dertook to get off, and just as she was stepping from the car to the platform the train was suddenly started back, and she was thrown upon the platform, and injured. Counsel for defendant contends that if these questions had been answered in the affirmative by the jury their general verdict could not stand, as such answers would have been a finding in effect that the plaintiff was injured through her own negligence in attempting to step off while the train was in motion; for that if Dr. Stratton and Mr. Lyon got off the front end of the car next back, and then walked towards the rear of the train 25 or 30 feet, and, turning around upon seeing plaintiff fall, they reached her by going forward again only 10 feet, it would be a selfevident proposition that the plaintiff did not attempt to get off and step down while the train was at a stand-still, but rather while it was in motion, and had backed near a car-length.

The court was in error in refusing to submit these special questions to the jury. They are plain and unambiguous. They call for findings upon questions of fact. Testimony was given upon the trial tending to support the theory of the defendant that the plaintiff alighted from the train while it was yet in motion. The special questions point to a direct finding upon that branch of the case. Whether or not the plaintiff did alight while the train was in motion was a question of fact for the jury, and upon which the defendant had the right to a special finding. The questions presented the main issue in the case. While the court in its general charge very fairly presented the defendant's theory upon this branch of the case, yet the statute gives the right to either party upon the trial to present questions of fact for the finding of the jury, and, if the questious propounded are presented in unambiguous form, and relate to the questions of fact in issue, the court has no right to ignore them. Harrison v. Railway Co., 44 N. W. Rep. 1034. The court instructed the jury as follows: "If the jury find that, at the time of the accident, the servants of the defendant brought the train into the station in the usual way, but that, not being able to stop the train at the usual place, it run by a short distance, and that the engineer reversed his engine and caused the train to back up to the proper place at the station without delay, and as quickly as it could be done, and that this was the usual, customary, and proper way of operating the train, then the defendant would not be guilty of negligence for operating the train in that manner, unless that the stop referred to was so made and for such a length of time as to indicate that it was an invitation to passengers to alight, and the movement backwards was made without warning while the plaintiff was in the act of alighting in response to such invitation. If the plaintiff, with the mistaken belief, at the time she arose from her seat for the purpose of leaving the train in question, that it had come to a stop for the purpose of enabling passengers to alight, when in fact the train had not come to a stop, but was running so smoothly and noiselessly that the passen

gers could only distinguish it by comparison with standing objects; that it ran past the usual stopping-place a short distance, when its motion was instantaneously reversed, but so noiselessly and smoothly that the passengers standing in the aisles or on the platform and on the cars could not and did not distinguish the stopping or change in motion; and while in such backward motion the plaintiff, seeing other passengers alighting, or preparing to alight, supposing the train had actually halted for the purpose of enabling the passengers to alight therefrom, attempted to alight therefrom before the train had halted in its backward movement, and was thereby injured,—then the acts of negligence alleged against the defendant in plaintiff's declaration have not been established, and your verdict should be for the defendant."

It is contended further by defendant's counsel that the court was in error in refusing to give the following requests to charge: "The running of a railroad train beyond the usual stopping place at the station before coming to a stand-still is not negligence per se or as a matter of law, nor is the pause after it was brought to a stop for a period necessary to reverse the motion, so as to back it to its usual stopping place, negligence. If the jury find that, at the time of the accident, the servants of the defendant brought the train into the station in the usual way, but that, not being able to stop the train at the usual place, it ran by a short distance, and that the engineer reversed his engine and caused the train to back up to the proper place at the station without delay and as quickly as it could be done, and that this was the usual, customary, and proper way of operating the train, then the defendant would not be guilty of negligence for operating the train in that manner. It is shown in the case, by evidence which is undisputed, that it is the proper and usual way in managing a train, in case it runs past the usual stopping place, to immediately reverse the engine, and bring the train to its proper place, and the jury would not be justified in disregarding said evidence, or in coming to a different conclusion in that regard upon their own ideas of the proper and judicious management of the train. It appears from the testimony that it was dark, or becoming dark, at the time of the accident. That neither the defendant nor the conductor or brakeman knew that the train had run past the usual stopping place at the station, or that it was necessary to back up to get the train in proper place. If the jury find this to be the case, then the defendant is not liable for negligence because the plaintiff alighted and was injured while the train was being backed to its proper position. The plaintiff cannot recover in this action under the declaration in this case, there being a variance between the plaintiff's allegations in her declaration and the proofs offered on the trial. The plaintiff cannot recover in this cause under her declaration, because there is a variance between the allegations of said declaration and the proof offered on the trial, in that the declaration alleges that the plaintiff broke her

leg, whereas the proof is that the injury was to her hip. The plaintiff cannot recover under her declaration in this case, because there is a variance between the allegations of her declaration and the proof offered on the trial, in that it is alleged that, when the plaintiff was about to alight from the train, the defendant caused the train to be suddenly and violently started and moved, and that the plaintiff was thereby, with great force and violence, thrown from and off the train to the ground, whereas there is no evidence in the case to sustain said allegation." The ninth and tenth requests were substantially given as asked. The court stated to the jury: "Railway companies are not insurers of the safety of their passengers. They are only liable when there has been actual negligence of themselves or their servants. The running of a railway train beyond the usual stopping place at the station before coming to a stand-still is not of itself negligence, or not negligence as a matter of law; nor is the pause after it is brought to a stop, for a period necessary to reverse the motion so as to back it to the usual stopping place, negligence, unless the stop is so made and for such a length of time as to indicate that it is an invitation to passengers to alight, and the movement backward is made without warning while they are alighting in response to such invitation." The words in italics, however, were added by the court. It is evident that these requests were extracted from the opinion of Mr. Justice ANDREWS in Taber v. Railroad Co., 71 N. Y. 492. In that case it was further said by the learned justice: "But the fact that the train over-shot the station, rendering it necessary after it came to a stand-still to start it back to the usual stopping place, In connection with the other circumstances, made it a question for the jury whether, in the exercise of reasonable care and prudence, the defendant should not have given notice to passengers desiring to alight at the station that the train had not come to a final stop, and that it would back up." The modification, therefore, made by the trial judge, left the question as one of fact for the jury, whether the circumstances warranted the engineer in backing his train without notice to those alighting. There was no error in this modification. From the plaintiff's testimony, the Jary might well, under the circumstances, say that she was free from negligence in attempting to alight as she did. The defendant was bound to take notice. under the circumstances stated, that the passengers would attempt to alight, and, if the stop was of sufficient length of time to allow it, some of them would be in the act of alighting when the train started back. If, therefore, the stop was of such duration, it would be negligent in starting back without some warning. Wood v. Railroad Co., 49 Mich. 372, 13 N. W. Rep. 779; Stone v. Railway Co., 66 Mich. 77, 33 N. W. Rep. 24. The question was fairly submitted to the jury. In Keating v. Railroad Co., 49 N. Y. 673, it appears that plaintiff attempted to get upon a train at the station at Niagara

| Falls. The train was standing still, partly filled with passengers, as the plaintiff stepped upon the steps of the car. The train, without any signal or notice, and without any examination by those in charge to ascertain whether any one was getting on or off, was started with a violent jerk, which threw plaintiff from the car. It was held that the question of negligence went to the jury. This rule is also laid down in Railroad Co. v. Van Horn, 38 N. J. Law, 133; Railroad Co. v. Kilgore, 32 Pa. St. 292.

The questions raised under the remaining requests relate to the variance between the declaration and the proofs. There is no such variance as claimed, and the question need not be discussed. The court properly refused the requests.

Some question is made upon the charge of the court relative to the measure of damages. But, as it was said by plaintiff's counsel upon the argument here, a reading of that portion of the charge is the only answer necessary to refute the claims of error. The court charged upon that branch of the case as follows: "In this action, which is a single wrongful act, the plaintiff, if she has shown herself entitled to recover, is entitled to recover all damages which she has suffered up to the time of trial, and for all damages which it is reasonably probable that she will sustain in the future, not exceeding, in all, the amount claimed in the declaration, and that has been stated to be $20,000. In estimating the compensatory damages in cases of this character, all the consequences of the injury, future as well as past, are to be taken into consideration, including the bodily pain, which is shown by the proofs to be reasonably certain to have naturally resulted from the injury. The injured party, when entitled to recover, should be awarded compensation for all the injuries, past and prospective. These are intended to include and embrace indemnity for actual nursing and medical expenses; also for loss of power, or loss of capability to perform ordinary labor, or capacity to earn money, and reasonable satisfaction of physical powers. The elements of damages which the jury are entitled to take into account consist of all effects of the injury complained of, consisting of personal inconvenience, the sickness which the plaintiff endured, the loss of time, all bodily and mental suffering, impairment of capacity to earn money, the pecuniary expenses, the disfigurement or permanent annoyance which is liable to be caused by the deformity resulting from the injury; and, in considering what would be a just sum in compensation for the sufferings or injury, the jury are not only at liberty to consider the bodily pain, but the mental suffering, anxiety, suspense, and fright may be treated as elements of the injury for which damages, by way of compensation, should be allowed. And as these last-mentioned elements of damage are, in their very nature, not susceptible of any precise or exact computation, the determination of the amount is committed to the judgment and good sense of the jury. And if you find for the plaintiff, such sum should be awarded

tor by plaintiff and his companion and placed upon the truck. Kelley, still standing upon the third floor, and, seeing that the bales were all removed and the elevator clear, hoisted it for the third load. The bales were placed upon the wagon in two tiers of six each. The last bale of the second load from the elevator had not been put in position, but lay crosswise, with the end nearest plaintiff on a level with his breast, the bale projecting over the side of the wagon, the plaintiff standing with one foot on the wagon and the other on the sill. While plaintiff was standing in this position, and after the elevator had nscended above the door, through which the bales had been taken from the elevator to the truck, plaintiff's companion walked round in front of the horses to the opposite side of the truck to assist in placing the bale in its proper position. The testimony is conflicting as to whether his companion had hold of the bale at the time of the accident; but, about the time that his companion had reached his place to assist him, the bale, for some cause, turned, striking the plaintiff in the breast, and he was either thrown or stepped back, and fell into the shaft, and was Injured. Both plaintiff and his companlon testify that they gave no signal to Kelley, and expected none from him, when the elevator was unloaded. They knew that, as soon as it was unloaded, it would return for another load. It had returned in the usual way, and under precisely the same circumstances as before. Plaintiff and his companion were not strangers to the place, nor to the manner in which the work was done. They knew all the dangers.

The entire situation could be seen at a glance. The elevator was clear, the bales upon the wagon, and plaintiff and his companion outside. What reason had Kelley to suppose that they had any further use for the platform of the elevator in arranging their load, or that an accident was liable to happen in arranging the bales upon the wagon? There is no evidence that Kelley could see them on the wagon, or that he had any intimation that they were having any difficulty. Under this record, no negligence can be imputed to the defendant or its servants. The injury was either the result of the negligence of plaintiff or his companion, or both, or of pure accident. We do not think an authority can be found sustaining liability under such circumstances. Plaintiff's counsel relied upon the case of Dehring v. Comstock, 43 N. W. Rep. 1049; but that case is in no respect similar to this. The plaintiff in that case, a woman, was walking along the sidewalk, when, according to her own testimony, a bale of hay was thrown from a barn-loft onto the sidewalk, without any warning or knowledge upon her part that other bales had just been thrown out. On all the essential points in that case, the testimony was conflicting, while in this there is no dispate on the material facts. The circuit Judge in this case should have charged the jury to find a verdict for defendant. Judgment reversed, and new trial ordered, with costs of both courts. The other justices concurred.

(82 Mich. 385)

STEBBINS et al. v. DEAN et al. (Supreme Court of Michigan. Oct. 10, 1890.) SURVIVAL OF ACTIONS-FRAUD.

An action by the husband's heirs at law against his widow for fraudulently destroying his title-deeds to land and procuring the title in her own name does not survive defendant's death at common law, nor under How. St. Mich. § 7397, providing that "actions for damages done to real or personal estate" shall survive, for the statute includes only those cases in which the injury results from the direct wrongful act of a person upon the property.

Appeal from circuit court, St. Clair county; ARTHUR L. CANFIELD, Judge.

Wm. S. Edwards, for appellants. Mitchell & Avery, for appellees.

GRANT, J. This suit was originally brought by 10 plaintiffs, as the heirs at law of Horace Beers, deceased, against Alice M. Beers, the widow of said Horace, in 1866. The declaration alleges that Horace died in 1859, seised of certain lands therein described, the title-deeds to which have not been recorded; that he left no direct heirs, but left a widow, Alice; that she destroyed the deeds, and afterwards obtained the title in her own name; that some years afterwards she sold the same to one Fish, who bought in good faith, and in ignorance of plaintiffs' rights; that therefore they have no remedy against Fish; and that, by means of these matters, she unlawfully defrauded the said plaintiffs of their legal rights and interests in said lands, and the same became wholly lost to them.-to their damage $5,000. Issue was joined, and suit tried in the circuit court, while the then plaintiffs were all living, resulting in a judgment for the defendant. The case was brought to this court in 1870, reversed for errors in the admission of testimony, and remitted for a new trial. Beers v. Beers, 22 Mich. 42. Two of the present plaintiffs, besides claiming as heirs at law, also claim the rights of other heirs, by virtue of two quitclaim deeds of the lands described, and plaintiff Edwards claims the right to sue, by virtue of three other deeds from four other heirs. These deeds contain no express assignment of the right of action, and the deeds themselves do not operate as such. These deeds were all executed after the alleged fraud on the part of Alice, by which it is claimed that their rights in the land were lost to them. Edwards was attorney for the original plaintiffs, and caused his name to be inserted as plaintiff, December 27, 1888. Edwards had no interest which entitled him to be made a plaintiff. The only interest he had, if any, was the interest his grantors had in the land. The suit was tried again in February, 1890, and verdict directed by the court for the defendants. Between the first and second trials, seven of the original plaintiffs had died, as had also the original defendant, Alice M. Beers, whose name, at the time of her death, was Alice M. Risdon. This is not one of those actions that survive at the common law. 1 Williams, Ex'rs, 669; 3 Bac. Abr. 539; U. S. v. Daniel, 6 How. 11; Jarvis v. Rogers, 15 Mass. 398; Cutting v. Tower, 14 Gray, 183; Leggate v. Moulton, 115 Mass. 552; Cummings v. Bird,

115 Mass. 346; Mellen v. Baldwin, 4 Mass. 480. Our statute in regard to the survival of actions is as follows: "In addition to the actions which survive by the common law, the following shall survive: Actions of replevin and trover; actions for assault and battery, or false imprisonment, or for goods taken or carried away;, and actions for damages done to real or personal estate." How. St. § 7397. The Massachusetts statute is identical in language with our own. Cutting v. Tower and Cummings v. Bird, supra, hold that the statute "was intended to include only those cases where injury is occasioned to property by the direct wrongful act of a party upon the property." We think this construction of the statute correct. It has frequently been held by this court that rights of action which survive, are assignable. Final v. Backus, 18 Mich. 231; Brady v. Whitney, 24 Mich. 154; Grant v. Smith, 26 Mich. 201; Finn v. Corbitt, 36 Mich. 318; Felt v. Reynolds Co., 52 Mich. 606, 18 N. W. Rep. 378. It is also the settled rule in this state that actions for fraud and deceit are not assignable. Dayton v. Fargo, 45 Mich. 153, 7 N. W. Rep. 758; Brush v. Sweet, 38 Mich. 578; Felt v. Reynolds Co., supra. The case at bar is nearly ld. ntical in principle with Brush v. Sweet. In that case the proceeding was in equity by the executors of the grantor nominally, but really for themselves and another, to whom they had assigned an interest in the suit. The suit was against the original grantees to set aside the deeds as fraudulent. The assignment was held void, and the bill dismissed; the court holding that "the right to complain of a fraud is not a marketable commodity." Now, in such cases, the right of assignment and survival to personal representatives are convertible propositions. Zabriskie v. Smith, 13 N. Y. 334. The claim of plaintiffs is based wholly upon the fraud alleged against against the widow of Horace Beers in destroying the deed and procuring the title in herself. It follows that the right of action did not survive, and that the suit abated upon the death of the original defendant. Judgment affirmed. The other justices concurred.

(82 Mich. 513)

KOCH et al. v. LYON.

(Supreme Court of Michigan. Oct. 10, 1890.) REPLEVIN-ASSIGNMENT FOR BENEFIT OF CREDITORS EVIDENCE.

1. Where one purchases goods with the fraudulent intent not to pay for them, and afterwards makes an assignment for the benefit of creditors, the vendor can replevy them without first making a demand upon the assignee.

2. In replevin against an assignee for the benefit of creditors for goods fraudulently purchased by the assignor, it is proper, for the purpose of showing the assignor's bad faith, to prove declarations and admissions made by him subsequent to the assignment, and not in the presence of the assignee, since the latter acts only in a representative capacity, and is not an innocent purchaser.

3. Just before making the assignment, and within a month after the purchase from plaintiffs, the assignor advertised extensively that he had received a large consignment of goods from a cer

tain firm, and that he was selling at 50 cents on the dollar. About the same time, he executed a chattel mortgage to the firm named for a large sum. Held, it was proper to admit the evidence of his clerk that he had received only a trifling consignment from such firm, as tending to show that the goods advertised and sold at such a ruinous discount were those received from plaintiffs.

Error to circuit court, Clinton county; VERNON H. SMITH, Judge.

William H. Castel, for appellants. Fedewa & Lyon, for appellee.

CAHILL, J. The plaintiffs brought replevin for a bill of goods claimed to have been purchased of them by one Visger, with a fraudulent purpose and intention not to pay for them. After purchasing the goods in September and October, 1887, Visger made an assignment November 3d following, under the statute, for the benefit of his creditors, to the defendant, Lyon. On the trial, the plaintiffs satisfied the jury that the goods were obtained by Visger by fraud, and had a verdict in their favor. Defendant brings error.

The main point relied on to reverse the judgment is that the circuit judge charged the jury that no demand was necessary before bringing suit. There was no error in this. Under the case made by the plaintiffs, the defendant's assignor, Visger, obtained possession of these goods by fraud. It was not necessary for the plaintiff to demand the goods of him before bringing replevin to recover them. Trudo v. Anderson, 10 Mich. 357; Carl v. McGonigal, 58 Mich. 567, 25 N. W. Rep. 516; Adams v. Wood, 51 Mich. 411, 16 N. W. Rep. 788.

An assignee takes no better title to the property than the assignor had. If no demand would have been necessary as against Visger before bringing suit, it would not be as against his assignee, who is not a purchaser for value. Brown v. Brabb, 67 Mich. 17, 34 N. W. Rep. 403; Farwell v. Hanchett, 120 Ill. 573, 11 N. E. Rep. 875. Upon the trial, the plaintiffs were allowed to prove, by several witnesses, conversations had with Visger before and after the assignment, the purpose of which was to show his bad faith generally in the treatment of his creditors. This testimony was objected to, and error is assigned on its admission, on the ground that the conversations were not in the presence of the defendant, Lyon, and that he could not be bound by anything that Visger had said after the assignment. This objection was not well taken when, as in this case, the statements related to mat ters that occurred before, or contemporaneous with, the assignment. The defendant was in the case only in a representative capacity. The right of the plaintiffs to recover did not depend upon defendant's conduct, but upon the conduct of Visger. It was competent to prove any act or statement of Visger's tending to show a fraudulent purpose on his part in the purchase of the goods. His statements would not necessarily be conclusive on the assignee, but, in the absence of any showing to the contrary, he must be presumed to desire to support his own character for honesty, and any statement