instructed you that, if you found for the plaintiff, you must answer those two questions, 'Yes' or 'No,' all sign your names to it. So you will have to return to your jury room and answer these questions, as I instructed you, by 'Yes' or 'No,' and then each one of you sign it, and each of you will have to agree on the answers to these questions the same and on your general verdict.
"By a juror: For what reason, or for what cause, are we to answer these questions?
"The Court: These questions are essential parts of the case. Your general verdict you have already given, but these are specific questions bearing upon specific facts.
"Mr. Gaffney: This question, Did the cow come up on the railroad track between the rails the 7th day of May
"Juror: No, it don't read that way.
"Mr. Sawyer: Why, of course. What else could it mean?
“The Court: That applies to and means the 7th day of May, gentlemen.
"Mr. Sawyer: Certainly, it couldn't mean any other time.
"Juror: The question: Was it between the railroad rail and the fence on the cattle guard or between the fence and the cattle guard, that we are to decide upon.
“Mr. Gaffney: It is the claim of the plaintiff that the cow went upon the railroad track between the rails because the track indicated that, that was seen. Now counsel wants you to answer: Did the cow go over the cattle guards between the rails of the railroad, or did it go upon the right of way between the rail and the fence? That is the question.
"Juror: I don't see how we can decide that. "Mr. Gaffney: From the evidence in the case.
“Mr. Sawyer: Well, now, I don't think this is the proper place to discuss this. This jury was instructed by the court to answer these questions.
“The Court: Retire to your jury room, gentlemen.”
Error is assigned because plaintiff's counsel instructed the jury how to answer the questions. We do not draw that inference from the record. The jury evidently did not understand what they were to do, and plaintiff's counsel merely attempted to assist the court in making it plain to them what was required of them. Defendant's counsel also joined in this attempt. If it can be said that what plaintiff's counsel stated in the presence of the jury was an argument, it does not amount to reversible error. Zucker v. Karpeles, 88 Mich. 413 (50 N. W. 373). In this case it was said:
“Counsel are not obliged to furnish special questions until after the arguments are closed, but if they do so, there is no reason why they should not be discussed if they relate to the merits of the controversy."
The other errors have been examined, but we think there is no merit in them. The judgment of the trial court will be affirmed.
MCALVAY, C. J., and BROOKE, KUHN, STONE, OSTRANDER, MOORE, and STEERE, JJ., concurred.
BUTCHER V. BURNS.
ADVERSE POSSESSION — TRESPASS -TITLE-EVIDENCE-BOUNDARIES.
Evidence tending to show that the plaintiff had occupied a parcel of land between his land and defendants' as a wood lot for 40 years and upwards and that the line as claimed by him had been established by a survey some 40 years previous to the alleged trespass, and that later a second survey had been made by the same surveyor and acquiesced in by the person who then owned defendants' premises made a prima facie case of adverse possession.
Error to Hillsdale; Chester, J. Submitted April 17, 1914. (Docket No. 61.) Decided June 1, 1914.
Trespass by John Butcher against Will Burns and others for cutting timber on the property of plaintiff. Judgment for plaintiff. Defendants bring error. Affirmed.
Victor Hawkins, for appellants.
Charles M. Weaver and Charles A. Shepard, for appellee.
MOORE, J. This is an action of trespass. The damage alleged is for the cutting of two white oak and one red oak tree on land described as
“The land of the plaintiff situate in the townsnip of Scipio, in said county, being the north half of the west seventy acres of the northeast quarter of section number twelve, town five south, of range three west, the same extending to a line on the east surveyed and established by George A. Mark, surveyor, on to wit, December 1, A. D. 1870, as the east boundary line thereon, and containing thirty-five acres of land, more or less.
The defendants, who were workmen in the employ of Wells M. Spencer, engaged in clearing the east part of the above-described quarter section, admit cutting the three trees, but deny plaintiff's ownership of the land upon which the trees were situate. It is conceded that the three trees described in the proof were not situate upon the N. 1/2 of the W. 70 acres of the N. E. 14 of section 12, town 5 S., range 3 W., but upon a strip of overrun lying east of and adjoining said description. The case was tried upon the theory that, while the plaintiff had not shown record title to the land upon which the trees stood, he might have acquired title thereto by adverse possession, and had made a sufficient showing to raise a question of fact. The jury returned a verdict against the defendants for the sum of $20, which was trebled by the court, and judgment entered for the plaintiff in the sum of $60 and costs. The defendants bring the case here by writ of error.
It is the contention of the defendants that plaintiff not only did not have title to the land, upon which the trees were situate, by deed, but that he failed to make prima facie case of title by adverse possession, and was not entitled to go to the jury upon that theory.
Counsel say, we quote from the brief:
"In the case of Yelverton v. Steele, reported in 40 Mich. at page 538, the court holds that:
“ 'The legal conception of that adverse possession which is required to constitute a bar to the assertion of a legal title by the owner of it, or by one against whom the adverse occupant brings ejectment, is expressed with singular completeness and accuracy by Mr. Justice Duncan, when he says that it must be "an actual, continued, visible, notorious, distinct, and hostile possession.”'
"We apprehend that this clear and concise statement of the requisites of proof applies to the adverse occupant or claimant who seeks to mulct in damages those who go upon the land claimed. See Dummer v. Gypsum Co., 153 Mich. 622 [117 N. W. 317]. The