Franklin Glenn Knickerbocker, was guilty | knows as well as an adult that upon the top of contributory negligence as a matter of law, and you will return a verdict for defendant." There was a verdict and judgment for the plaintiff. Appellant relies upon errors assigned upon the refusal to direct a verdict, the refusal to give its requests to charge, and the refusal to admit in evidence an ordinance of the city of Owosso, prohibiting the riding of bicycles on the sidewalk. Argued before OSTRANDER, C. J., and STEERE, MOORE, BROOKE, and STONE, JJ. Harrison Geer and Wm. B. Williams, for appellant. A. L. Chandler and George E. Pardee, for appellee. OSTRANDER, C. J. (after stating the facts as above). [1] The court erred in submitting to the jury the question of the contributory negligence of plaintiff's intestate. The fact is undisputed that for a distance of 70 feet before he reached the crossing plaintiff's intestate could have-must have-seen the approaching train, had he looked. The view was unobstructed; the train could have been seen a half mile or more to the east. He was not riding fast; he was riding down a slightly inclined walk; he was a normal lad, except for a slight deafness in one ear, of average intelligence, used to going about the city, crossing railroad tracks and managing a bicycle. He lived in the vicinity, and had apparently crossed these tracks within a very few minutes. The crossing sign was before him. He was alone, with nothing to distract his attention, intent upon no errand, with no playmates preceding or following him. We must assume, in view of the testimony, that the jury under the charge of the court found in his youth excuse for his carelessness. There ought to be no dispute about the governing rules. It is true that "duty can only be predicated of one who has capacity to understand and ability to perform," and that the care to be exercised by children, while it must be ordinary care, must be proportioned to their age and capacity. It was said, in Ecliff v. W., St. L. & P. Ry. Co., 64 Mich. 196, 202, 31 N. W. 180, 183: "Where there is any conflicting evidence as to the danger likely to be incurred, or as to the act or acts in getting in the way or reach of such danger, or as to the age or capability of the child, the question of the contributory negligence of the person injured or killed should be submitted to the jury." The rule is a familiar one. Cooper v. L. S. & M. S. Ry. Co., 66 Mich. 261, 33 N. W. 306, 11 Am. St. Rep. 482; Baker v. P. M. R. R. Co., 68 Mich. 90, 35 N. W. 836; Wright v. Railway Co., 77 Mich. 123, 43 N. W. 765; Lehman v. Eureka Iron & Steel Works, 114 Mich. 260, 72 N. W. 183. It was further of freight cars, or in front of the engine, when reversed, between that and the cars, is not a safe place when the train is moving. The fact that a boy of that age is more reckless and not as cautious as a man, in the face of such danger, is not of itself enough to excuse him." In Henderson v. Citizens' St. Ry. Co., 116 Mich. 368, 374, 375, 74 N. W. 525, 527, a boy eight years old was injured by a street car. It was said: "Witnesses for the plaintiff state that, if the boy had looked in the direction of the car, he could have seen it. It was but common prudence in crossing such a thoroughfare to look, not only for the car, but for any vehicle which might be coming. Injury would have occurred from collision with an ordinary wagon just as surely as from running into this car, and, from the testimony of the lad himself, he had intelligence enough at the time to know this. Why, then, should it be left for the jury to say that he had not?" See, also, Trudell v. Grand Trunk Railway Co., 126 Mich. 73, 85 N. W. 250, 53 L. Ed. 271; Perego v. Lake Shore, etc., R. Co., 158 Mich. 225, 122 N. W. 535. In the Ecliff, the Trudell, and Perego Cases, the injured child was trespassing; while in the case at bar, as in the Henderson and in the Baker Cases, the child was rightfully in the highway, crossing the track upon which injury was received. The test to be applied to determine whether the injured person was negligent is not different in either case. [2] When a child is old enough to be chargeable with some degree of care for his own safety, then, "as to any given event, a child is responsible for just such care for his own safety as may reasonably be expected of one of his age, development, and intelligence under the circumstances characterizing the particular event." Secard v. Rhinelander Lighting Co. (Wis.) 133 N. W. 45. We are left in no doubt concerning the manner in which plaintiff's decedent was killed. intelligence and his ability to appreciate the danger which actually threatened, and to avoid it, if seasonably discovered, cannot be questioned. He did not discover the actual danger. Under the circumstances, he was chargeable with some degree of care for his own safety, and it does not appear that he The jury should have exercised any care. been so instructed. His [3] Whether the cause should go down for a new trial depends upon whether, as ap pellee contends, there was testimony tending to prove the gross, wanton negligence of defendant's servants. It is certified that the record contains the substance of all of the testimony given at the trial. We do not find in the declaration any allegation that the peri! of plaintiff's decedent was discovered by any of the servants of defendant, of due care. The term "gross negligence" 30 feet from the track. The boy appeared to be "stooped over, had his hands on the handlebars." "He didn't seem to me as though he was paying any attention." The train had a speed of about 20 miles an hour. No steam was being used, and none had been used for a quarter of a mile. The train was equipped with Westinghouse air brakes. Air had been applied before Glenwood avenue was reached, somewhat reducing the pressure. He put the brake lever into the emergency position and opened the sand box. The whistle had been blown for the crossing, and was not again used before the boy was struck, because there was not time to do more than was done. There were cars stored on the Ann Arbor railway track, which has been referred to, east of Glenwood avenue, to within 35 feet of the east line of the street. As has been stated, there was a space of 70 feet between the two tracks, in which space, if not before, the boy had opportunity to look, listen, and stop, and in crossing which space he might have been seen, probably, if the engineer had been looking at and for nothing else. But it is not has been used in cases decided by this court, and has a definite meaning, when referred to as authorizing a recovery for a negligent injury, notwithstanding the contributory negligence of the plaintiff. It means the intentional failure to perform a manifest duty, in reckless disregard of the consequences as affecting the life or property of another. It also implies a thoughtless disregard of consequences, without the exercise of any effort to avoid them. Schindler v. Railway Co., 87 Mich. 400, 411, 49 N. W. 670; Denman v. Johnston, 85 Mich. 387, 396, 48 N. W. 565. In Labarge v. Pere Marquette R. Co., 134 Mich. 139, 95 N. W. 1073, the cases are reviewed, and the doctrine of "gross negli gence," as stated and defined in Richter v. Harper, 95 Mich. 221, 225, 54 N. W. 768, 769, is approved. In the last-mentioned case, it is said: "It is urged by plaintiff's counsel that the negligence of defendants was so gross and willful as to excuse concurring negligence on the part of the plaintiff; it being claimed that where the negligence of the defendant is gross or willful the contributory negligence of the plaintiff is not a de- | negligence—clearly it is not gross negligence fense. This is but another way of stating the doctrine of comparative negligence, which has never obtained in this state. It is true that the contributory negligence of the plaintiff does not prevent recovery in a case where the defendant, who knows, or ought, by the exercise of the most ordinary care, to know, of the precedent negligence of the plaintiff, by his subsequent negligence, does plaintiff an injury. * This rule does not permit recovery, notwithstanding plaintiff's contributory negligence, but it recognizes that such discovered negligence of plaintiff, or his negligence which should have been discovered, is not a contributing cause to the injury in a legal sense. This, we think, is the logical statement of the rule as deduced from the authorities." See, also, Buxton v. Ainsworth, 138 Mich. 532, 101 N. W. 817. [4,5] There was a conflict of testimony concerning the speed of the train; little, if any, actual conflict as to the giving of signals, or as to whether the headlight of the locomotive was burning. Witnesses testified they did not hear the signals, although in a position where they could have heard them; did not see the burning headlight. Other witnesses testified that the signals were given, and that the locomotive carried a lighted headlight. Glenwood avenue is the street first reached and crossed by defendant's trains from the east. It is near the eastern limit of the city. Defendant's engineer, who drove the locomotive engine upon the occasion in question, was a witness for defendant, and testified that when he first noticed the Knickerbocker boy he was approaching the crossing, and the engine was about 100 feet from the crossing. The boy was 25 feet or to fail to stop or to fail to gain complete control of a train of cars, merely because persons are seen approaching the track upon a highway on foot, or with vehicles. Such an approach is not usually evidence of negligence, and such persons are not usually in any peril. No error was committed in refusing to submit the question of "gross negligence" to the jury. The judgment is reversed, and no new trial will be granted. A. BACKUS, JR., & SONS v. DETROIT RIVER TUNNEL CO. (Supreme Court of Michigan. Dec. 8, 1911.) COSTS (§ 271*)-CONDEMNATION PROCEEDINGS. Defendant, having instituted proceedings to condemn any rights plaintiff might have in land needed for a tunnel under the Detroit river, elected and was permitted to discontinue the proceedings on paying $2,233.80 costs. The proceedings were discontinued, but the costs were not paid. After discontinuation, the railroad company for which the tunnel was being constructed instituted a chancery suit against to the land by adverse possession, and, while plaintiff to quiet the railroad company's title this suit was pending, a settlement was agreed to by which plaintiff deeded the land in question and other land to the railroad company, the agreement concluding that all litigation then pending and unsettled should be discontinued without cost to either party, and stipulations to that effect were thereupon filed in both the Held that, condemnation and chancery suit. such stipulation having merely made effective what had been previously agreed to by plaintiffs, it constituted a release of the judgment for costs in the condemnation case without special authority to make it. reference to whether plaintiff's attorney had [Ed. Note.-For other cases, see Costs, Dec. Dig. § 271.*] Action by A. Backus, Jr., & Sons against the Detroit River Tunnel Company. Judgment for defendant, and plaintiff brings error. Affirmed. Error to Circuit Court, Wayne County; | would formally dismiss them; that the jury Morse Rohnert, Judge. waited, the judge was busy, it was arranged that the jury need not come back, but that Butterfield would then and there, and he did, send for money to pay, and paid, üe jury, and the judge dismissed them. testimony was given by one of the jurors. No new proceeding was instituted. The bill of costs referred to was never paid. Argued before OSTRANDER, C. J., and STEERE, MOORE, BROOKE, and STONE, JJ. Albert McClatchey, for appellant. J. W. Dohany (Henry Russel, of counsel), for appellee. This This action, which is in assumpsit, is brought to recover the said sum of $2,233.80. with its plea of the general issue, the defendant gave notice that it would show in its OSTRANDER, C. J. A condemnation pro- defense, among other things: (1) That the ceeding was instituted in the circuit court claim for which the suit is brought, as set for the county of Wayne by the Detroit up in the declaration, has been fully satisRiver Tunnel Company, in which the defend- fied and discharged; (2) that according to an ant, a corporation, was described as owner agreement made and entered into between of the land sought to be taken in the pro- the parties on December 24, 1908, it was, ceeding. The petition therein was signed by among other things, agreed that all pending the Detroit River Tunnel Company, by O. E. litigation should be discontinued without Butterfield, its attorney. It is provided by costs to either party; (3) that on the 1st day law (2 Comp. Laws, § 6246) that it shall be of February, 1909, the proceedings in which competent for the company upon cause said costs are alleged to have been taxed shown and with leave of the court to discon- was by the parties discontinued without tinue all pending proceedings in any such costs to either party. Upon the trial of this case at any time before the report of the issue, the facts already stated appeared, jury or commissioners shall be made to the and, in addition thereto, that at some time, court; "but the company in all such cases not disclosed by the bill of exceptions, but shall pay all the costs of such proceedings so which the brief for appellant says was Nodiscontinued, with an attorney fee, to be vember 28, 1908, the defendant, the Detroit taxed as in cases at law." It does not ap- River Tunnel Company, the Michigan Cenpear that any order was ever made or entral Railroad Company, and Butler Brotherstered discontinuing the said proceeding. The Hoff Company, as complainants, joined in record in the case at bar contains an opinion the bill of complaint against A. Backus, Jr., of one of the judges of the Wayne circuit & Sons and the Dime Savings Bank as decourt, entitled "Detroit River Tunnel Com- fendants, praying, among other things, for a pany, a Corporation, Petitioner, v. A. Back- decree setting aside a certain conveyance of us, Jr., & Sons, a Corporation, Respondent," the land involved in the condemnation proin which it is recited that "a motion is made ceeding as a cloud upon the title of the comby the petitioner to dismiss the jury im- plainants, and for an injunction. The origpaneled in this cause, and to discontinue all inal bill was offered and received in evipending proceedings." The statute (6246) is dence, and we think properly so, for the purquoted in the opinion, and, after the quota-pose of showing the matters at issue and the tion: "I feel that no sufficient or reasonable parties in interest. It sets out that the Decause has been shown for the dismissal of this jury, and for the discontinuance of these proceedings, after 20 days having been consumed; * but if it is the disposition of the petitioner to have the jury dismissed, and to discontinue the pending proceedings, if may do so, provided, the petitioner first pays to the respondent the following costs, and an order may then be made and entered accordingly, dismissing the jury and discontinuing said pending proceedings"-follows a bill of items of cost, verified by the secretary and treasurer of said respondent, apparently approved by the court, amounting to the sum of $2,233.80. This opinion is dated July 17, 1907, and the affidavit to the items of costs appears to have been made July 16, 1907. It appears from oral testimony that at some time Mr. Butterfield told the jury the tunnel company had decided to discontinue the * troit River Tunnel Company was organized for the purpose, among other things, of constructing a double-track railroad tunnel under the Detroit river and adjacent lands between the city of Detroit, Mich., and the township of Sandwich West, in Ontario, in Canada; that the railroad company operates a railroad upon and over the piece of land the title to which was involved; that the Butler Brothers-Hoff Company is a New York corporation; that the defendant bank held a mortgage upon the piece of land in question, with other lands, but otherwise had no interest in the subject-matter; that the defendant A. Backus, Jr., & Sons claims title to the said piece of land and operates a planing mill or box factory upon lands adjacent thereto; that the said tunnel company, in July, 1996, received from the said railroad company a deed of the right to use for tunnel purposes below the grade of said parcel of land in question; that the tunnel company, pursuant to the purposes of its organization, entered into a contract with the Butler Brothers-Hoff Company for the construction upon the land and right of way conveyed by the railroad company of a doubletrack tunnel underneath the Detroit river and adjacent lands about 12,800 feet in length, to cost, approximately, $7,000,000; that after the work of construction was begun the tunnel company was advised that the Backus Company claimed title to the particular piece of land underneath which it was the design of the tunnel company to construct its tunnel, said land being in area about .035 of an acre and unoccupied except by the railroad tracks, unloading platforms, and rolling stock of the railroad company; that, acting upon the supposition that said piece of land belonged to said defendant, the Backus Company, and was of trifling value, and that the construction of the tunnel 30 feet underneath the same was likely to cause little or no damage thereto, the said tunnel company instituted proceedings under the statute for the purpose of condemning for public use the interest of the said defendant, Backus Company, in said parcel of land; that in the condemnation proceedings the taking of testimony before a jury continued for some days, the defendant the Backus Company made no question of the necessity for appropriating the land to the public use, but represented to the jury that the construction of the tunnel might cause the soil to settle upon that and adjacent lands, and that if it did settle it would be likely to result in damage to the planing mill and business of the Backus Company; that the extent of the business carried on by the said defendant in its said mill was sought to be grossly exaggerated for the purpose of securing an award far in excess of the fair value of the property sought to be taken and in excess of the damages which would be likely to result therefrom. The bill further sets out the various actions and methods taken by the said Backus Company to obstruct and prevent the building of the tunnel, which need not be here repeated, and charges further that upon investigation the complainants determined that the particular piece of land had been openly, continuously, and adversely occupied by the railroad company for more than 15 years before said railroad company deeded said land to the tunnel company; that the railroad company had a valid and subsisting title thereto in fee by adverse possession; that in consideration of the facts and circumstances disclosed by said investigation the tunnel company discontinued said condemnation proceedings and caused the special jury to be discharged from the further consideration thereof. What proceedings were taken in the said chancery suit we do not know. It appears ment was made by the said railroad company and the Backus Company, which was reduced to writing, by the terms of which the railroad company was to purchase and the Backus Company was to convey to it, not only the land in question, but other lands owned and claimed to be owned by the Backus Company adjacent to the right of way of the railroad company for the sum of $250,000, and said Backus Company was to have a lease of the said property for one year without rent and one year within which to remove all personal property from the premises. The agreement concluded as follows: "It is further agreed that all litigation now pending and unsettled shall be discontinued without costs to either party." It also appeared that the sum of money mentioned in said agreement had been paid, and that thereafter-that is to say, after such payment-two stipulations were made and filed, one entitled in the condemnation proceeding, the other in the chancery cause. In the condemnation proceeding, the stipulation reads: "It is hereby stipulated and agreed that the above-entitled proceeding may be and hereby is discontinued without cost to either party thereto." It is signed, Detroit River Tunnel Company, by Henry Russel, attorney, A. Backus, Jr., & Son, by W. I. Robinson. was filed February 1, 1909. Mr. Robinson represented the Backus Company both in the condemnation proceeding and in the chancery cause. Concerning the said disposition of the condemnation proceeding, the officers of the Backus Company, who were sworn as witnesses, professed to have no knowledge, and it is denied that any one was ever authorized to compromise or settle any claim for the costs in that proceeding or to dismiss the proceeding without costs or to waive the payment of costs. The circuit judge directed a verdict for the defendant, and judgment was entered on the verdict. It We are of opinion that the judgment should be affirmed. Without deciding whether an action would lie for the amount of the costs summarily allowed by the circuit judge under the circumstances disclosed, we think it is manifest that the agreement which has been referred to must be considered as made with knowledge of existing circumstances, including the one that the said costs had never been paid. The argument that Mr. Robinson had no special authority, and as attorney of record no general authority, to make the stipulation discontinuing the condemnation proceeding without costs, is answered by the statement that his principal had already agreed that this should be done. The Michigan Central Railroad appears to have been interested in fact by reason of its relation to the title to the land in dispute in the condemnation proceeding. It was interested in the chancery proceeding because it was a party thereto. At the time the referred to therein, if we speak by the rec- | is the only question raised upon the record. ord, was the condemnation proceeding and The challenge sets out the following facts: the chancery suit, and the agreement refers | "First. That the list of jurors returned for to "all litigation now pending and unsettled." the September, 1911, term of court were so returned September 5, A. D. 1911, and such list was signed by William H. Seitz, William H. Watson, Philip Hiler, Albert Haid, and Benjamin F. Earl. Second. That William H. Seitz was a jury commissioner of this county, having qualified as such on August 7, A. D. 1911. That the appointment of said William H. Seitz was a reappointment to succeed himself. That William H. Watson having been appointed December 28, A. D. 1910, he qualified as such commissioner February 2, A. D. 1911, and Philip Hiler having been appointed December 28, A. D. 1910, qualified as such commissioner April 8, A. D. 1911. That their commissions as issued and signed by the Governor of Michigan as jury commissioners for Berrien coun 2. JURY (8 62*)-SELECTION-COMMISSIONERS- ty, Mich., continued for one year from and STATUTORY PROVISIONS. Under Pub. Laws 1905, No. 58, providing for the appointment, qualifications, and duties of jury commissioners, and the mode of selection of juries, and stating that the board of commissioners shall consist of three persons only, a selection of a jury list by five men, though each claimed to be possessed of the necessary legal qualifications, is without statutory authority and will invalidate the array of a jury selected therefrom, without the necessity of showing any resulting injury. [Ed. Note.-For other cases, see Jury, Cent. Dig. §§ 273-275; Dec. Dig. § 62.*] Error to Circuit Court, Berrien County; Orville W. Coolidge, Judge. Victor Tonnelier was convicted of crime and brings error. Reversed, and new trial ordered. Argued before OSTRANDER, C. J., and STEERE, MOORE, BROOKE, and STONE, JJ. Humphrey S. Gray, for appellant. Franz C. Kuhn, Atty. Gen., and William H. Andrews, Pros. Atty., for the People. BROOKE, J. Respondent stands convicted of keeping a gaming room and keeping games of chance by use of a slot machine, and has removed his case to this court by writ of error. after December 28, A. D. 1910, and until December 28, A. D. 1911. Third. August 7, A. D. 1911, the Governor of Michigan appointed William H. Seitz, Albert Haid, and Benjamin F. Earl jury commissioners for the county of Berrien for the term of one year, and such appointees qualified as such commissioners as follows: William H. Seitz, August 7, 1911. Albert Haid, August 19, 1911. Benjamin F. Earl, August 21, 1911. Fourth. Commissioners William H. Seitz, William H. Watson, and Philip Hiler met in the courthouse in the city of St. Joseph, Mich., to select jury lists on August 14, 1911, and August 15, 1911, and then and there proceed with the examination of the tax rolls for the petit and grand jurors; also, on August 16, 1911, and then again continued such examination of the tax rolls; also, they met on August 17, 1911, but on that date, owing to the Governor's having appointed other commissioners, the decision of the prosecuting attorney of Berrien county and of the Attorney General relative to such appointment, and as to who were the proper commissioners, was awaited. Fifth. On August 21, 1911, the board of five commissioners, William H. Seitz, William H. Watson, Philip Hiler, Albert Haid, and Benjamin F. Earl met in the courthouse but transacted no business; also, on August 25, 1911, the board of said five commissioners again met and adjourned to September 4, 1911. Sixth. On September 4, 1911, the said board of five commissioners met in the court After respondent's plea of "not guilty" had been entered, the names of 12 jurors were drawn from a list returned September 5, 1911, by the following persons acting as jury commissioners for Berrien county; William H. Seitz, Philip Hiler, William H. Watson, Albert Haid, and Benjamin Earl. Be-house and completed the selection of petit fore the jury was sworn, a challenge to the array was interposed by respondent. This challenge having been overruled by the court, the jury was sworn, testimony was introduced by the people, and respondent was found guilty. The facts set out in the challenge are admitted by the prosecuting attorney, the sufficiency of which, therefore, and grand jurors, and reported the list se lected by such commissioners; all signing the report or selection. Seventh. The five members were advised to agree on same list of jurors by the prosecuting attorney of the county of Berrien, and in pursuance of such advice did so meet as one board and agree on the names selected, so that names of |