then this obligation shall be of no effect; otherwise it shall remain in full force and virtue."

The statute (section 10743, 3 Comp. Laws) imposes the duty upon public officers, contracting for work of this character, to require sufficient security by bond for the payment by the contractor and all subcontractors for all labor performed and materials furnished in the erection, repairing or ornamenting of such buildings, works, or improvements. It has been frequently held that an action may be maintained upon such a bond by the parties in whose interest it is required. It is also established that a total failure to require such bond is such a breach of duty as authorizes an action by the party injured against members of the board or municipal body in their individual capacity.

The purpose of this bond to protect the officers against such action is clear. This purpose is not defeated by the fact that the bond is not in the precise form required by section 10744, or by the fact that the obligee in the bond is the city of Alpena, instead of the people of the State of Michigan, as required by the said section. See Board of Education of Detroit v. Grant, 107 Mich. 151 (64 N. W. 1050).

It is contended, however, that this is merely a bond of indemnity, and that it is not conditioned for the payment of the claims for labor and material, and that an action upon the bond can only be had, if at all, after the city or its officers have been damnified by an action; that is, after a recovery has been had against them. But, if this interpretation be given to the condition, it is very doubtful if the bond can be given any effect for the purpose intended. There are in fact three conditions, only two of which need be here referred to: The first that the Murray Company should well and truly keep and perform all terms and conditions of said contract on their part to be kept and performed, and should indemnify and save harmless the said city of Alpena, the city council and

officers thereof, as therein stipulated, and should save harmless the people of the State of Michigan against all claims due from said contractor or from subcontractors under them, which might accrue to any person, firm, or corporation, on account of any labor performed, or materials furnished, etc.

Now, if we turn to the contract, we discover no stipulation for saving harmless the city council and officers, except the provision that the Murray Company shall, at its own proper cost and expense, furnish the labor and material. If these two provisions are read together, therefore, it imports an obligation to save harmless the city council and officers thereof by furnishing at their own proper cost and expense the labor and material required. So construed, we think this provision falls properly within the reasoning adopted by this court in the recent case of Stoddard v. Hibbler, 156 Mich. 335 (120 N. W. 787). In that case we held that an obligation to perform a building contract according to its terms and conditions imported an obligation, not only to furnish the labor and material, but to pay for the same. It is true that in that case the failure to pay for the material and labor resulted in a mechanic's lien in favor of the laborer and materialmen. But it was strongly urged that the condition to perform the contract on the part of the principal did not import an obligation to pay. In that respect the case is like the present, and, when it is seen that the only method stipulated in the contract by which the city council and officers are to be saved harmless against claims of laborers and materialmen is by the Murray Company furnishing the same at their own cost and expense, the case cited is authority that the bond covers such an obligation. The words, "furnish at his own cost and expense," may well be held to have the same import as was given them in the case cited. See, also, Korsmeyer Plumbing & Heating Co. v. McClay, 43 Neb. 649 (62 N. W. 50), and Morton v. Harvey, 57 Neb. 304 (77 N. W. 808).

The circuit judge was of the opinion that an action could be maintained upon this bond for the use and benefit of the materialmen. In this conclusion we concur, and the judgment in favor of the plaintiff will be affirmed. BLAIR, C. J., and GRANT, MCALVAY, and BROOKE, JJ., concurred.

HULL v. DETROIT UNITED RAILWAY.

1. NEGLIGENCE-STREET RAILWAYS-CARRIERS OF PASSENGERS BOARDING CARS.

Starting a car while the passenger stands on the running board, assisting another passenger to board the car, constitutes actionable negligence for a resulting injury.

2. SAME-PROXIMATE Cause-DAMAGES QUESTION OF FACT. Evidence that the plaintiff was injured on the back of his hand sufficiently to start the blood; that a short time after the injury he got his hand in some thistles and that blood poisoning developed; that his physician considered the result to have followed from a blow upon the back of the hand, raises a question of fact for the jury, though the defendant's expert witness testified that the thistles might have caused blood poisoning.

3. TRIAL INSTRUCTIONS TO JURY.

While an instruction by the court that one physician said, “in his judgment the injuries were due to an accident received in a street car" was not strictly accurate, it could not be said to constitute reversible error, where the testimony of the physician tended to establish such a conclusion.

4. EXPERT AND OPINION EVIDENCE-WEIGHT.

It is not error to instruct the jury that opinion evidence is not testimony as to facts, and is entitled to such weight as the jury may, in its sound judgment and discretion, think it should have, where the court further charged that the jury should accept the opinion which seemed to them the more reasonable under all the circumstances.

Submitted June 11,

Error to Wayne; Mandell, J. 1909. (Docket No. 14.) Decided December 10, 1909.

Case by Robert E. Hull against the Detroit United Railway for personal injuries. A judgment for plaintiff is reviewed by defendant on writ of error. Affirmed.

Brennan, Donnelly & Van De Mark, for appellant. Lehman, Riggs & Lehman, for appellee.

MONTGOMERY, J. The plaintiff, a man 76 years of age, brought this suit to recover damages which are claimed to have been the result of an injury received while boarding a street car belonging to the defendant company, some time in the month of July, 1904. The plaintiff's claim is that, as he was boarding the car, having helped his wife and grandson on the running board, and stepped on the running board himself, the car started and threw him down. He was not thrown to the pavement, but a Mr. Boring who was with him, and had not yet got on the car, caught him and kept him from being thrown off the running board. Plaintiff's testimony tended to show that his right knee was skinned, a place about as large as a half dollar, and that his right shin and right hand were also skinned. He testified that his right hand was skinned from the knuckles down to the wrist; that "it was roughened up and bled a little. The skin was not broken to make the blood run, but the blood oozed out a little."

The evidence shows that a week or two after the street car accident the plaintiff was pulling a hill of potatoes in the garden, and started to use his right hand for that purpose and got Canadian thistles in his hand, and one of the most important questions in the case is whether the results hereinafter stated were due to the injury received at the hands of the defendant, or were due to the Canadian thistles. The testimony shows that when his hand began to swell, he poulticed it, and gave it treatment for a con

siderable time, but got no relief. It was a year or more later that he consulted Dr. Mulheron, and was treated by him from time to time, and finally, in the spring of 1906, was compelled to undergo an operation and submitted to the loss of his hand. The case was submitted to a jury, and a verdict found for the plaintiff of $1,500. The contention is made in this court that this verdict is so clearly against the weight of evidence as to call for a reversal, and it is further contended that there is but the barest scintilla of testimony to support the plaintiff's claims.

Upon the question of whether the plaintiff suffered an injury at the hands of the defendant, the testimony is very clear. The real question in doubt is as to whether the subsequent suffering which he endured, resulting in the loss of his arm, was due to that injury, or is traceable to the contact with the Canadian thistles a few days later. Upon this question the jury were aided by the testimony of two able and competent physicians. The testimony of Dr. Mulheron, who saw the hand, was that he discovered in the palm of the hand nothing to indicate any injury; that the swelling was on the back of the hand, and that the injury was such a one as would result from a blow such as the plaintiff claims to have received, and that the plaintiff developed a disease called periostitis, which means an inflammation of the periosteum. Dr. Spitzley, called for the defendant, testified that this periostitis might have been occasioned by getting Canadian thistles in the palm of the hand, and that the swelling on the back of the hand would not necessarily negative this theory. Dr. Spitzley also testified that an injury such as the plaintiff described might have resulted in an affection which would develop periostitis.

It is urged that the testimony left the jury to guess as to the cause of the injury. We think it is not open to this objection in a legal sense. It is true that the jury had to determine which was the more probable theory of the two, but, in view of the testimony of Dr. Mulheron that he, even in the absence of knowledge of the previous in