timony bearing on this question, and which would justify the trial court in leaving it to the jury; but we have failed to find any. The defendant offered no proof, and the plaintiff's proofs are silent as to it. In view of this state of the record, we are of the opinion that the trial court should have granted defendant's motion.

The judgment is reversed, and a new trial ordered. MOORE, C. J., and MCALVAY, BROOKE, and OSTRAN DER, JJ., concurred.

In re ADAMS.

ADAMS v. RUSSELL.

PARDON-HABEAS CORPUS-PAROLE-BOARD OF PARDONS. The advisory board in the matter of pardons, having no author. ity under the law to grant a parole to a prisoner whose minimum term has not expired, to take effect after the date he should become eligible to parole, may properly rescind its action in so granting parole prior to the expiration of the prisoner's minimum term of sentence. Act No. 184, Pub. Acts 1905; Act No. 134, Pub. Acts 1909.

Habeas corpus and certiorari by John A. Adams against James Russell, warden of the State prison at Marquette, and others. Submitted April 2, 1912. (Calendar No. 25,057.) Writ quashed April 15, 1912.

Fred A. Baker, for petitioner.

Franz C. Kuhn, Attorney General (George S. Law,

of counsel), for respondents.

BLAIR, J. May 3, 1909, petitioner was convicted in the recorder's court of the city of Detroit of the crime of seduction, and upon the same day was sentenced by Judge Connolly to imprisonment in the Marquette prison for the minimum term of 2 years and the maximum term of 5 years; the court recommending that he serve the maximum term. The sentence was imposed under Act No. 184 of the Public Acts of 1905, providing for indeterminate sentences. May 15, 1910, petitioner was released from said prison by an order of this court made May 13, 1910, admitting him to bail. August 20, 1910, petitioner was returned to prison; this court having in the meantime affirmed his conviction and commanding said warden "to receive and safely keep said defendant for a period equivalent to said unexpired portion of said sentence." December 5, 1911, the advisory board in the matter of pardons acted upon an application for parole which had been made by petitioner under the indeterminate sentence law, and voted to grant him a parole for the period of two months, the parole not to take effect, however, until the 29th day of January, 1912, and upon the same day a written parole, signed by the board, was handed to the warden of the prison. December 14, 1911, the advisory board in the matter of pardons, by resolution, rescinded the previous order granting a parole to petitioner, and wrote the warden to return the written parole to the office of the board. December 17, 1911, the warden, in compliance with the request of the board, returned the parole to the office of the board, where it now remains. March 5, 1912, Adams applied to the Supreme Court for a writ of habeas corpus. The court granted a writ of certiorari under the statute (section 9889) to inquire into the cause of detention, and also a common-law writ of certiorari to bring the record of the advisory board in the matter of pardons into the case before the Supreme Court.

Counsel for the petitioner contends that the advisory board of pardons has no jurisdiction or power under the statute to vacate a parole once granted by it. The power

to vacate a parole by the recommitment of the prisoner is vested in the warden, subject to the approval of the advisory board. That board can disapprove of the reimprisonment of a paroled convict; but it cannot itself vacate the parole, or order the convict to be recommitted. It is substantially conceded by the attorney general that, if the advisory board had jurisdiction and authority to grant the parole at the time it acted, it could not revoke it upon the facts appearing in this case; but he argues that since at the time the board acted upon the application the minimum term of the prisoner had not expired, and would not expire until the 29th day of January, 1912, the board had no jurisdiction to grant the parole.

Section 5 of Act No. 184, Pub. Acts 1905, provides that

"Prisoners, under the provisions of this act, shall be eligible to parole only after the expiration of their minimum term of imprisonment, and prisoners who have been twice previously convicted of a felony shall not be eligible to parole."

Section 6 of the act, as amended in 1909, provides that applications shall be made upon uniform blanks to be furnished the wardens, etc., and that

* * *

"It shall be the duty of the warden or superintendent, when requested by a prisoner whose minimum term of imprisonment has expired and is eligible to a parole, to furnish such prisoner with a blank application for parole. Upon receipt of such application and recommendation the governor or the advisory board in the matter of pardons shall make such investigation in the matter as they may deem advisable," etc. Act No. 134, Pub. Acts 1909.

The prisoner is not entitled to parole as a matter of right, and whether the board would grant a parole would naturally depend, to a large extent, upon his conduct during the minimum term and the recommendation of the warden required to be indorsed upon his application. It is obvious that, if the board can grant paroles in advance

of the expiration of the minimum term, the conduct of the prisoner may so change after the granting thereof as would make it highly improper to grant him a parole after the expiration of such minimum term. We are satisfied that it was not the intention of the legislature to confer any such power upon the board, and that the provisions quoted clearly negative such intention. We hold, therefore, that the action of the board conferred no rights upon the petitioner, and its rescission of its action worked no injury to him.

The writ is quashed, and the prisoner remanded. ·

MOORE, C. J., and STEERE, MCÁLVAY, BROOKE, STONE, and OSTRANDER, JJ., concurred. BIRD, J., did not sit.

BAKER v. MICHIGAN CENTRAL RAILROAD CO.

MASTER AND SERVANT-RAILROADS -- CONTRACTS—ASSUMPTION OF RISK.

Evidence that defendant railroad company, prior to the time decedent entered its employ as switchman, promulgated a schedule of wages and of certain rules, among which it was provided that all hose and chains on passenger trains should be cut by carmen instead of switchmen; that defendant's superior servant ordered decedent to cut the hose and chains on a train of which he composed part of the crew, and, being obliged to go between the cars, was caught and killed by the engine which coupled on to the train as he was so engaged, authorized a judgment for plaintiff on the theory that defendant violated a contract duty which decedent had a right to rely on, and decedent did not assume the risk. STEERE, 169 MICH.-89.

BROOKE, STONE, and OSTRANDER, JJ., dissenting, on the ground that decedent assumed the risk and that the negligence of his co-employés was the proximate cause of his death.

Error to Crawford; Sharpe, J. Submitted June 10, 1910. (Docket No. 40.) Decided May 3, 1912. Rehearing denied July 22, 1912.

Case by Lucile E. Baker, administratrix of the estate of Alfred Baker, deceased, against the Michigan Central Railroad Company for the unlawful killing of plaintiff's decedent. Judgment for plaintiff. Defendant brings

Watts S. Humphrey, for appellant.
De Vere Hall, for appellee.

MCALVAY, J. Plaintiff, as administratrix, brought suit against defendant to recover damages caused by an injury to her husband, which resulted in his death, and recovered a judgment.

Plaintiff's decedent entered into the employment of defendant company as a switchman July 9, 1907, and was employed as such during all the time thereafter until the date of his injury on January 1, 1908, except for about one month, when he was working as a switchman for defendant at Grayling. At the time of his injury, he was at work with a switching crew in the yard of defendant at Bay City, West Side. The train upon which the switching was being done at the time was a regular daily passenger train, known as the Midland train, leaving West Bay City in the morning and running to Midland, about 19 miles, then returning, then going to Vassar, 22 miles, and returning from Vassar to West Bay City. This made one round trip. Two trips were made by this train every day.

Plaintiff claimed that there was a schedule or printed contract of hiring in force at the time and entered into between decedent as a switchman and defendant at the time