The allegations of the declaration, among other things, stated that, by the terms of this policy, other concurrent insurance was permitted, and specifically alleged the subsequent insurance, giving the name of the company and the amount of the policy. Defendant company by pleading to this declaration without denying under oath the execution of this policy of insurance declared upon, admitted the execution of the instrument in manner and form as alleged. Peoria Marine & Fire Ins. Co. v. Perkins, 16 Mich. 380; Simon v. Insurance Co., 58 Mich. 278 (25 N. W. 190).

The policy was burned at the time the fire occurred, but the only dispute as to its stipulations was relative to the concurrent insurance clause. Plaintiff objected to testimony that the policy issued prohibited concurrent insurance, for the reason that no denial of the execution of the policy sued upon was made under oath. It was received by the court to be ruled upon later, and finally the court refused to strike it out. Under this ruling much testimony is improperly in the record. The rule in this State is well settled by the cases above cited, and numerous others cited and digested in footnotes to Union Central Life Ins. Co. v. Howell, 101 Mich. 335 (59 N. W. 599). By this testimony a question of fact was raised, but the issue was not in the case under the pleadings, and the refusal of these requests or the charge of the court in this respect will not be considered. Whatever of prejudice there was on account of the action of the court was not against defendant.

It is next urged that the court was in error in not instructing a verdict for defendant because it appeared that plaintiff was not the sole and unconditional owner of all the property insured. It did appear in the case that the front and back bar in the saloon were purchased by plaintiff upon a conditional sale, and the purchase price had not been paid. The application for this insurance was oral. Plaintiff testified that at the time of effecting the insurance he informed the agent of defendant of the con

ditional character of his title to part of the property insured. This testimony was denied by the agent. This raised a question of fact for the jury to determine. It was properly submitted for such determination; the court charging substantially that plaintiff's interest in the part of the property in question was an insurable interest, and he would have a right to insure it if, as a matter of fact, he notified the agent of defendant of his conditional title at the time. he effected the insurance. This did not mislead the jury, which found the fact favorable to plaintiff. No request upon this question was presented by defendant other than a request for an instructed verdict. In view of the dispute between the parties upon this material fact, the court would have erred had a verdict been instructed as requested.

The policy contained a clause as follows:

"This entire policy shall become void if the hazard be increased by any means within the control or knowledge of the insured."

The insurance was placed upon the property heretofore mentioned "while contained in the frame shingle-roofed building and adjoining and communicating additions thereto, while occupied as a saloon and dwelling house and situated," etc. After the current year, during which plaintiff might engage in the business of a retail liquor dealer, had expired, he did not pay the annual tax upon the business for the ensuing year, nor did he pay the United States special tax, by reason of which defendant claimed that the hazard had been increased, and also that he had been conducting the business of a retail liquor dealer contrary to law. The evidence upon this issue was submitted to the jury to determine as a question of fact. Defendant contends that the court erred in refusing to direct a verdict against plaintiff "because, by the uncontradicted evidence, the hazard at the time of the fire was increased contrary to the condition of said policy." The evidence did not warrant a directed verdict. The

text-writers agree that the question of increase of hazard is usually a question of fact, although there may be such a state of facts, established by uncontradicted evidence, as would require a court to decide it as a matter of law. Defendant in this case presented no request upon the question except the one quoted. The action of the court was as favorable as defendant was entitled to.

Errors assigned as to other portions of the charge are not discussed in appellant's brief. We have examined errors assigned relative to the admission and rejection of testimony, and find that none of them were prejudicial to defendant.

Certain portions of the argument of plaintiff's counsel were excepted to. Some of these statements might well have been omitted. From the charge of the court, it would appear that both sides had indulged in extravagant language, and the court charged the jury as to its impropriety, and that it must be stricken from consideration. We think the learned trial judge properly disposed of the matter.

We find no prejudicial error in the case.

The judgment is affirmed.

BLAIR, C. J., and OSTRANDER, MOORE, and BROOKE, JJ., concurred.

SEWELL v. DETROIT UNITED RAILWAY.

1. STREET RAILWAYS-CARRIERS-NEGLIGENCE.

In an action against a street railway for injuries sustained by a passenger, evidence of a collision between the car on which plaintiff was riding and a car which was standing still, whereby the latter was forced ahead 75 feet, furnishes proof of negligence.

It cannot be said, as a matter of law, that the inference of negligence is fully met by a witness who is contradicted by other evidence, and who testifies that he was the motorman of the car which caused the collision, that he was unable to use the hand brake or air brake and that the fuse burned out when he tried to reverse the current.

3. SAME-EVIDENCE-BURDEN OF PROOF-PRESUMPTIONS.

It was error for the trial court to charge the jury that the burden was on the defendant to rebut the presumption of negligence which the evidence raised,1

4. SAME-BURDEN OF PROOF.

The burden of proof in an action for negligent injuries does not shift to the defendant upon proof of a collision, but remains with the plaintiff.

Error to Wayne; Brooke, J. Submitted May 6, 1909. (Docket No. 61.) Decided November 5, 1909.

Case by Charles A. Sewell against the Detroit United Railway for personal injuries. A judgment for plaintiff is reviewed by defendant on writ of error. Reversed.

Corliss, Leete & Joslyn (Benjamin S. Pagel, of counsel), for appellant.

Thomas Hislop, for appellee.

MONTGOMERY, J. The plaintiff on the morning of Jan

'As to presumption of negligence from injury to passenger, see note to Barnowski v. Helson (Mich.), 15 L. R. A. 33.

uary 23, 1907, boarded a car of the defendant company near his residence, and proceeded towards the downtown section of the city. At the intersection of Clifford street and Park Place the car in which plaintiff was riding collided with a car ahead of it, which had stopped to let off passengers. The force of the collision threw the plaintiff forward, and caused injuries which resulted in a permanent stiffening of the knee. The testimony on the part of the plaintiff tended to show that the cars came together with considerable force, and that the forward car was pushed ahead a distance of 75 feet.

The defendant introduced the testimony of the motorman in charge of the car in which the plaintiff was riding. He testified that he was following up the car ahead of him; that he remembers bringing his car around the curve on Clifford street, which was a block west of Bagley avenue, and the car at that time was running less than half speed; that when he got around the curve he applied his brakes to the car, and at that time the car ahead of him was on the next curve on Clifford street, which is at the intersection of Park Place, and when he started to stop the car, he was a block and a half away from the car ahead of him; the blocks at that place not being full-sized blocks; that when he applied his brakes the car started to stop, and "then there seemed to be something let go, and she started ahead all of a sudden;" that he then wound up his hand brake and tried to operate it, and found that that was entirely gone, so that it would not wind up; that after he tried the hand brake he reversed the current, the car still progressing towards the other car on the track; that it was slowing up a trifle; that when he tried the hand brake he was nearly a block back; that when he found the hand brake would not work, he reversed the current, and the fuse wire blew out; that he was therefore left without any power or brakes either; that he then attempted to put another fuse wire in, but did not succeed in getting it in before the car struck. He also testified that the car ahead was pushed forward, he should judge, 12 or 14 feet.