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"Q. Whereabouts ? "A. By our house. “Q. How did Olavi come to go up near the wagon? "A. He went hanging on the wagon. “Q. Hanging on the wagon? "A. Yes. "Q. Whereabouts did he hang on the wagon? "A. On the side there. "Q. How was the wagon going, fast or slow? "A. It was going pretty fast.
"Q. How fast? Were the horses running or walking or trotting?
“Q. What did the man do? Did you see the man on the wagon ?
"A. Yes. When Olavi was lying down on the ground he took him up then and walked by our house on the porch; then he fell down again.
“Q. Was he playing by the side of the road, or did he go out there?
"A. He was playing in the middle of the road and side of the road.
“Q. Did you say he tried to jump into the wagon ? “A. Yes. “Q. How did he do that?
“A. He jumped on the side and then fell down, then he tried to get out, and the wheel went on his stomach.
"Q. Tell us again how it was, how did it happen?
"A. He went on the side of the wagon, then he fell down, like this, then the back wheel went right on his leg, when he tried to get out, you know. He tried to get out, and the horse went on his stomach.
“Mr. Rees: You mean the wheel not the horse? “A. Yes."
While it is apparent from this portion of this lad's testimony that he agrees with the testimony of the witness Maki, the latter portion of his testimony indicates that he was somewhat confused, and in some places he testifies flatly that plaintiff's decedent was struck first by one of the horses. In other portions he reiterates that he ran to the side of the wagon and attempted to get on and fell under the wheel. These two boys were the only eyewitnesses of the tragedy, There is the evidence of one witness who saw the team going down the hill, but did not see the accident, to the effect that the horses were going fast, and in her opinion too fast. Upon the conclusion of the plaintiff's case, the judge directed a verdict for the defendant in the following language:
"It is claimed upon the part of the defendant that there is no evidence in the case from which a jury can infer any negligence on the part of the driver, and also that the child was guilty of contributory negligence, which was the sole cause of his injuries.
"In my opinion the claimed contributory negligence on the part of the child is of no importance in this case, as the only ground upon which any recovery could be had against the defendant would be upon the ground of discovered negligence, or upon the ground of wilful, wanton, and gross negligence on the part of the driver of the team, for which this defendant would be responsible.
“There is no room for any inference of gross or wanton negligence, or even of discovered negligence, unless there is some evidence in the case from which a jury could infer that the teamster either saw, or could have seen, the child in a position of danger in time to have taken measures to avert the accident.
"After a close scrutiny of the evidence, I am of the opinion that there is no evidence in the case from which a jury could, by any possibility, infer that the driver either saw or could have seen this child in a position of danger in time to have stopped his team and prevented injuring the child. All of the evidence seems to show that the child, on a sudden impulse, ran out and in front of the horses, or ran to the side of the wagon with the intention to steal a ride. There is no evidence from which a jury can infer that the driver saw this act of the child, or that he was in a position, or that the act happened at such a time and under such circumstances that he could and should have seen this act of the child.
"While I personally would hold a driver to the very highest degree of care in passing along a street where children are expected to be, yet even imposing that degree of care upon the teamster in this case, I cannot see that there is any group of facts to be drawn from the evidence in this case from which the jury could say by the most attenuated inference that the driver could have, after discovering the dangerous situation of the child, done anything to avert this accident. So under all the circumstances of the case I feel that it is clearly my duty to direct a verdict for the defendant."
It is the contention of the appellant:
“That it was the duty of the driver, taking into consideration his knowledge of the situation, to drive his team with corresponding care, and in a manner reasonably safe under the circumstances, both as to speed and control. And if, under these circumstances, and such duty, the driver intentionally drove his team at what he knew was a high and dangerous rate of speed, not, indeed, intending to injure any one, nor wishing to injure any one, but in reckless disregard of consequences, and if, because thereof, the deceased was injured, then the defendant would be liable"citing Montgomery v. Railway Co., 103 Mich. 46 (61 N. W. 543, 29 L. R. A. 287); Bedell v. Railway, 131 Mich. 668 (92 N. W. 349).
There is no doubt of the correctness of the legal proposition stated by appellant's counsel, but we have no hesitation in agreeing with the conclusion of the learned circuit judge that this record is barren of testimony which shows that at the time of the accident the driver either knew, or in the exercise of ordinary prudence should have known, of the dangerous proximity of plaintiff's decedent, or of his attempt to climb upon the wagon.
The judgment is affirmed.
MCALVAY, C. J., and KUHN, STONE, OSTRANDER, BIRD, MOORE, and STEERE, JJ., concurred.
MICHIGAN NATIONAL BANK v. HILL.
1. PLEADING — EQUITY DEMURRER APPEAL - FORECLOSURE MORTGAGES. On a demurrer to complainant's foreclosure bill, the objec
tion that a third defendant, who did not file a demurrer or join in that of the defendants, was improperly joined as a party, could not be considered, for the reason that the point concerned only the defendant who did not
demur or object. 2. SAME-SPECIAL DEMURRER—APPEAL AND ERROR.
The ground of multifariousness set up in a demurrer is
special and no appeal lies from the order of the circuit court overruling it.
Appeal from Kalamazoo; Stewart, J. Submitted April 27, 1914. (Docket No. 140.) Decided June 1, 1914.
Bill by the Michigan National Bank against Sarah H. Hill and others to foreclose certain mortgages. From an order overruling a demurrer to complainants' bill, defendants Sarah H. Hill and William E. Hill and Company appeal. Affirmed.
E. M. Irish and C. H. Stearns, for complainant.
Thomas J. Cavanaugh, for defendants S. H. and W. E. Hill.
STEERE, J. This is an appeal from an order overruling defendants' demurrer to a bill in chancery filed by complainant to foreclose six different mortgages, given by William E. Hill and Sarah H. Hill, and for an accounting upon matters connected therewith. Defendant Anthony S. Hill did not appear in said suit.
Defendants Sarah H. Hill and William E. Hill Company appeared and interposed a demurrer, the essence of which is that the bill is multifarious, because it attempts to foreclose several mortgages on several distinct pieces of land given by different persons at different times and for different amounts, and is too indefinite and uncertain in the particular that it fails to sufficiently describe and properly set forth the nature and amount of indebtedness claimed due for advancements, discounts, etc. The lengthy bill of complaint, consisting of numerous paragraphs covering many pages, outlined briefly as possible, is in its main essentials as follows: William E. Hill, who died in October, 1897, was for many years actively in business, in the city of Kalamazoo, under the name of Wm. E. Hill & Co., extensively engaged in the manufacture and sale of saw mill machinery and tools used in the lumber business. He was a regular customer and patron of complainant, doing his banking business with it and obtaining credit accommodations there from time to time. At his death he left his business and property to his wife, defendant Sarah H. Hill. Upon the death of her husband, said Sarah H. Hill took possession of the property and business, made financial arrangements with complainant, and continued to carry on said business under the same name (Wm. E. Hill & Co.) until March 22, 1912, doing her banking business with and receiving accommodations from complainant, as her husband had done. On that date she disposed of said business and all its assets, both real and personal, turning the same over to a corporation organized for that purpose under the corporate name of Wm. E. Hill Company.
The mortgages sought to be foreclosed, though not all covering the same property, were given before this corporation was organized, by Mr. and Mrs. Hill only, are owing to the one complainant, closely connected