of law for the court. See the very fully extended note to the case of Atchison, etc., R. Co. v. Hinsdell (76 Kan. 74, 90 Pac. 800, 12 L. R. A. [N. S.] 94), 13 Ann. Cas. p. 984 et seq.

Recent cases sustain the well-established rule that, as a prisoner is entitled to a hearing within reasonable time after his arrest, delay for an unreasonable length of time in bringing him before the court constitutes false imprisonment. Gomez v. Scanlan, 155 Cal. 528 (102 Pac. 12); Clark v. Tilton, 74 N. H. 330 (68 Atl. 335); and see numerous other cases cited in Keefe v. Hart, 213 Mass. 476 (100 N. E. 558), as reported in Ann. Cas. 1914A, at p. 716, and note on p. 717. This right may be waived by the prisoner.

In the instant case it is not claimed that the plaintiff ever assented to any delay. While he claims that he was constantly asking for a hearing, the most that is claimed on behalf of the defendants upon that subject is that he made no request in the matter.

In Linnen v. Banfield, 114 Mich. 93, which was an action for false imprisonment against Banfield, a police officer, and others, and after approving the directed verdict as to the other defendants, this court, speaking through Justice MONTGOMERY, said:

"As to defendant Banfield the case is different. We think there was a case made for the jury on both counts. Assuming that the arrest without warrant was justified, it was the duty of arresting officers to take accused before a magistrate at as early a date as was practicable. This arrest was made on the evening of the 31st [December] and the plaintiff was detained without bail until the evening of the 2d of January. The information upon which the warrant was sworn out was all this time in the possession of the officers. We think it should not be held as a matter of law that this delay was reasonable. Malcolmson v. Scott, 56 Mich. 465.

** * *

"The officers were authorized to detain the plaintiff on the charge of felony without a warrant for a rea

sonable time only. 1 Am. & Eng. Enc. Law, p. 732; Rohan v. Sawin, 5 Cush. (Mass.) 281. Time is presumed to be of some importance to one incarcerated without process, and promptness is required when the information, upon which proceedings are to be based is at hand, in order that the accused may not be deprived of the right to give bail. We do not overlook the claim that the officer was acting under the instructions of the prosecuting attorney, but we know of no rule which authorizes a prosecuting attorney to enlarge the authority of the arresting officer. While such instructions may bear on the good faith of the officer's acts and thus affect the question of damages, it must be borne in mind that good faith does not excuse an unauthorized arrest."

Neither does it justify an unreasonable detention and deprivation of one's liberty. There is, in other jurisdictions, an abundance of authority to the effect that an unlawful detention following a lawful arrest by a sheriff makes him a trespasser ab initio. But this court held in Friesenhan v. Maines, 137 Mich. 10, that an unlawful detention following a lawful arrest by a sheriff does not make him a trespasser ab initio, unless the original arrest was made with the intent of being used for a subsequent wrong. We think that this rule is applicable to the instant case, as we find no evidence of such intent.

Much stress is laid by appellant upon the point that the plaintiff was "incarcerated among felons," in violation of the statute already referred to. It should be borne in mind that the plaintiff never had been sentenced, and that no commitment had been issued for his detention. He was simply charged with contempt of court; and, in our opinion, not with criminal contempt. It is true that the border line between what may be termed "civil," and what "criminal," contempt is exceedingly indistinct and narrow, leaving it often a question of extreme refinement as to whether the act was one or the other. Of course, all

judgments for contempt are, in a sense, punitive, since the sentence may be fine and imprisonment in both. But here there had been no judgment pronounced. In our opinion the statute relied upon by the appellant is applicable here, and the manner in which the plaintiff was treated by the defendant Berry while in custody and where he was detained, are matters that were pertinent in the case.

There were certain cards introduced in evidence, known as the "yellow" card and the "white" card, which appeared to be instructions of the circuit judge relating to the question of probation. We think their introduction was not warranted under the notice in the pleadings, but we do not deem the question an important one.

The defendants in their evidence went far afield upon the question of the merits of the divorce suit. Save as a matter of cross-examination, as affecting the credibility of the plaintiff, we do not think that was an open question upon the trial.

In our opinion the court erred in directing a verdict in favor of all of the defendants; and the question whether the defendant Berry was guilty of an unreasonable detention in jail of the plaintiff should have been submitted to the jury under proper instructions; and the case should go back for a new trial as to the defendant Berry, for the reasons herein stated.

Judgment as to the defendants Griswold and Hyde is affirmed, with costs; and as to defendant Berry is reversed with costs, and a new trial ordered.

BIRD, MOORE, STEERE, BROOKE, FELLOWS, and KUHN, JJ., concurred. OSTRANDER, C. J., did not sit.

BRITTON v. MICHIGAN RAILWAY CO.

1. APPEAL AND ERROR-ASSIGNMENTS OF ERROR-SUFFICIENCY. An assignment of error that "the court erred in finding as a question of law that the plaintiff was guilty of contributory negligence," fairly and sufficiently presents the question.

2. RAILROADS-PERSONAL INJURIES-CROSSING ACCIDENT-CONTRIBUTORY NEGLIGENCE-DIRECTED VERDICT.

In an action against a railroad company for personal injuries by a 15-year-old boy who was driving a horse and buggy with the curtains up on a rainy day, testimony by plaintiff that he stopped and looked both ways when his horse's head was about 18 or 20 feet from the track, and then proceeded to cross the track without looking again in the direction from whence the car came, although it was within the range of his vision, when he was struck and injured, held, by a divided court, to justify a directed verdict for defendant.

Error to Kent; Brown, J. Submitted October 23, 1918. (Docket No. 4.) Decided December 27, 1918.

Case by Claude Britton, an infant, by his next friend, against the Michigan Railway Company for personal injuries. Judgment for defendant on a directed verdict. Plaintiff brings error. Affirmed by a divided court.

Martin H. Carmody, for appellant.

Sanford W. Ladd and Justin R. Whiting (Warren, Cady, Ladd & Hill, of counsel), for appellee.

STONE, J. This case is here upon writ of error sued out by the plaintiff to review the action of the court below in directing a verdict and judgment for the defendant upon the ground of the contributory negligence of the plaintiff. The plaintiff having rested his case,

upon motion of the defendant, the court directed a verdict for the defendant upon the ground stated. The action of the court in that regard presents the only meritorious question in the case. The assignments of error are criticised by appellee as too general, under the rule; but we think that the fourth assignment of error, that "the court erred in finding as a question of law that the plaintiff was guilty of contributory negligence," fairly and sufficiently presents the question. The action was brought to recover damages for personal injuries to the plaintiff, sustained about 10:55 a. m. on June 26, 1916. He was then a boy 15 years of age. The injury occurred at a crossing of the electric railway then being operated by the defendant, between the city of Grand Rapids and the city of Holland, the crossing being known as Shackhuddle crossing, in Ottawa county. The negligence complained of, and relied upon, was that the defendant neglected and failed to blow the whistle, or ring the bell when approaching the crossing, and that its train collided with the horse and buggy driven by plaintiff. The facts as to the conduct of the plaintiff are not in controversy, except as he varied his testimony upon some matters during the trial, as we shall notice.

At this crossing the railway runs north and south, having a double track, and the highway runs, practically, east and west. There is a downgrade of the tracks at the crossing, from the south to the north, the direction in which the defendant's train, which caused the injury, was moving; which grade begins about 800 feet south of the crossing, and continues beyond the crossing. This grade is a little more than one per cent. The train which collided with the plaintiff's horse and buggy consisted of a work car and two empty gravel cars. The work car was about as high as an ordinary box car-12 to 13 feet-and the gravel