ments of both of said parties, we do hereby divide and apportion said fence between said parties as follows: "The said William Ackerman, his heirs and assigns shall forever keep and maintain the 60 rods running south from the northeast corner of the southeast quarter of section 2, and the east 24 rods of the 64 rod strip running east and west, and the said Albert Vincent, his heirs and assigns, shall forever keep and maintain the balance or remainder of the east and west line of fence, and all of the 88 rods strip running north and south. "In witness whereof we have hereunto set our hands and seals this 14th day of September, A. D. 1904. "W. P. JOHNSON, "WILLIAM MAUDLIN, "Fence Viewers of the Township of Vernon." A copy of this paper was served on Mr. Ackerman some time in the month of December, 1904. Mr. Vincent left the original determination with the clerk of the township to have it recorded. It was recorded in a book kept for that purpose by the township clerk, but not copied, and remained in his possession and was produced in court by his successor in office. Defendant Ackerman did not keep in repair the 60 rods of fence running south from the northeast corner of the southeast quarter of section 2, and on the 5th of May, 1905, plaintiff's cattle escaped through said fence onto defendant's property, and were by him impounded. Plaintiff thereupon replevied the cattle, and upon the trial the circuit judge refused to admit the determination of the fence viewers, and directed a verdict for the defendant, fixing the amount of damages at $12 and costs to be taxed; the defendant having waived return of the property. BROOKE, J. (after stating the facts). The defendant at the trial claimed that the proceedings of the fence viewers as above set forth were incompetent as evidence, first, because the determination did not fix the time within which the fence should be built; second, because it had not been properly recorded; and, third, because the statute under which the proceeding was had is unconstitutional. The statute in question is as follows: "When any controversy shall arise about the rights of the respective occupants, in partition fences, or their obligation to maintain the same, either party may apply to two or more fence viewers of the township where the lands lie, who, after due notice to each party, may in writing assign to each his share thereof, and direct the time within which each party shall erect or repair his share of the fence in the manner before provided; which assignment, being recorded in the township clerk's office, shall be binding upon the parties, and upon all the succeeding occupants of the lands; and they shall be obliged always thereafter to maintain their respective portions of said fence." 1 Comp. Laws, § 2419. The determination of the fence viewers, it will be noticed, was silent as to the time within which each of the interested parties should erect or repair his share of the fence. We do not think this is a fatal objection to the determination. It will be noticed that the statute upon this point is not mandatory, and the failure of the fence viewers to specify the time within which parties should erect their respective shares of the fence will not render nugatory their action in dividing the fence and assigning to each of the parties his share thereof. Upon making their findings and giving due notice thereof to the parties, it thereupon became the duty of each to proceed within a reasonable time to comply with the determination of the fence viewers. As to the second objection raised by the defendant, we are of opinion that inasmuch as he had actual notice of the contents of the determination of the fence viewers, it having been served upon him personally several months before the cattle were distrained, he is not in a position to raise the question. In any event, the original paper was properly filed for record with the township clerk, and the index was made in the record provided for chattel mortgages, bills of sale, and other miscellaneous papers. Under the circumstances, this was a sufficient record under the statute. See Farrington v. Bristol, 35 Mich. 28. The constitutionality of the act under which the proceeding was taken has been passed upon contrary to defendant's contention in Gilson v. Munson, 114 Mich. 671. Reversed, and a new trial ordered. GRANT, MONTGOMERY, HOOKER, and MOORE, JJ., concurred. GERHARD v. FORD MOTOR CO. 1. EVIDENCE-CONCLUSIONS-CROSS-EXAMINATION. In an action for personal injuries, the exclusion of plaintiff's answer, on cross-examination, to a question calling for a conclusion as to the cause of the injury, when counsel was allowed to further cross-examine the witness as to the details of the occurrence, was not error. 2. HIGHWAYS AND STREETS-PERSONAL INJURIES - NEGLIGENCE — AUTOMOBILES. Plaintiff, a “jumper” on a delivery wagon, was injured by being struck by an automobile. The evidence on the part of plaintiff tended to show that before jumping off the left side of the wagon he looked back and saw no automobile coming; that his horse was walking and he jumped alighting about a foot and a half from the side of the front wheels, and took some parcels from the wagon and was walking slowly by the side of the wagon waiting for it to pass so that he could go back of it to the sidewalk, when he was struck in the back and left side by an automobile; that the machine knocked him to the pavement and dragged him 66 feet and ran 100 feet farther before it was stopped; that the driver of the machine had a clear space of 30 feet to the left of plaintiff's wagon in which to pass. The driver of the automobile testi fied that he saw the plaintiff's rig, knew what it was, and knew the character of the business in which it was engaged. Held, that the question of the negligence of the parties was properly submitted to the jury.1 Error to Wayne; Hosmer, J. Submitted January 21, 1909. (Docket No. 159.) Decided March 3, 1909. Case by Clements Gerhard, by next friend, against the Ford Motor Company for personal injuries. There was judgment for plaintiff, and defendant brings error. Affirmed. Fred L. Vandeveer, for appellant. Lillis & Hymers (Pelton & McGee and George A. Safford, of counsel), for appellee. MOORE, J. The plaintiff was injured on September 10, 1906, at about 5:30 p. m. He was two or three months over the age of 14. The accident occurred on Piquette avenue, which runs at right angles to Woodward avenue. Plaintiff was employed as a "jumper" on a delivery wagon, and in the performance of his duties it was necessary for him to follow the instructions of his driver and deliver packages to the proper addresses. The first street east of Woodward avenue, and parallel thereto, is John R., and next east of John R. is Brush street. The delivery wagon approached Piquette avenue from the south on John R. street. Upon reaching Piquette avenue, the driver turned his horse to the right on Piquette avenue, and drove east toward Brush street. An automobile controlled by one of the employés of the defendant came to Piquette avenue from Woodward avenue coming from the south. When Piquette avenue was reached, the driver turned his automobile to the right, going in an easterly direction. When the wagon was a few feet from 'As to duty of pedestrian to look out for automobile cars, see note to Hennessey v. Taylor (Mass.), 3 L. R. A. (N. S.) 345. As to law governing automobiles generally, see note to Christy v. Elliott (Ilí.), 1 L. R. A. (N. S.) 215. Brush street, the automobile attempted to pass on the north side of it, and struck the boy, who was badly injured. The case was tried before a jury who rendered a verdict for plaintiff. A motion was made for a new trial for the following reasons: (1) That said verdict was against the clear weight of the evidence offered and received at the trial of the said cause. (2) That the evidence establishes that the plaintiff was guilty of negligence, and that a verdict of no cause of action for the defendant should have been directed. (3) Because of the refusal of the court to peremptorily give those instructions of the defendant which would have ended the case, and not permitted the same to have gone to the jury for its consideration and deliberations. The court overruled the motion, giving his reasons therefor in writing. The case is brought here by writ of error. There are eleven assignments of error grouped by counsel under three subdivisions. The first of these, as stated by counsel, is as follows: "The following question was asked plaintiff: 'And this accident happened simply because you were in a real hurry to get the deliveries made and you jumped down off the wagon, didn't you?' Counsel feels as though it should have been permitted a good deal of latitude in the cross-examination of the plaintiff, especially in view of the testimony that had preceded this question." The question should be taken in connection with what preceded and what followed it. The record shows as follows: "Q. Now, as a matter of fact, Clements, you were in a good deal of a hurry that night to make this delivery up on Brush because it was getting late, wasn't it? "A. Yes, sir. "Q. It was getting late, about half past 5, wasn't it? "A. Yes, sir. "Q. And the quicker you got your deliveries made the quicker you got home? "A. Yes, sir. |