Howard & Roos for complainant.

John Rea, in person, for defendant.

COOLEY, C. J. This is a suit for divorce. It appears from the record that the husband first began suit, charging his wife with habitual drunkenness. She thereupon filed her bill, in which the complaint was extreme cruelty. The two suits proceeded together, and the evidence was taken in both. The circuit judge dismissed both bills. The husband submitted to the decree against him, and his case is therefore finally determined. The wife appealed her suit.

The record is an extraordinary one. The careful and conscientious circuit judge says, in an opinion filed by him: "I cannot pass over in silence, and do my duty, the unlawyer-like wrangling which took place between counsel during the taking of the testimony in this case. This record is full of unprofessional statements taken down by the commissioner at the request of counsel, and of objections which are not only burdensome and expensive to the litigants, but are scandalous in the extreme. The commissioner should have declined to have recorded the same. It must be further added that the proofs as taken are very unnecessarily prolix and cumulative, and would in any other than a divorce case in which one of the parties has no property, be met with a decree charging the party or parties responsible therefor with the costs of taking the same." This is a very moderate statement. The record is at least five times as voluminous as was needful for bringing out the material facts.

The circuit judge adds that "a wrong practice was also followed in the taking of proofs with a view to a decree for permanent alimony. No such proofs should have been taken until it was determined by the court whether or not a divorce should be decreed; and moreover the proofs as taken upon this branch of the case are specially cumulative, and the cross-examination much too lengthy." In this also he is quite right.

On the merits we are inclined, though with considerable

hesitation, to hold that Mrs. Rea should have the divorce prayed for. Her case is not a strong one, and if we could indulge the hope, as the circuit judge did, that the parties might still compromise their difficulties, we might in our discretion affirm his action throughout. But such a compromise is not to be looked for.

The question of alimony remains. The cost of this needlessly expensive litigation has been borne by the husband, and the greater part of the property he had when it began is now gone. The record and the files in the case do not warrant us in finding him worth much over five thousand dollars, and this is in real estate which is incumbered to more than half its value. What he has would be sacrificed if he were compelled to sell it now to raise money. The property was accumulated by the joint labor of both, and perhaps the claim of one to it is as good as that of the other; but if Mr. Rea is now required to pay two hundred and fifty dollars to counsel in this Court, and one thousand dollars for alimony, it is as much as, under the circumstances, should be demanded. This is a small sum for the wife, but it has necessarily been made small because of the exhaustion of the husband's means.

CAMPBELL and CHAMPLIN, JJ. concurred. SHERWOOD, J. did not sit in this case.

JOHN S. COY v. HENRY STINER.

Promissory note.

1. An agent for the collection of a promissory note indorsed in blank can sue on it in his own name after paying over to his principal the amount due upon it.

2. The maker of a note can authorize another to sign his name to it.

Error to Tuscola.

(Wixson, J.) Jan. 25.-March 6.

ASSUMPSIT. Defendant brings error.

Affirmed.

Dozer & Dozer and Tarsney & Weadock for appellant.

Black & Edson for appellee.

CHAMPLIN, J. The plaintiff is a banker, residing at Unionville, Michigan, and brought suit against the defendant upon a note sent originally to him for collection from a bank in Detroit, and which he failed to protest, and on account thereof forwarded the money to the bank in Detroit, and brought suit in his own name against defendant as maker. The note was indorsed by the payees in blank. The defendant claimed that he was not liable upon the note-first, because the plaintiff never had any title to the same; and second, because there never was any authority given to Frank Stiner to sign defendant's name to the note.

There was testimony introduced before the jury upon these issues, and the questions of fact were found by the jury adversely to the defendant's positions.

The charge of the court was lucid, and clearly stated the propositions of law arising in the case.

There is no error in the record and

The judgment is affirmed.

The other Justices concurred.

SAMUEL J. DICKINSON V. THE PORT HURON & NORTH-
WESTERN RAILWAY COMPANY.

Railway negligence-Structures alongside the track.

1. It is negligence in a railroad company to allow coal bins so close to its track that persons upon an excursion car cannot safely stand, while passing them, upon the running board that stretches along the side of such a car.

90 608

2. A passenger on an excursion train was allowed to leave one car and go into another to sell tickets. He had left his wife on the first car, which was an open one, the seats being reached from an outside run. ning board instead of an inside aisle. The running board was used by the conductor and trainmen in passing from point to point. Held that it was not necessarily negligent for the passenger to suppose that he also could use it safely, and try to do so in returning to the car where his wife was. And supposing it to be safe, as it should be, it was not negligent to omit to look out for structures so close alongside the track as to endanger persons who had to be on the running board while passing them.

Error to Saginaw. (Gage, J.) Jan. 25.-March 6.

CASE. Defendant brings error.

Affirmed.

Wisner & Draper, for appellant, cited Todd v. Old Colony &c., R. R. 3 Allen 18; L. 8. & M. S. Ry. v. Miller 25 Mich. 274; Downey v. Hendrie 46 Mich. 498; Kelly v. Hendrie 26 Mich. 255; Mich. Cent. R. R. v. Coleman 28 Mich. 440; Phillips v. R. & S. R. R. Co. 49 N. Y. 179.

Edget & Brooks for appellee. A railroad company that has running boards on the sides of its cars is bound to guard against any accident that might be reasonably anticipated in view of their use: Cooley on Torts 672; Cleveland v. Steamboat Co. 68 N. Y. 306; a passenger has a right to assume that coal bins would not have been built so near the tracks as to injure any one on the running board: 2 Thomp. Neg. 1173; Harpell v. Curtis 1 E. D. Smith 78; Brown v. Lynn 31 Penn. St. 510.

COOLEY, C. J. This suit is brought to recover damages for a personal injury sustained by the plaintiff while being carried on the cars of defendant as a passenger.

The injury was received August 9, 1883. On that day, by arrangement with defendant, an organization at East Saginaw, known as the "Ladies' Christian Temperance Union," gave an excursion from East Saginaw to Port Huron and back. Tickets for the excursion were placed in the hands of a committee of ladies, and they sold them for one dollar and fifty cents each, and accounted to the defendant for one dollar each. On the morning of the day named plaintiff and his wife took the cars with the excursion party. The train

was the regular passenger train of closed cars, with two open excursion or observation cars attached. These last were constructed with seats running across the cars, and without any aisle from end to end. Along one side was a step or running board about nine inches in width, upon which passengers stepped in entering and leaving the car, and along which the conductor walked in taking up tickets. There were iron rails by each seat for one to hold by who was upon this step. The seat which the plaintiff and his wife took was upon the first of these open cars. The closed cars were be

fore it.

After the plaintiff had taken his seat, he got off again at the request of the ladies to sell tickets for them. As the train was about to start, several persons came to take the cars who were without tickets, and the conductor told the plaintiff to let them get aboard the train and sell them tickets afterwards. They went into one of the closed cars, and plaintiff followed them and sold tickets to them. While he was doing this the train started. The plaintiff then left the car where they were, and from its rear platform passed to the front platform of the car on which he had left his wife, and then along the side step towards the rear of the car. The train was then moving with considerable speed. As the plaintiff passed from seat to seat, he inquired of the passengers if they had tickets. A brakeman was then passing along and closing blinds on the side of the car for the protection of passengers. These blinds, when closed, came up to the shoulders of the seated passengers. The brakeman passed the plaintiff by swinging around him when he was near the, middle of the car, and as he did so, said to him, "You want to look out a little for the switch." Very soon the plaintiff, as he was moving, heard the brakeman halloo and motion with his hand towards the car. The plaintiff says. "I took him for my guide and saw the bins, and I knew there was no time to fool away, and I drew myself up to the car as he was doing, taking him for my guide, and then he threw one hand back, and I had got to get back and jump myself, and I made a lunge and grabbed the last iron, and drew my head and shoulders around the end,