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any defects. It was not doubted but that the grant was legal, and it will not be contended by any one that mere matter of forfeiture could be investigated in this action. A direct proceeding would be indispensable. Harrell v. Ellsworth 17 Ala. 576; New Albany, etc., R. Co. v. Huff 19 Ind. 315; Mackall v. Chesapeake, etc., Canal Co. 94 U. S. 308; Thompson v. R. R. Co. 3 Sandf. Ch. 625. The franchise is property, and it possesses the valuable incidents of other species of property (Conway v. Taylor's Ex'r 1 Black 603; Lippencott v. Allander 27 Iowa 460) and subject to that power of control by the government which results from sovereign duty in reference to matters of a public nature, and subject to such conditions as are lawfully imposed, it may be passed from the original grantee to others. Lippencott v. Allander supra; Bowman's Devisees and Burnley v. Wathen 2 McLean 376; Peter v. Kendal 6 B. & C. 703; Felton v. Deall 22 Vt. 170; Ladd v. Chotard 1 Minor (Ala.) 366; Biggs v. Ferrell 12 Iredell 1; Lewis v. Intendant and Town Council of Gainesville 7 Ala. 85; Benson v. Mayor, etc. of N. Y. 10 Barb. 223; Willoughby v. Horridge 12 C. B. 742: 16 E. L. & E. 437; Pim v. Curell 6 M. & W. 234; Bridgland v. Shapter 5 M. & W. 375.

There is no suggestion of the existence of anything to hinder a transfer by the first proprietor of this ferry, nor prevent subsequent proprietors from leasing it, and as before. stated, the public authorities have manifested no disapproval of the changes which seem to have taken place. So far as appears, the right was in being and in the lawful enjoyment of the decedent's employer when the injury was done.

But were the facts sufficient to raise a question against the regularity of the steps taken to confer the franchise, it cannot be taken for granted that this defendant would be entitled to make use of the circumstance as matter of defense against the present cause of action. The attempt would encounter strong objections. Peter v. Kendal supra; Conner v. Paxson 1 Blackf. 168. No decision of the question, however, is now needful.

That the defendant was guilty of negligence seems not to

have been questioned. The evidence tended to show that he knew very well the character of the ferry and its position, and that having that knowledge he moved the tug after dark directly across the ferry track without previous warning by light or whistle. True, there was evidence to the effect that at least one former ferryman had always kept the rope down at night, unless he indicated by his lantern to tugs and other vessels that it was up; so that those directing craft might understand from the absence of such light that the rope was down, and no one claimed that any ferry light was shown on the occasion in question.

The fact remains, however, that under positive provisions it was the absolute duty of defendant to make a seasonable display of certain lights, and a neglect of this duty cannot be answered by saying that he relied on the continuance of a former voluntary practice by some ferrymen to show a light whenever the rope was up, and under which practice he was accustomed to disregard his duty and trust altogether to the spontaneous precaution of the ferrymen. How far his reliance on the practice mentioned, if he did rely upon it, ought to absolve him from the severe moral blame which attaches to reckless, wanton or cruel inattention to duty, it is not worth while to speculate about. The law made it incumbent on him, and without any condition, to exhibit lights, and it gave him no dispensing power. Had this been done, the decedent, as the jury may be led to find on the evidence, would have had such notice of the position and approach of the tug as would have enabled him without haste and without injury to drop the rope. Of course the connection of the defendant's negligence with what happened to decedent would be for the jury. Willy v. Mulledy 78 N. Y. 310.

Upon the other branch of the case but little need be said. It was part of the plaintiff's case to satisfy the jury that decedent, under the circumstances, was in the exercise of due care and was not, consequently, in part the producer of what happened. Such is the established rule in this State. Drew v. Steamboat Chesapeake 2 Doug. (Mich.) 33; Lake Shore etc. R. R. Co. v. Miller 25 Mich. 274; Cooley on Torts, 673

But it was not required that this should be made out by direct evidence. If the occurrence itself and the surrounding circumstances, after due allowance for conflicting con. siderations, were capable of breeding an inference of it, and a jury might draw it in the proper exercise of their function, it was sufficient. Bridges v. Directors etc., of N. London R'y Co. L. R. 7 H. L. 213: 9 Eng. 165; Cordell v. N. Y. C. & H. R. R. R. Co. 75 N. Y. 330. In this aspect of the case the circumstances were not of that certain and decisive character, which, without discussion, would at once conduct many different minds to the same conclusion.

It is impossible to say what view under proper instructions the jury would have taken, and the controversy appears to be of that class where investigation falls under the province of the usual triers of ambiguous facts in actions at common law.

The author referred to on the law of Torts observes: "If the case is such that reasonable men, unaffected by bias or prejudice, would be agreed concerning the presence or absence of due care, the judge would be quite justified in saying that the law deduced the conclusion accordingly. If the facts are not ambiguous, and there is no room for two honest and apparently reasonable conclusions, then the judge should not be compelled to submit the question to the jury as one in dispute. On the contrary he should say to them. 'In the judgment of the law this conduct was negligent,' or, as the case might be, 'There is nothing in the evidence here which tends to show a want of due care.' In either case he draws the conclusion of negligence or the want of it as one of law. * * But in the great majority of cases the question. of negligence on any given state of facts must be one of fact. And in no case where the facts are in dispute can the judge take the case from the jury and decide against negligence, as matter of law, unless there is a want of evidence fairly tending to establish the negligence which is counted on." Cooley on Torts, 670. And "where the essential fact in a case is whether contributory negligence did or did not exist, and this depends upon the credibility of witnesses, or inferences from facts and circumstances about which honest, intelligent

and impartial men might differ, such a case should be submitted to the jury." Swoboda v. Ward 40 Mich. 420; and see Bridges v. Directors, etc., of N. L. R'y Co. supra; Robson v. N. E. R'y Co. 2 Q. B. Div. 85: 19 Eng. 228; Directors, etc., Dublin, Wicklow & Wexford R'y Co. v. Slattery 3 Appeal Cases, H. of L. 1155: 24 Eng. 713; Turner v. Walker L. R. 2 Q. B. 301; Lambert v. Staten Island R. R. Co. 78 N. Y. 104; The Pennsylvania 19 Wall. 125; The Wanata 95 U. S. 600; Stackus v. N. Y. C. & H. R. R. R. Co. 79 N. Y. 464.

We think the jury should have been charged with the facts. It is not expedient, and indeed could not be safe, to anticipate the showing to be made hereafter, and propose in advance a specific rule for the jury on this question of contributory negligence. In all these cases, the instructions, to be exempt from all tendency to confuse or mislead, and at the same time to afford that judicial assistance which the trial judge in contemplation of law ought to give, should not consist of a string of abstractions or vague generalities, but be framed with careful reference to the exact state of facts adduced, and it is not unreasonable to suppose that another trial of this action may show such deviations or differences. from the present record, though actually very slight, as would call for modified advice and directions to the jury.

On the same ground of prudence, it is unadvisable to discuss the evidence in the present record bearing on the question of contributory negligence. It might be made use of against the duty of the next jury.

The judgment must be reversed with costs, and a new trial granted.

The other Justices concurred.

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JULIET TAYLOR V. THE LAKE SHORE & MICHIGAN SOUTHERN
RAILROAD COMPANY.

Municipal ordinances—Privaté actions do not lie for breach of public duties. An ordinance requiring all persons to keep their sidewalks free from ice imposes a purely public duty, and persons injured by slipping on the ice cannot bring private actions against the owners of the premises. Breaches of public duty must be punished in some form of public prosecution, and not by way of individual recovery of damages; though when the duty imposed is for the protection and benefit of a particular individual or class, as well as for that of the public, there may be an individual right of action for individual injury, as well as a public prosecution.

When a municipal charter empowers the common council to regulate the care of sidewalks for the public benefit, and provides that lot owners shall be liable to the city for all damages which the city may be compelled to pay for the default in neglecting to observe such regulations, no action against a lot owner can arise, if at all, until after the city has been held liable in a suit against it.

Error to the Superior Court of Detroit. Submitted October 15, 1880. Decided January 5, 1881.

CASE. Plaintiff brings error. Affirmed.

Griffin & Dickinson and Henry M. Campbell for plaintiff in error. The breach of a duty imposed by statute for the benefit of individuals will sustain a remedy at common law if an individual is thereby injured: Couch v. Steel 3 El. & Bl. 402; Chicago & Alton R. R. v. Engle 76 Ill. 317; Correll v. B. C. Railroad 38 Iowa 120; Jetter v. N. Y. C. & H. R. R. R. 2 Keyes 154; Willy v. Mulledy 78 N. Y. 310; Dudley v. Mayhew 3 N. Y. 15; Augusta &c. R. R. v. McElmurry 24 Ga. 75; Wakefield v. Conn. &c. R. R. 37 Vt. 330; 1 Addison on Torts, § 59; where an action lies against a city for an injury caused by neglect to observe an ordinance and the city can recover from the individual from whose default the injury arose, the person injured may

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