testimony. An examination of the record satisfies us that the question of contributory negligence was one for the jury. Dundas v. City of Lansing, 75 Mich. 499 (5 L. R. A. 143); Argus v. Village of Sturgis, 86 Mich. 344; Graves v. City of Battle Creek, 95 Mich. 266 (19 L. R. A. 641); Sias v. Village of Reed City, 103 Mich. 312; Mackie v. City of West Bay City, 106 Mich. 244; Schwingschlegl v. City of Monroe, 113 Mich. 683; Grattan v. Village of Williamston, 116 Mich. 462.

3. Was there error in allowing the medical experts to express an opinion as to whether plaintiff was simulating? The following occurred upon the trial:

66

"Q. Dr. Kennedy, in your opinion, was or was not this woman simulating?

"A. I do not think that this woman was simulating.

* * *

"Q. Miss Graves, in the time you were nursing and caring for Mrs. McCormick, state what you noticed, if anything, to indicate that she was not injured-that she was putting it on, malingering, or assuming it?

"A. She was not. * * *

"Q. Miss Wright, during the time that you were there, from the Sunday following the accident up to the time when you went away, did you notice anything that indicated to your mind that the lady was assuming her sickness?

"A. No, sir.

"Q. Did you notice anything, at any time that you saw her, from the 29th of January until May, that you could state that would indicate that she was not sick, and that her sickness was not real?

"A. No, I didn't. Her sickness appeared to be real. I have seen her occasionally since the 24th of May at her home."

Other testimony of a like character was permitted. In the recent case of Comstock v. Township of Georgetown, 137 Mich. 558, there is a full discussion of the question involved here. See, also, Cole v. Railway Co., 95 Mich. 80; McKormick v. City of West Bay City, 110 Mich. 270. The physician and nurse had been allowed to testify fully as to the condition of plaintiff, and we think

their conclusion should have been excluded, and the jury allowed to decide from the evidence whether plaintiff was simulating.

4. Did the court err in allowing evidence of exclamations of pain and suffering, uttered long after the injury and after she had decided to bring suit? In Strudgeon v. Village of Sand Beach, 107 Mich. 496, Justice MONTGOMERY, speaking for the court, said:

"Error is assigned on a ruling permitting the witness, John Strudgeon, to testify to exclamations of pain made during the pendency of the action. The general rule is well settled that declarations of present suffering are admissible in evidence, and are not objectionable as hearsay, so long as they do not amount to narrations of past conditions. Johnson v. McKee, 27 Mich. 471; Mayo v. Wright, 63 Mich. 32; Lacas v. Railway Co., 92 Mich. 412; Girard v. City of Kalamazoo, 92 Mich. 610. But it is insisted that a different rule obtains where the exclamations are made during the pendency of the case, or after a controversy has arisen; and defendant's counsel rely upon Grand Rapids, etc., R. Co. v. Huntley, 38 Mich. 537. In that case the testimony which was held inadmissible related to exclamations or statements of suffering made by the plaintiff at the time she was undergoing an examination by a physician, who was called in the expectation that he would give testimony on the trial as to the results of the examination. The court said:

"We cannot think it safe to receive such statements, which are made for the very purpose of getting up testimony, and not under ordinary circumstances. The physicians here were not called in to aid or give medical treatment. They were sent for merely

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*

to enable the plaintiff to prove her case. The whole course of the plaintiff was taken to no other end. She had in her mind just what expressions her cause required. They were, therefore, made under a strong temptation to feign suffering, if dishonest, and a hardly less strong tendency, if honest, to imagine or exaggerate it.'

"Defendant's counsel also cite Laughlin v. Railway Co., 80 Mich. 154. In that case, although the opinion does not fully set out the facts, the record shows that the exclamations of pain were made in the presence of one who had been asked to become a witness for the plaintiff, and who was called to testify to exclamations of pain

made on substantially the same occasion; thus bringing the facts within the Huntley Case. In the same line is Jones v. Village of Portland, 88 Mich. 598 (16 L. R. A. 437). But the court never has laid down the rule that such exclamations would be excluded solely for the reason that they were made after the controversy, and after the suit was commenced."

See, also, Will v. Village of Mendon, 108 Mich. 251; Mott v. Railway Co., 120 Mich. 127. We think the testimony was admissible.

For the reasons stated, we think the case must be reversed. Having reached this conclusion, it is unnecessary to express any opinion as to whether the trial judge erred in declining to grant a new trial.

Judgment is reversed, and new trial ordered.

GRANT, BLAIR, MONTGOMERY, and OSTRANDER, JJ., concurred.

CARNES v. GUELPH PATENT CASK CO.

MASTER AND SERVANT-DEATH OF SERVANT--DANGEROUS EM. PLOYMENT-INSTRUCTIONS-ASSUMPTION OF RISK.

In an action for the death of a servant working on a rollway of logs, caused by the collapse of the pile of logs, evidence examined, and held, that the conclusion that deceased knew how the appliances were made and the manner of doing the work was irresistible and that the direction of a verdict for defendant was proper.

Error to Benzie; Chittenden, J. Submitted April 27, 1905. (Docket No. 101.) Decided July 21, 1905.

Case by Cora A. Carnes, administratrix of the estate of

Lutherford B. Carnes, deceased, against the Guelph Patent Cask Company for the negligent killing of plaintiff's intestate. There was judgment for defendant on a verdict directed by the court, and plaintiff brings error. Affirmed.

Charles A. Withey (D. G. F. Warner, of counsel), for appellant.

Nims, Hoyt, Erwin, Sessions & Vanderwerp, for appellee.

MOORE, C. J. This is a negligence case, brought under the survival act by the plaintiff, as the administratrix of her late husband's estate. The defendant was engaged in running a saw and veneering mill at Wolverine, Mich., and banked its logs for summer use on its grounds near the mill in some 20 rollways, piled about 10 rods long and 14 to 16 feet high. In placing the logs in these rollways, the whole front of the banking ground was carried along at once, or nearly so, in order to give numerous teams a chance to unload as they came from the woods, thus avoiding one waiting for the other. The logs fell from the sleighs upon skids about 30 or 40 feet long lying upon the ground. Beyond these skids were short ones, also upon the ground, for the purpose of enabling the chainman to pass the decking chain under the logs to be put up on top of the rollways.

The work of rolling the logs on the long skids to near the rollways was called "tailing down." When the logs reached the short skids they were left by the tailers, and the chainmen put them in place to be chained and sent up. They were elevated to the top of the rollways by means of other skids standing in an inclined position, with one end on the ground and the other on top of the rollway, the logs being rolled up these inclined skids by means of a block and chain and horse power. The chain at the log end had a crotch, one side of which was passed under each end of the log, the ends of the crotched chain being on top

of the rollway. The log would lie in a loop, so that when the team was put in motion it would be rolled up the skids to the desired point on the rollway. On the day when decedent was killed, one of the top men did not appear, and one of the chainmen took his place, and decedent took the chainman's place.

About 11 o'clock in the forenoon it became necessary to move the inclined skids from the face of the rollway for the purpose of putting more logs at the bottom and in front of the face to strengthen it, there having been evidence of its being weak for some moments before. These inclined skids were green poles some 16 feet long and 6 inches through, with an iron at the top end where they rested on the top log of the rollway in the shape of a "T," the upright bar of the "T" being lengthwise and the top bar crosswise of the skid, with each end of the crosspiece turned down into a sharp spike. These spikes were driven into the logs where the skids rested by the weight of the other logs as they passed over the skids on their way to the top of the rollway, and were for the purpose of holding the skids in place so they would not move sidewise, or "scoot up with the logs." There were two ways of removing the skids from the face of the rollways-one, just to step up with the man's back to the rollway, take the skid on the shoulder and walk away with it; if it was considered dangerous to move the skid, to take a canthook and loosen the ground end so as to test the strength of the face before shouldering it. Almond Jones was chaining at one end of the logs on the forenoon in question, and when the time came to move the inclined skids stepped up to the one on his end of the rollway and took it on his shoulder. At this moment decedent went to the other skid, and was seen by one of the top men to pass under it, and the next instant the rollway went out. One of the top men ran up the deck and escaped, the other went down with the front, but was not hurt. Decedent was caught between the logs of the rollway and those that were lying on the ground in front of it, and so crushed that he died in about two hours.