author: Blair, J. Brooke, J.

text:
    CLARK v. JACKSON CONSOLIDATED TRACTION CO.
    1. Negligence — Street Railways — Highways and Streets.
    Upon testimony tending to prove, though contradicted, that plaintiff, after looking to ascertain if a car was coming, and seeing none, drove his wagon beside defendant’s car track so near as to be in danger from approaching cars, a distance of over 700 feet, that while so proceeding he turned across the track without looking again, in front of a car that came up behind him, without any warning, and was struck by it, that the motorman made no effort to stop the car until nearly at the moment of the collision, the question of negligence was for the jury.

      %. Same.
    Plaintiff was not barred from recovering because he turned from a hazardous situation to one of greater peril.
    3. Same — Contributory Negligence — Last Clear Chance.
    And where plaintiff looked for a car when he first turned upon the street, and saw none for about three blocks, then traveled at about ten miles an hour to the point at which he turned, it was for the jury to say whether he was guilty of contributory negligenoe in relying on the fact that the car would have to travel at an unusual rate of speed to overtake him, and it was for the jury to determine whether plaintiff should have looked again. Ostrander, C. J., and MoAlvay and Brooke, JJ., dissenting.
    Error to Jackson; Parkinson, J.
    Submitted February 15, 1911.
    (Docket No. 190.)
    Decided December 29, 1911.
    Case by Joshua D. Clark against the Jackson Consolidated Traction Company for personal injuries. Judgment for plaintiff. Defendant brings error.
    Affirmed.

      Thomas E. Barkworth, for appellant.

      Forrest G. Badgley and Verne W. Badgley, for appellee.
   Blair, J.

I am of the opinion that the circuit judge did not err in submitting this case to the jury upon the facts disclosed by the record.

The testimony is in irreconcilable conflict upon the essential facts. The testimony on behalf of the plaintiff tended to show that from the time he turned onto First street until his horses went diagonally across the track near Harwood street, his wagon was at all times so close to the track that the car could not have passed without colliding with it; that the gong was not sounded, nor other warning given, nor any attempt made to stop the car until almost the moment of collision; that the horses and wagon went onto the track, traveling slightly east of south, at a point 85 feet north of the north crosswalk on Harwood street, and the collision occurred 3 or 4 feet north thereof; that the usual rate of speed of the car was about 15 miles an hour, but the car was traveling faster than that at the time of the collision, and ran some 8 rods before stopping after the collision.

The motorman testified in part as follows:

“I first saw Mr. Clark and his wagon after I left Union street. That would be about the first I would take any particular notice of him. I might have seen from Morrell street, probably. I don’t remember seeing him on that day before the accident, particular, as I know of, until I got to McBride street. I did see him at McBride street. At that time he was on the west side of the track between McBride and Harwood. He was three or four rods ahead of me — something of that kind; about halfway between Harwood and McBride. His horses were trotting. At that time the ruts run in close to the track, so he would be so close you couldn’t pass him. I rung the gong, and shut the power off. He turned out a little bit out of the road. I saw he turned, or his horses went; anyway, he went, and I supposed he heard, and I throwed on the power again. He was not in front of me; he was off to one side; generally, he went on his course. He was two or three feet from the track. It was at a safe distance. From the time I stopped — from the time he turned out, when I first rang the gong, as I have detailed, until he approached Harwood street, that was the distance he was from the track. When I approached Harwood street, he acted as if he was going right straight on, and all at once turned right straight across the track. That was a little further beyond than I would have turned, if I was going to cross Harwood street. He turned squarer than I would have turned. When I saw he was evidently intending to cross Harwood street, I rang the gong and shut off the power and reversed. After I struck him, I didn’t go more than a car and a half length. It would be about forty or fifty feet from the place where the car struck him. The car struck his wagon about in the center, a little back of the center, maybe. * * * He continued right along in the rut all the way until within about two or three rods of Harwood. It was two or three rods from Harwood street when he went out of the rut. That took him away from the track. Where he struck the track would have been a little bit south of the center of the road on Harwood. I think he was right in the middle of the intersection of the two streets before he turned to go to his home. * * * The car was then running at full speed. Cars run pretty rapidly down that grade. I don’t believe I was running better than twelve miles an hour. * * * At the point where the rut left the track — left the rails — so as to bring a man driving in the usual traveled part of the way, it continued south most of the way, except two or three places through there. A man driving in the rut from that point four or five rods or better — five. No; I don’t think he would be in a dangerous position within four or five rods of Harwood — this side of Harwood — north. Yes; I am pretty sure of it. Safe down through most of the distance; safe places like that. There was places, of course, where they couldn’t pass on account of the mud holes, and the track was made in that way. The street was pretty rough outside of the beaten track. When I first gave warning, I shut off the power, and then shot it on again aB quick, as I saw he was out of the way, and I could see a way to pass.”

It is apparent from the motorman’s testimony that he observed the plaintiff’s position relative to the track throughout the block, and had full notice of such peril as that position indicated; and if his version of the facts is correct he was free from blame. On the other hand, if the jury accepted the plaintiff’s version of the facts, they would be warranted in finding that the motorman, recognizing the plaintiff’s dangerous position, that, owing to the condition of the street, he would be likely to maintain it, that “he acted as if he was going right straight on,” that he was likely to collide with him before he reached Harwood street (this being a just inference from his claim that he did stop the car for that reason ), that a collision was inevitable, unless the plaintiff drove out of the traveled track, that the plaintiff was apparently not aware of the approach of the car, that his wagon was making considerable noise upon the frozen ground, recklessly ran his car at full speed, and without any warning of its approach, with actual notice that he would probably collide with some part of the wagon. If the collision had occurred while the horses were still proceeding along the wagon track, the case would have fallen clearly within the principle of Montgomery v. Railway Co., 103 Mich. 46 (61 N. W. 543, 29 L. R. A. 287).

Does the principle of that case become inapplicable, because the plaintiff changed his dangerous position to one more dangerous? I think not. The motorman, having discovered the dangerous position which the plaintiff was in, was charged with the legal duty to so control his car as to prevent a collision, if reasonably practicable. The motorman owed this duty before the plaintiff changed his position; he did not cease to owe it because the plaintiff placed himself more in front of the car than he was before. This is not the case of one going suddenly from a place of safety, as apparent to the motorman, to a place of danger, but of one already in a perilous position, to the knowledge of the motorman, increasing his peril.

I am also of the opinion that the trial judge was justified in submitting to the jury the question of plaintiff’s contributory negligence. Plaintiff testified that when he drove onto First street he looked to the north, and there was no car in sight, and he could see for three blocks; that he then drove rapidly to make his crossing at Harwood street, traveling, according to his estimate, about 10 miles an hour. According to his testimony, a car would have to travel at a very unusual rate of speed to overtake him; and under such circumstances it would be for the jury to say whether he was justified in believing that he had plenty of time, or whether he should have looked again. Ryan v. Railway Co., 123 Mich. 597 (82 N. W. 278); Ablard v. Railway, 139 Mich. 248 (102 N. W. 741).

I do not think the court erred in receiving the testimony of Dr. Myers upon the ground stated in defendant’s brief.

The other points argued in the brief relevant to the charge of the court, so far as they have not been covered by what has been hereinbefore said, appear to me not to present prejudicial errors, but, on the contrary, the portions of the charge referred to were not unfavorable to the defendant.

The judgment is affirmed.

Steere, Moore, and Stone, JJ., concurred with Blair, J.

Brooke, J.

(dissenting). An action for damages, based on alleged negligence, resulted in a verdict and judgment in favor of the plaintiff. The defendant has appealed. The accident occurred on a street crossing, where the plaintiff sought to cross the defendant’s track, and his wagon was immediately struck by defendant’s car. That the plaintiff turned suddenly upon the track, without attempting to ascertain whether a car was near, is clearly proved. We have held that it is the duty of a driver, immediately before turning to cross a track, to look each way to ascertain whether it is safe to do so, and a failure to take such precaution is usually contributory negligence. See Fritz v. Railway Co., 105 Mich. 50 (62 N. W. 1007). In that case it was made to appear that the plaintiff was driving north on a street, and turned abruptly upon the track, with the intention of crossing, and his wagon was struck by a car which he had not noticed, although it had followed him along the street.

Mr. Justice Montgomery said, in Fritz v. Railway Co., 105 Mich. 50 (62 N. W. 1007):

“The driver of a vehicle in a public street traversed by a street railway is bound to take notice of the conditions. He knows that the street cars run in grooved tracks, and that it is therefore impossible for the driver or motorman to turn out to avoid collision with an object on the track; that the only means of avoiding collision is by stopping the car; and that this cannot be done instantly. It is therefore negligence for the driver of a carriage to suddenly turn directly in front of an approaching car, whether the car be coming from the direction in which he is driving or from the rear. We think it is also true that, in the absence of something to excuse the performance of that duty, it is incumbent upon the driver of such a vehicle, before attempting to turn across the track, to take proper means of ascertaining whether the way is clear, and this is especially true of an attempt to turn across the track in the middle of a block, or at any place other than a regular crossing. See Watson v. Railway Co., 53 Minn. 551 (55 N. W. 742). This the plaintiff failed to do in this case. Unless he had the right to assume that there was no car in the rear with which he was likely to come in contact, or unless he had the right to rely upon his failure to hear the sound of the gong, it was clearly negligent for him to turn across the track suddenly, and without assuring himself by proper investigation that no car was coming. Booth, St. By. § 315. In fact, until the car approached the crossing, it is very doubtful whether it was the duty of the motorman to sound any gong. So long as plaintiff was traveling in the same direction and at such a gait as would not result in collision, it cannot be said that the motorman had any occasion to sound the gong, as he would have no reason to apprehend that the plaintiff would come to a stop or make a short turn across the track.”

This case has been frequently approved and followed. Blakeslee v. Railway Co., 105 Mich. 462 (63 N. W. 401); Graff v. Railway Co., 109 Mich. 77 (67 N. W. 815); Borschall v. Railway, 115 Mich. 473 (73 N. W. 551); Ryan v. Railway Co., 123 Mich. 597 (82 N. W. 278); Tunison v. Weadock, 130 Mich. 141 (89 N. W. 703); Bottje v. Railway Co., 157 Mich. 351 (122 N. W. 87).

The plaintiff’s counsel seek to avoid the consequences of this rule in two ways. They contend that:

(1) The plaintiff had looked for the car a short time before, and that it was not necessarily negligent to cross-without looking again.

(2) The motorman was chargeable with wilful and wanton misconduct.

The testimony shows that the plaintiff drove down First street to Union street, where he turned upon the latter. As he turned onto Union, he looked back, up First street, and concluded that no car was coming. He testified that he could see from 2£ to 3 blocks, and satisfied himself that no car was coming, but that he must have been mistaken, as the sequel proved. It was 47 or 48 rods from the corner to Harwood avenue. When he reached that' point, he brought his horses to a walk, and attempted to drive diagonally across the track, without looking for a car. We are constrained to hold that he was negligent in not looking back immediately before turning suddenly upon the track. See cases heretofore cited; also authorities cited in Pilmer v. Traction Co., 15 L. R. A. (N. S.) note, pp. 256, 258, 259. We do not repeat the list; it is a long one, and includes many well-considered cases.

The basis of the charge of wantonness or failure to act upon discovery of plaintiff’s danger is testimony tending to show that the condition of First street, though frozen, was rough and bad, and that the best portion of it was close to the car track, where the traveled wagon track was; that plaintiff’s wagon and team proceeded along the car track in such close proximity as to preclude the possibility of a safe passing by the car, unless he should turn away from the- track; and that this was obvious to the motorman. It is urged that it was apparent that he would be struck if he proceeded without turning out, and that, having discovered the danger, the motorman was guilty of wantonness, or, as is sometimes said, “gross negligence.” The plaintiff testified that he did not hear the gong, or he would have turned out and stopped his team, which it is apparent that he could easily and safely have done at any point, although the road was rough and bad. Had he even done so after he reached Harwood avenue, where there must have been room, he would have been safe. The motorman, if he rang his gong, had a right to expect this; and if he did not ring his gong until he saw plaintiff turning on the track there is nothing to indicate any wantonness, even if it was negligent, which we do not imply. It was then, for the first time, that plaintiff was in the danger of the collision, and the undisputed proof shows that then the motorman acted with promptness in an emergency which he had no occasion to anticipate. The alleged danger of driving near the track for 800 feet resulted in no injury, and had nothing to do with the accident, which was the immediate result of a failure to look for the car before turning on the track — a precaution that the Jaw required, and that the motorman had a right to expect.

This subject is discussed in the case of Blakeslee v. Railway Co., 105 Mich. 462 (63 N. W. 401). We said:

“It was contended that it was a case of recklessness upon the part of the motorman. If there was an intentional or wanton running into the load of barrels, by the jnotorman, after discovering plaintiff’s perilous position, there would be room for the application of the doctrine that the negligence of the plaintiff was not contributory; but if that element was lacking, and the accident involved only a want of ordinary judgment, prudence, or care, there is no room for it. Doubtless the use of streets for cars is an inconvenience to other travelers. We should Tiardly recognize the common experiences of ordinary life, did we not understand that mutual annoyance and friction to and between those who operate cars and other vehicles is to be expected, and that wanton and intentional injuries are possible, as are unnecessary detentions of cars by wilful teamsters. But they are not to be presumed, and, unless there is some tangible evidence that a collision is intentional or wanton, a jury should not be permitted to so find.”

See, also, Allworth v. Lighting Co., 142 Mich. 25 (105 N. W. 75); Merritt v. Foote, 128 Mich. 367 (87 N. W. 262); Borschall v. Railway, 115 Mich. 473 (73 N. W. 551); Daly v. Railway Co., 105 Mich. 193 (63 N. W. 73); Lyons v. Railway Co., 115 Mich. 114 (73 N. W. 139); Stenzhorn v. Railway Co., 159 Mich. 82 (123 N. W. 621);. Levy v. Railway Co., 164 Mich. 572 (129 N. W. 683).

We are of the opinion that, upon the theory that the-case should have gone to the jury, there was error in the charge, as it indicated to the jury that proof of the failure-to slow the car up and bring it under complete control, by reason of plaintiff’s proximity to the track as he proceeded down Union street, was testimony tending to prove wantonness. Some of the cases cited support a contrary rule,, as already appears.

The defendant was entitled to a directed verdict in its-favor, and the judgment should be reversed and a new trial ordered.

Ostrander, 0. J., and McAlvay, J., concurred with Brooke, J.


source: Caselaw Access Project

author: Ostrander, C. J. Blair, J.

license: Public Domain

text:
    JONES v. PERE MARQUETTE RAILROAD CO.
    1. Railroads — Operation op Trains — Negligence op Dispatcher
    It was not negligence on the part of a train dispatcher to direct a regular train to proceed, after having informed a subordinate in charge of the local yard and the movement of trains, that the regular passenger train would not run over that portion of the line but would detour, where the train dispatcher had the right to expect, if any other train was permitted to proceed on the time of the passenger train, its crew would obey all rules and requirements of the company, which, if followed, would protect both trains.
    2. Same — Evidence—Rules.
    The meaning of printed or written rules and bulletins of a railroad corporation for the guidance of its employés is for the court unless some ambiguity is involved, and opinion evidence is not admissible to show their meaning.
    3. Same — Locomotives—Trains—Words and Phrases.
    Under provisions of defendant’s rules that the word train should be understood to apply to an engine or more than one engine coupled, with or without cars, etc., a freight engine and its tender were included in a rule forbidding north-bound trains to use the south-bound track of a double-track system.
    4. Same — Violations op Rules — Notice.
    A rule forbidding north-bound trains to use the south-bound track was not shown to have been changed by a custom to use the track inconsistently with such rule, under evidence that yard engines used both tracks in either direction, under the direction of a yardmaster, but not on the time of regular trains, and under special precautions for protecting them, or that a dummy train was permitted by authority to use the south-bound track in running north, or that passenger and freight engines took the left track to go to the roundhouse; defendant employing a man to see the rules were obeyed, so far as possible, and keeping the rules and bulletins posted in conspicuous places. Moore and Blair, JJ., dissenting.
    5. Same.
    It is only where the defendant has sanctioned a custom to violate its rules that they will be deemed abrogated.

    6. Same.
    Plaintiff was guilty of contributory negligence in using the south-bound track to go north with his locomotive. Moore and Blair, JJ., dissenting.
    7. Witnesses — Evidence — Adverse or Hostile Witness — Statutes.
    Under Act No. 307, Pub. Acts 1909, permitting a party to call for cross-examination agents and employés of the opposite party, the testimony of defendant’s employés or servants so introduced by plaintiff was a part of his case, and the witnesses were not defendant’s witnesses.
    Error to Kent; Perkins, J.
    Submitted January 4, 1911.
    (Docket No. 16.)
    Resubmitted October 17, 1911.
    Decided December 29, 1911.
    Case by Clarence Jones against the Pere Marquette Railroad Company for personal injuries. Judgment for plaintiff. Defendant brings error.
    Reversed and no new trial ordered.

      Bills, Streeter & Parker (Charles E. Ward, of counsel), for appellant.

      Charles G. Turner and M. A, Nichols, for appellee.

       Duties of master and servant as to rules promulgated for conduct of business, see notes in 43 L. R. A. 306, 10 L. R. A. (N. S ) 772.

   Ostrander, C. J.

The plaintiff, formerly a railroad engineer on the defendant’s railroad, was injured in a collision between his engine and a passenger train known as No. 8, running between Grand Rapids and Chicago. The collision occurred in defendant’s yard near Grand Rapids, known as “Wyoming yard.” Defendant’s track was a double main track, running southerly from Godfrey avenue or thereabouts at Grand Rapids through Wyoming yard to a point where the Lake Shore road crosses defendant’s road. Beyond that it was a single track. A double-track main also existed on the Detroit branch, extending from Oakland to or near Oakland avenue, where it connected with the Chicago line. A Y extended from the Detroit line to a switching station, known as “Sunny Side,” upon the Chicago line, over which freight trains on or for the eastern branch go to and from the Wyoming yard, which was located a mile or so southwest of Sunny Side. A half a mile or more southwest from Sunny Side, and at the north entrance of Wyoming yard, was another switchman’s station, known as “ Plaster Creek.” Wyoming yard extended a mile south of Plaster Creek, and a short distance south of the south entrance to the yard, perhaps a quarter of a mile or more, was the Lake Shore crossing. At each end of the yard, and also at Sunny Side, was a cross-over, used for engines and trains to cross from one main to the other. The rule of the road was to use the right-hand main. All trains going south were expected to take the westerly track and north-bound trains the easterly track. On the night of the collision plaintiff approached -Sunny Side from the east about 11:35 p. m., and this was five minutes after the regular time for No. 8 to leave Grand Rapids for Chicago, which he knew, and he also knew that No. 8 had the right of way over Ms train. He accordingly inquired of the switch tender where No. 8 was, or if it had gone, or made some other similar inquiry, and was informed that No. 8 was not going over this road that night, but was going to detour over the Grand Rapids & Indiana and Michigan Central, owing to a washout at Saugatuck, some 40 or more miles southwest of Grand Rapids. He accordingly proceeded. The switch was thrown, and he entered upon the northbound main, protected in crossing from both ways by the target, which, when thrown, showed to all trains on the main line that such mains were blocked. Knowing that they were upon the time of No. 8, and having no written order in relation to No. 8, his train, after crossing the north-bound main to the southbound main, proceeded south with due caution; i. e., the conductor stood on the rear platform with the proper lights and fuses, as required by rule 99, ready to use the same upon the appearance of any train following. Plaintiff proceeded down to Plaster Creek, expecting to then take a switch at the north end of Wyoming yard. The Plaster Creek switchman stopped him, and gave him information that the yardmaster directed that he go south through the yard and back in on a switch, and this he did, and the switchman testified that he watched his rear lights all the way down, and saw that he backed in “clear.” While he was executing this maneuver — i. e., backing in — the target at the south end was thrown by his brakeman or the yardmaster, thus protecting him against trains from both directions, as it indicated that the mains were blocked. His train being safely on the switch, it remained for him to take his engine to the roundhouse. He therefore backed out onto the southbound main, and, had he followed the rule to use the right main, would have run south about three car lengths to the cross-over, and gone over that to the north-bound main, which the yardmaster expected him to do, as he said he would set the target on that main against any train from the west. Instead of doing so, after getting clear of the switch, plaintiff started north on the southbound main. His conductor had left the rear of the train and started to walk up to the Wyoming office, situated about midway of the yard, taking the south-bound main to avoid the danger of being run down by any engine or train from the south, upon the assumption that only south-bound engines or trains would be on that track. He had a narrow escape from being run down by plaintiff’s engine. Meantime No. 8 had received no order to detour, but, instead, a clearance order over defendant’s own road, and, although plaintiff saw the headlight coming, he supposed it was a dummy that made regular trips to Wyoming station, and kept on. This resulted in a collision, in which both engines were wrecked, plaintiff was injured, his fireman killed, and one or more of the crew of the passenger engine and several passengers were injured. An inquest was held over the remains of plaintiff’s fireman, and plaintiff was a witness, and stated one or more times, in describing how the accident occurred, that he was on the wrong main, and was run into by No. 8, which he had supposed was going to detour. After-wards plaintiff brought this action and recovered a verdict and judgment for $15,000 for his injuries, and the defendant has appealed.

If the foregoing statement were all there is to this case, it would seem that, not only was the plaintiff guilty of contributory negligence, but that there would be more reason for his being before the court as a defendant than plaintiff at the suit of all of the injured members of the two train crews and ■ passengers, if he was fortunate enough, as he seems to have been, to avoid a charge of manslaughter, as it clearly appears that he deliberately violated the written rule of the company in proceeding north with his engine on a south-bound main, knowing both the rule and the fact that he was on the time of No. 8 south bound, which he knew was, as the sequel proved, a most hazardous thing to do under ordinary, or for that matter unusual, circumstances, against which the rule was plainly designed to provide and protect, and for which violation he was liable to a fine of $25 and three months’ imprisonment under the general laws of this State, “and any conductor, engineer, servant, or other employe of any such railroad corporation, who shall knowingly violate any of the printed or written rules or regulations of such company, shall be subject to a fine of not less than twenty-five dollars nor more than one hundred dollars, or to an imprisonment in the county jail not more than three months, or both such fine and imprisonment, in the discretion of the court” (2 Comp. Laws, § 6286), of which he was advised by the book of rules in his possession. The excuse made for his misconduct was his own convenience in avoiding the delay of having a few switches thrown and the alleged custom of disobeying or disregarding the rule that all trains should use the right-hand main, together with his belief that No. 8 would detour, upon which belief the rules clearly forbade his relying without taking the precautions provided and required by rules and bulletins.

The negligence alleged and relied on is that the train dispatcher, after informing the yardmaster that No. 8 would detour, sent the train out from Grand Rapids some 85 or more minutes later without first notifying.the yard office of his intention to do so. The plaintiff could not have known it had this been done, as he and the yardmaster were half a mile from the office at that time.

The undisputed facts are: That for several days a weak bridge at Saugatuck, some 40 or more miles west of Grand Rapids, had made it necessary to detour No. 8 via Grand Rapids & Indiana and Michigan Central roads; and, while on this evening orders were given to hold No. 8 for a time in the hope that it might avoid the detour, it was expected that the train would detour. Knowing that No. 8 had detoured on previous days, and with a view to the entrance of plaintiff’s train, which he expected to arrive soon, the yardmaster telephoned the dispatcher to know what was to be done with No. 8, and was informed that it would detour. This was about 11:15. He thereupon informed the switchman at Plaster Creek of the fact, and directed him to inform plaintiff not to take the switch at the north end of the yard, but to proceed south through the yard and back in from the south. We have seen that the switchman at Sunny Side was also informed that No. 8 would detour. Hence he informed plaintiff, and he proceeded via south main to the south end of the yard by direction of the Plaster Creek switchman, where he found the yardmaster awaiting him. He entered upon the south-bound main at 11:35, being about five or ten minutes before the regular time for No. 8 at Sunny Side, by direction, of the yardmaster through the switchman. Meantime No. 8 was being held in the hope that she might proceed via the Pere Marquette line, and at about 11:50 clearance orders were given, and the train departed with the result above stated. We must therefore inquire whether this was negligence in the train dispatcher.

The proposition is that, having stated to the yardmaster that No. 8 would detour, it was negligent to send the train out without informing the yardmaster of the change before doing so. This will depend upon the printed rules and bulletins and the practice of the road and what the dispatcher had a right to understand and expect. The bulletins and rules were in writing, and the plaintiff, yardmaster, and switchman all had copies of the latter.- Their meaning was a question for the court, and a large amount of opinion evidence as to their meaning was erroneously admitted. The dispatcher had a right to expect that the rules and bulletins would be obeyed by all. Assuming that he knew when he told the yardmaster at 11:20 that the train would detour, that the yardmaster would admit plaintiff’s extra freight into the yard on the time of No. 8, which he did at 11:85, he knew that, if the rules should be obeyed, the only thing that could happen would be the delay to No. 8 which might be caused thereby. The reason for saying this is that he knew that No. 8 could not pass the Sunny Side switch without the signal required to be given by the switchman, who would be acting under rules 590 and 591, and would not “give the proceed signal unless all was right.” He knew, also, that the same would be true at the Plaster Creek switch. Furthermore, he knew that, in the event of the failure of the switchman to block No. 8 if necessary, the plaintiff’s train would be protected by its conductor under rule 99, as was done, and that in executing the switching movement at the south end of Wyoming yard the plaintiff’s train would be protected by the south board, which it was the engineer’s duty to cause to. be displayed until he was “in clear ” on the switch. So far the plaintiff had acted in obedience to the rules and the directions of the yardmaster, and no harm had befallen him. The Plaster Creek switchman, who could see the entire length of the yard, had seen his lights go off from the main line before No. 8 passed his switch. His conductor had stood at his post, fuses in hand, and lamps burning, until the train was out of danger. Then, his work done, he started for the yard office, leaving the engineer to take his engine to the roundhouse, which he could have done without going upon the main track, or by way of the north-bound main, under protection of the yardmaster. At this point he departed from the rules. It is a significant fact that there is no evidence that any other engine was on either main, not even a yard engine. All were “in clear ” because they were on the regular time of No. 8. Even the dummy, which was scheduled to run every 40 minutes or so, was safely sidetracked, awaiting No. 8 or such other train as might be sent out on her time; for, if No. 8 detoured, it would leave the towns between Grand Rapids and Saugatuck without train service unless another train should be sent over that portion of the road, as was sometimes done where trains detoured. It is manifest that, if the rules were obeyed, the dispatcher would have a right to assume that any train going south would be under protection, and that no train would be coming north on a south-bound main on the time of No. 8, and it is clear that, having a right to proceed on the theory of obedience to the rules, he cannot be said to have been negligent in giving a clearance order at 11:55 without first calling up the yard office, and seeing that the west main was clear. See Veit v. Railroad Co., 150 Mich. 366 (114 N. W. 236), where we said:

“ The train dispatcher was not chargeable with notice that if the crew of No. 42 returned to Mesick, as he expected they might, they would disregard the well-understood rules made largely for the protection of their own lives. He had a right to rely upon the observance of the rules by the trainmen, and to give his orders upon that basis. There is no evidence in this case to affect the right of the dispatcher to rely upon an observance of the rules, without which reliance he could not conduct the train movements of the road.”

See, also, Enright v. Railway Co., 93 Mich. 409, 412, 413 (53 N. W. 536); Whalen v. Railroad Co., 114 Mich. 512, 524 (72 N. W. 323).

Plaintiff’s counsel appear to have recognized the force of this, and, to avoid such conclusion, attempt to convince the jury, first, that these bulletins did not apply to light engines because they mentioned trains only, and engines were not trains, and therefore there was nothing prohibiting such engines from using the left mains; and, second, that this engineer did not violate the bulletin because he did use the right-hand track when taking his train through the yard, and it was the same track when he returned with the engine, and therefore he was still using that same right-hand main. That the word “trains” included light engines other than yard engines appears from the first definition in the book of rules, viz.:

“ Train — An engine, or more than one engine coupled, with or without cars; displaying markers.”

The other proposition requires no discussion. The main contest, however, centers in the claim that, by reason of the custom, the plaintiff had the right to go north on the south-bound main on the time of No. 8, believing that it would not run.

We have examined the rules and bulletins, and we hold first, that they are to be construed by the court, and opinion evidence as to what they meant was not admissible; second, that under these rules No. 8 was not annulled by the telephone message to the yardmaster, or in any other way, and the plaintiff had no right to consider it so; third, that, whether supposed to be annulled or not, the bulletins forbade plaintiff to run his engine north on a southbound main on the time of a regular train, or, for that matter, at anytime; fourth, the evidence, such as it was, that it was the custom to run trains north on the southbound mains, consisted of the following:

(a) The yard engines were used on both mains in both directions. This was permitted under the direction of the yardmaster when not on the time of regular trains and they were properly protected.
(6) The dummy ran from near Union Station to Wyoming yard station on the south-bound main. There being no cross-over at that point, it backed up to the cross-over at Plaster Creek. Both of these were allowed by authority, and cannot be considered as an abrogation of the general rule that “trains will use the right-hand track ” and run with the course of traffic.
(c) Testimony of the plaintiff and one or two other witnesses that they had seen passenger and freight engines take the left-hand track to go to the roundhouse.

This testimony was meager, and was contradicted by several witnesses who were in a position to know. It did not justify an inference that the defendant knew and consented to the abrogation of this general rule, leaving engineers and trainmen to use either track at will. It is inconsistent with the object of a double track. Moreover, it appears that those bulletins are kept posted in conspicuous places, and the rules require that they be read by the engineers before every trip. Again, a man was employed whose duty and business it was to instruct new men as to the rules and bulletins. Again, the plaintiff admitted that he knew it was his duty to report infractions of these rules, and he did not do it when he saw them, thereby indicating the bad faith of all these claims. We should grant a new trial if for no other reason than that the judgment was contrary to the evidence.

The plaintiff’s case reached a point upon the trial where it was made to turn on the proposition that the rule requiring engineers to use the right-hand main was abrogated by the tacit assent to a custom so common and general as to justify the conclusion that the managing officer having the making and abolition of rules knew of and approved the violation. Counsel for plaintiff cite the case of Fluhrer v. Railway Co., 121 Mich. 212 (80 N. W. 23), as sustaining the rule upon which they rest this point. That was a case where a brakeman was injured in coupling cars. Mr. Justice Grant there said, with the approval of his associates :

“It is well settled that a violation of the rules of the company will defeat recovery. The exception to this is where the company itself has sanctioned the custom of its employés to act in violation of the rules, and has thus virtually abrogated them. This exception is based upon the theory that it would be unjust in employers to establish rules, and then sanction their violation, and interpose such violation as a defense. Hunn v. Railroad Co., 78 Mich. 513, 526 (44 N. W. 502, 7 L. R. A. 500); Eastman v. Railway Co., 101 Mich. 597, 602 (60 N. W. 309). Fairly construed, the above rule is notice to brakemen not to enter between the cars while in motion, to uncouple them, and an agreement not to do so. The danger in doing so is apparent. Only when this rule is violated by brakemen so universally and notoriously that it is a fair inference that the company sanctioned and approved the violation is the company barred from this defense. The court instructed the jury that if they believed that the motion of the cars was so slow that it was not negligence to pass between them to uncouple them, and that such was the usual custom of brakemen under like circumstances, then such act would not necessarily prevent recovery by the plaintiff. There was evidence tending to show that it was usual and customary for brakemen to pass between the cars while in motion to uncouple them. The case was not submitted to the jury upon the theory that the company had sanctioned a violation of this rule. The question was not referred to in the instructions. Under the instructions given, this rule was virtually thrown out of consideration, and the jury permitted to find that, if it was customary for brakemen to do this, then it was not negligence on the part of the deceased. Custom alone is not sufficient. It was held in Glover v. Scotten, 82 Mich. 369 (46 N. W. 936), that where a safe place was provided for switchmen to ride, and they chose to ride in a more dangerous one, and always did so, that would not relieve them from contributory negligence. When the defendant had entered into the contract with the deceased, in which he acknowledged the receipt of a copy of these rules, and agreed to abide by them, it had met the plaintiff’s case, even though it was not negligence per se to go between the cars when in motion. The onus prdbandi was then cast upon the plaintiff to show that the company sanctioned a departure from the rule by a custom so universal and notorious that, the company was presumed to have had knowledge of it and to have ratified it.”

The later case of Nichols v. Railway Co., 125 Mich. 394 (84 N. W. 470), was reversed for the reason that the court erred in his instruction upon this subject. In the case of Ball v. Hauser, 129 Mich. 401 (89 N. W. 50), we said:

“ Whatever we might conclude, were it necessary to pass upon the question, it is apparent from the cases cited that, even in railroad cases, recovery is permitted only when the testimony shows that the rule has been abrogated, and this may be inferred from the circumstances fairly establishing it. If that rule should be applied to this class of cases, we must inquire whether this proof warrants such a conclusion. The plaintiff claims that his proof does warrant it, because he has shown by testimony that some of the men have been in the habit of riding on the elevator; that one of the defendants had seen it done without remark; that he rode on the elevator himself; and that in taking up some kinds of freight it was necessary that a man should ride.
" The fact that some of the men rode down upon the elevator, even if occasionally seen by the defendants without remark, is not inconsistent with the claim that said rule was relied on, and not abrogated. Neither does the fact that one of the defendants rode upon it indicate an intention to permit the men to do so. Nor does the fact that it was necessary for men to ride up occasionally with bulky articles, if it was necessary, establish the abrogation of the rule. Even if it could be said to justify the plaintiff in riding up, it does not tend to show a consent that he should unnecessarily ride down in violation of the rule, which he must have understood from the notice, and which, if the testimony of other witnesses is true, he was repeatedly warned against doing. We think the testimony offered does not establish the claim that the defendants sanctioned such use of the elevator. Not only does this testimony not prove it, but much evidence tends to disprove it. The defendants are not shown to have found it necessary to send men up on the elevator with their materials, or that they expected that Nordella & Owen would do so. They stationed a man at the top to receive material, a. part of whose duty it was to warn men against, riding down, which he is shown to have done repeatedly. The engineer below performed a similar duty at defendants’ direction ; and the defendants at different times told men not to ride upon the elevator. The witness Brogden says that he repeatedly told Ball to keep off from it, and that he was in the habit of jumping on while it was in motion. It was the general custom for the men to go up and down on the ladders provided for the purpose. None of these things was disputed, except that Ball denies being warned to keep off, thereby contradicting several witnesses. This denial raised a question of fact as to that point, and we must therefore assume that he was not warned; but that, and the fact that he and others sometimes rode, do not prove that the rule was abrogated by defendants’ sanction, nor did it warrant the judge’s leaving the question to the jury. The undisputed proof shows that the defendants were insisting upon their rule. It was not their duty to hire men to warn others not to disobey a known direction; yet they did it. One warning would ordinarily be enough; yet these defendants not only kept the printed notice up, and men to enforce it at each end of the route, but themselves sometimes reproved men who still persisted in riding. An employer ought to have some rights which his employés are bound to respect. There is nothing to compel them to afford elevator transportation, or to preclude their providing for carrying freight to the exclusion of passengers without being liable to such as shall insist on riding in violation of instructions.”

In the present case, as in that, there was an absence of testimony that defendant’s officers who manage and make rules knew or ever heard of any violations of the rule. They persisted in handing out their rules and keeping the bulletins posted, and, as in the other case, they kept a man whose duty it was to see that they were obeyed so far as possible. There was a failure to show an abrogation of this rule, and the court should have so instructed the jury.

The law requires the making of regulations and rules by railroads. It punishes men who disobey them by fine and imprisonment. It is a startling proposition to men who travel on railroads that a regulation requiring engineers to observe the common rule of the road and keep to the right track may be disobeyed with impunity whenever an employé may have reason to think a particular train will not run, and not only that, but, after causing the death of one, painful injury to several, and wrecking his employer’s property and subjecting it to the payment of damages to its passengers, he may still sue the employer and recover large damages upon the theory that his criminal disobedience was invited by reason of the employer’s failure to anticipate and provide against it by taking him into its confidence, to the general demoralization of its business. Railroading is a matter of minutes and seconds. A dispatcher’s-office must depend upon rules and the obedience of station agents, telegraphers, engineers, conductors, and switch-men. Great care is taken to protect the public against the consequences of disobedience or mistake. The rules do not permit an engineer to go unprotected on the time of a regular train, even though he has reason to believe it will not run. He is still required to protect against accident, by obeying the rule, and it is made criminal to do otherwise. Written rules of railroad companies cannot be treated as abrogated by such railroad companies on testimony tending to show nothing more substantial than insubordinate and unreported criminal disobedience on the part of some of the employés. This is simply a case of' “taking a chance,”whereby many others “were made to take chances.”

There is another question that we refer to, not because it is necessary to a disposition of this case, but because it-has arisen in other cases. It involves the statute (Act No. 30?, Pub. Acts 1909), which provides:

“An act to authorize parties litigant, when they call as-witnesses in their behalf the opposite party, employé or agent of said party, to cross-examine such witnesses, and providing that they shall not be bound by their answers.
“ The People of the State of Michigan enact:
“ Section 1. Hereafter in any suit or proceeding in any court of -law or equity in this State, either party, if he shall call as a witness in his behalf the opposite party, employé- or agent of said opposite party, or any person who at the time of the happening of the transaction out of which such suit or proceeding grew, was an employé or agent of the opposite party, shall have the right to cross-examine such witness the same as if he were called by the opposite party; and the answers of such witness shall not interfere with the right of such party to introduce evidence upon any issue involved in such suit or proceeding, and the party so calling and examining such witness shall not be bound to accept such answers as true.”

It was the claim of the plaintiff’s counsel that, under this statute, they were entitled .to call as witnesses any persons who were in the employ of the defendant at the time of the accident, and obtain the benefit of their testimony without being bound by it. They insisted that the witnesses so called were not their witnesses, but the defendant’s witnesses, and that any testimony given by them was not a part of the plaintiff’s case except in so far as plain, tiff wished to make it such. Relying on this theory, they called witnesses Perry, Lawless, Venneman, Bays, Hibner, and Snyder. The title would seem to be enough to show that these were not to be called as defendant’s witnesses. They are there referred to as employés or agents of the opposite party and as witnesses called in behalf of the party calling them. The act allows such witnesses to be cross-examined and contradicted by the party calling them. The provision that such calling shall not interfere with their right to contradict or deny the truth of their statements conferred no new right. This act does not give the right to make them the witnesses of the adversary of the party calling them.

We have gone carefully over the record and briefs of counsel, and are constrained to say that defendant has not been shown to be negligent, that plaintiff was negligent in his disobedience of the rules of the road, which was the sole cause of his injury, and, being fully convinced that under no theory can plaintiff ever justly recover damages growing out of this transaction, the judgment is reversed, and a new trial is denied.

/Steere, McAlvay, Brooke, and Stone, JJ., concurred with Ostrander, C. J.

Blair, J.

(dissenting). In my opinion it was at least a fair question for the jury as to whether it was negligence on the part of defendant for the train dispatcher to send out train No. 8 without giving notice to the yardmaster of his intention to do so; he knowing that the yardmaster, acting upon the information furnished to him “just before No. 8 leaving time or just after,” would be likely to use the main tracks as yard tracks so far as No. 8 was concerned.

I am also of the opinion that the judge did not err in submitting to the jury the question of plaintiff’s contributory negligence. The negligence of plaintiff is to be considered with reference to the information, communicated to him through proper' channels by the train dispatcher, that No. 8 would detour as it had been detouring for several days. While the violation of a rule is evidence of negligence, as in the case of the violation of an ordinance, it is not under all circumstances conclusive evidence of negligence. The train dispatcher controls the movement of trains, and, in my opinion, it should not be held that, as a matter of law, it is negligence per se for the employés to rely and act upon his information as to the movement of trains. Even though it was negligence in the abstract to go upon the south main track, it might not be negligence as to train No. 8, which plaintiff, as a reasoning human being, had a right to believe he need not consider. Garrity v. Railway Co., 112 Mich. 369 (70 N. W. 1018, 37 L. R. A. 529); Philip v. Heraty, 135 Mich. 446 (97 N. W. 963, 100 N. W. 186); Cook v. Johnston, 58 Mich. 437 (25 N. W. 388, 55 Am. Rep. 703); Sterling v. City of Detroit, 134 Mich. 22 (95 N. W. 986); Tyler v. Nelson, 109 Mich. 37 (66 N. W. 671); Buxton v. Ainsworth, 138 Mich. 532 (101 N. W. 817).

Counsel for defendant say in their brief, after referring to the orders given by the yardmaster orally and by telephone, as to movements of trains on the yard side tracks, and occasionally on the yard main tracks:

“ There is a wide distinction between the above kind of orders, which are almost always communicated around yards by telephone or word of mouth, and orders allowing an engineer to use a main track on the time of a superior train. Main tracks through yards still retain their character as main tracks, and are under control of the train dispatcher. Yard engines often use these tracks, but, before doing so, they must know that no regular trains are due and no special trains with superior rights through the yards. On these main tracks various classes of trains move and a complicated system of rights has grown up to control their movements. Under this system the only man who can annul a regular train inside Wyoming yards is the dispatcher. As far as an engineer moving on a main track in Wyoming yards is concerned, he is entitled to believe that a regular train is annulled only when he has in his possession a written order from the dispatcher to that effect. No yardmaster or switch tender can annul a regular train in Wyoming yards under the rules, and, under the rules, the dispatcher cannot annul a regular train except by written order. There is absolutely no evidence in this record to show that in Wyoming yards or outside of it any train was ever annulled except by written order sent out by the dispatcher. The failure to appreciate the respective jurisdictions of the yardmaster and of the dispatcher in Wyoming yards, as established by the rules and practices of the defendant, the failure of the court to grasp the idea that the yardmaster controls yard tracks, and to some extent main tracks off the time of regular trains, but that the dispatcher is supreme over regular trains on main tracks, and that nobody is entitled to assume anything as to the movement of one of these regular trains on a main track, unless he had in his possession an order from the dispatcher, was one of the principal causes of the error of the court in this case.”

And again:

“Movements on the main line when regular trains are not due may properly be directed and controlled by the yardmaster, for he has the means of knowing all the trains that are on those tracks at that time. In that case the main tracks are treated for the time being as yard tracks, and all engines move on them under control, looking out for themselves and each other. To give the yardmaster control over such movements is a thing commonly done, and is a very different thing from giving him or any one under him the right to let an engine go out on the main track on the time of a regular train which has the right of way, does not run under control, and over whose movements the yardmaster has no jurisdiction. * * * When regular trains are not due through the yards, the yardmaster has the right to use the main tracks for switching movements, for the purpose of getting trains and cars from one part of the yard to another. The yardmaster has no control over regular trains, and their rights on the main track, when due, are paramount to any rights that he or any one under him can give. * * * On the night of the accident and a short time before No. 8 was due to leave the Union Station, the yardmaster at Wyoming yard called the dispatcher’s office on the public telephone, and inquired if it was the intention to detour No. 8 that night in the same way that it had been detoured other nights. He was informed that it was the intention. The yardmaster communicated this information to the switch tenders. This communication was for the purpose of advising them that they could let a south-bound freight train into the yards without incurring a delay for No. 8, as explained above.”

Mr. Lawless, the night yardmaster, testified:

“That night I called up the dispatcher’s office on the telephone. I asked him how No. 8 was going. Before that I had been outside, and I came into the yard office at Wyoming yards. If I remember right, the clerk had called up the dispatcher before that time, and the clerk told me that No. 8 was going over the Q-. R. & I. or over some other road. I do not remember which. I then called up the dispatcher’s office personally, and a man by the name of Booman, an operator in the dispatcher’s office, answered. The operator gave me the information. * * *
“Q. But whatever was the information the operator gave you came from the dispatcher, didn’t it ?
“A. That is the way I understood it to be. * * * I believed what he said, but, as far as running the train against that other man, I would never have done it.
“Q. Didn’t you rely upon the statement or information that you had there that No. • 8 was going to detour over the G. R. & I. ?
“A. I believed it at that time, yes, sir; believed that they were going to detour that certain train.
“Q. And you relied upon that, didn’t you ?
“A. In that one certain train of cars; yes, sir. I think I called up there between 11:25 and 11:30 p. m. It was either just before No. 8 leaving time or just after.
“Q. And, of course, you relied then upon the fact that this particular train No. 8 was going around over the G. R. & I., didn’t you?
“A. As far as that train of cars is concerned; yes, sir. # * #
“Q. Suppose you received a message over the wire that No. 8 was going by the way of G. R. & I., would you have a right to rely on the fact that it was going on the G. R. & I.?
“A. As far as that train No. 8 would go on there, that particular train of cars was going that way, that would be simply giving me the advice. That would be no annulment of train No. 8. * * * At the time I called up the dispatcher’s office, I was told that No. 8 was going to detour over the G. R. & I.”

The train dispatcher testified:

“Our first instructions were that No. 8 was to go the regular way, and afterwards it was changed to go via the G. R. & I., and then, after that, it was changed back to the original route.
“Q. Now, what I want to get at is what did he tell you that he told the night yardmaster, or what did you tell him to tell him at the time he called up ?
“A. Now, he was in communication with Mr. Quinlan about that and what passed between the operator and I, I could not say, but he kept me posted—
“Q. Now, to refresh your recollection, didn’t he tell you or you tell him that he had informed the night yardmaster that No. 8 was going to detour over the G. R. & I.?
“A. I might have done so; yes.
“Q. You said a moment ago that you knew the night yardmaster or somebody there at Wyoming yard called up to find out ?
“A. Yes, sir.
“Q. And that was the answer that you had given, was it, at that time, that No. 8—
“A. That was before the change; yes.
“Q. Before the change the last time ?
“A. Yes.
“Q. Was that the answer that you had given ?
“A. Yes, sir. * * *
“Q. Have you any way of knowing what time you got the order changing that arrangement of things; that is, about No. 8 not detouring ?
“A. No. That was done by telephone with Mr. Quinlan (chief train dispatcher).
“Q. And so that the detouring matter, by Mr. Quinlan, was changed again, was it ?
“A. Yes, sir.
“Q. And that was changed by telephone ?
“A. Yes, sir; with Mr. Quinlan. * * *
“Q. Do you know why Mr. Quinlan changed the order there at that time to send the train out over the Pere Marquette ?
“A. We received word from Mr. Long, I think it was —he was our engineer, civil engineer at that time — that the track, that the bridge would be so that we could go over it by a certain time, and it would be as well to run them that way to save time.
“Q. That was just before you sent No. 8 out that night, wasn’t it?
“A. The last change; yes.
“Q. And that was just before No. 8 went out on the night of March 9th that you received those instructions ?
“A. Yes; this last change.
Q. How did that instruction come ? Did that come by telegraph or telephone ?
“A. Telephone from Mr. Quinlan. * * * We did not telephone out there that there had been any change. Mr. Quinlan is our chief dispatcher.
“Q. Now, he gave you instructions over the telephone to detour No. 8 over the G. R. & I.?
“A. Gave it to our office; yes.
“Q. And he also gave you instructions over the telephone to run your train over the Pere Marquette, No. 8 ?
“A. After the first change.
Q. So he was giving you instructions as to what movement of passenger trains by telephone, was he ?
“A. As to which way to run them; yes, sir.”

The switch tender at Sunny Side testified:

“Q. I understood you to say you received your orders as to how to handle your switch from the yard office at Wyoming yards ?
“A. I did. There was no telegraph office at my station. I never received any 31 orders or 10 orders.
“ Q. How did you receive your orders ?
“A. Over the telephone.
“Q. Telephone from Wyoming yards?
“A. From Wyoming yards.
Q. Now, the orders given you there at that station, what orders was it that you received there; I mean in regard to handling your switch and trains ?
“A. In order to running the trains you mean ?
“Q. Yes.
“A. They gave me the orders from there in case any specials or anything of that kind were out, outside of the regular trains, why, they gave me the orders on telephone, or any other order that they wanted me to handle.
“Q. You handled them by telephone from the Wyoming yard office ?
“A. Yes, sir; no other way.
“Q. For instance, if with your information that you received you wanted to know whether a regular was late, did you get your instructions from Wyoming yards over the telephone ?
“A. I did.
“Q. And as to whether a train was annulled ?
“A. Yes, sir.
“Q. It came by telephone ?
“A. Yes, sir.
“Q. I will ask whether you made those inquiries, or they were telephoned out to you without inquiry?
“A. They were telephoned to me without.
“Q. If a regular train then was late, you received that instruction, did you, from the Wyoming yards office ?
“A. Yes, sir.
“Q. Or, if it was annulled, you received that instruction from the Wyoming yard office ?
“A. I did. * * *
“Q. As to your authority there at your station, what instructions did you receive as to letting trains through ?
“A. Why, of course, outside of the regular train, I was instructed to use my own judgment in letting them through.
“ Q. In letting them through ?
“A. Yes, sir.
“Q. Suppose, for instance, that you received an order that a train was an hour late, and an extra should approach your station from the east, would you let it through ?
“A. I would; that is, up to a certain time of this hour.
“Q. That is up to the time of—
“A. Say 10 or 15 minutes.
“Q. Were those your instructions to let them through ?
“A. They was.
“Q. So, if a train was annulled, was it your instructions to let the trains through then ?
“A. It was. * * * The first day that they were detoured was the 6th of March, and they were detoured every day after that until the 9th. On the 6th I received my instructions that trains were going to detour over the G. R. & I. over the telephone from the yard.
“Q. Then did you act accordingly ?
“A. I did.
“Q. Paid no further attention to the train ?
“A. No, sir.
“Q. Did you receive each day after that a telephone order up to the 9th that they were going to detour the G. R. & I. tracks; that is, the regular train.
“A. No; not each night I didn’t.
“Q. How did you know that they were going to detour there ?
“A. I didn’t know, only I depended on the yardmaster to let me know.
“Q. I know, but did the yardmaster let you know ?
“A. When they gave me this telephone, they gave me that telephone as an order until further orders, you see.
“Q. Oh, until further orders ?
“A. Yes, sir. I received a telephone message, on the night that plaintiff was injured. Plaintiff arrived there from the east with his train at 11:35 p. m.
Q. Did you handle the trains that came through there, let them in or stop them, according to the message that you received over the telephone from the yard office P
“A. I did. Mr. Jones arrived there about 20 minutes after I had received that information.
“Q. Do you remember how it was; did you make inquiry yourself, or were you told ?
“A. They called me up and told me.
“Q. Would they call you up on the same phone they called you, would they notify the Plaster Creek office, too ?
“A. Any time like that they called us both, first one and then the other, so both switch tenders heard it together, so we understood it.
“Q. After receiving these orders, you did go on and handle the trains accordingly f
“A. Yes, sir.
“Q. As I understood you to say, that was your instructions to do so from the yardmaster ?
“A. It was. It was Lawless gave me that instruction over the phone about 11:20 p. m.
”Q. Between the time that Mr. Lawless had informed you that No. 8 was going to detour over the G. R. & I., did you get any other order from the office that No. 8 was coming that way ?
“A. I did not.
“Q. Would you be notified if a special was going to run, and would they give you the time of its running past your station ?
“A. Yes, sir. If the order was canceled, they would notify me of that fact through the yard office by telephone.
“Q. And, as I understand you, it was your orders to act accordingly with the switches after receiving such an order ?
“A. Yes, sir.
“ Q. Now, did you have any instructions as to the time, after letting one train through, that you would let another through the switch following it ?
“A. Yes, sir. I was not to let another train follow a regular within 10 minutes, but all extras or like that it didn’t make any difference. * * *
“Q. When Mr. Jones arrived there at Sunny Side, what information did you give him, or what conversation did you have with him ?
“A. I told him that I had order that No. 8 was going to detour over the G. R. & I. I told him to go ahead and gave him the switch. It was 11:85 p. m. when he passed through my switch to the south. * * * If No. 8 had been on time, she would have been due at my station about 11:32 p. m. That would be three minutes before Mr. Jones appeared there.
“Q. Would you have let Mr. Jones through there over that track, had you known they were going to send No. 8 down ?
“A. No, sir. I relied upon the instructions that they gave me that No. 8 was going to detour.
“Q. And, had you had any knowledge whatever that the dispatcher had changed his mind about that train, would you have let Jones through ?
“A. No; I would not.
“Q. Did you know what train that was that was running; that is, No. 8 train that came down there, did you know what it was when it approached you ?
“A. I did not.
“Q. Did you know what it was when it got through and past ?
“A. I did not.”

Charles Williams testified:

“Q. Now, Mr. Williams, you have not read any order concerning any detouring of any train on the 6th, 7th, 8th, or 9th. I will ask you if orders for detouring are made by the dispatcher of trains ?
“A. Not for detouring; no.
“Q. I will ask you if detouring a train over the G. R. & I. annuls the train ?
“A. No, sir. * * *
“Q. Suppose a railroad man were told that No. 8 was going over the G. R. & I., would that mean to a railroad man, under the rules, that there would be no train go over the Pere Marquette on the time of No. 8 ?
“A. Not necessarily; no, sir. As long as the schedule of No. 8 was not filled, they might run trains over their own tracks on the time of No. 8.
“Q. Suppose they should issue an order annulling No. 8, then that would be different, would it ?
“A. That is a different thing entirely; yes, sir.”

Plaintiff testified:

“ I arrived at Sunny Side at 11:35. There was regular passenger train called No. 8 that was due to leave the Union Depot for Chicago at 11:30 p. m. A regular train is a train that runs on a schedule, on a time card.
“Q. And you say you arrived at Sunny Side at 11:35, five minutes afterwards ?
“A. Yes, sir. * * *
“Q. When you arrivéd at Sunny Side, what did you do?
“A. I pulled down clear on the Y, clear of the Chicago Division, so that I was clear off and took the brakeman’s lantern, and went down myself, personally, and asked the switch tender, Mr. Perry, how No. 8 was, and he says, ‘ Highball.’ He says: ‘ No. 8 is going to detour over G. R. & I. Go ahead, the track is all your own.’ * * *
“Q. Well, now after he had instructed you to go ahead, the track was yours, what did you do then ?
“A. I went back to my engine and proceeded on to Wyoming yards, and, on approaching Plaster Creek, I called for that crossing there to get into the yard, and they would not give it to me. I called for the crossing with three whistles. That was the call that would let me into the north lead of Plaster Creek. They would not give me the crossing there to go into the yards. The switch tender gave me a motion with his lantern to go ahead, and I pulled down to the switch tender’s station, and had a conversation with him. He said: ‘ Pull down to the south end of the yard and back in. The yard is blocked.’
“Q. That is, the lead was blocked?
“A. The north into the yard were blocked.
“Q. Then you understood the lead was clear, but the switches blocked ?
“A. Yes, sir.
“Q. Then what?
“A. I pulled down to the south end of the yard over the south lead switch, and they throwed or turned the switch for me to turn my train in.
“Q. Do you know who did that ? .
“A. The brakeman, I think.
“Q. Now at that point, did you back your train there ?
“A. Yes, sir.
“Q. At that point did you have any conversation with any one ?
“A. Yes, sir.
“Q. Who was it ?
“A. Dan Lawless, the yardmaster.
“Q. What was the conversation you had with him ?
“A. He stood at the switch when the engine went by the switch, and I hollered to him, and asked him what the other lead was.
“Q. What do you mean by lead?
“A. I was on one lead, and there was another lead running in, running parallel with the lead I was already on.
“Q. What did he say ?
“A. He said: ‘You had better come down the main.’ He said: ‘If you come down that lead, you will have lots of switches to throw, and it will be blocked with cars.’”

Defendant’s traveling engineer testified:

“Q. Now, then, if the yardmaster had conveyed this notice to the Sunny Side , switch tender that No. 8 was going to detour over the G. R. & I., did he have any right to rely upon that notice ?
“A. He had the yardmaster’s word that it was going to detour, and I suppose should rely upon it.
“Q. And in fact he should, shouldn’t he?
“A. Yes, sir.”

The train dispatcher was invested with the entire power of the company in moving trains, and it is a fair inference from the testimony that the train dispatcher understood that the yardmaster was making inquiries as to train No. 8 for the purpose of ascertaining whether he might use the main tracks through the yard without reference to that train. These inquiries were made just before or just after the leaving time of train No. 8, and the care of the yardmaster and the importance he attached to the information requested is shown by the fact that he did not rest upon the statement of his clerk, but called up the train dispatcher himself. When the train dispatcher informed him that train No. 8 would not come through the yard at all but would detour over the Grand Rapids & Indiana, he had a right to rely upon this statement and did rely upon it, and communicated the information in the customary manner to the switch tenders, and the switch tenders acted upon this information communicated in the customary manner, as was their duty. And the plaintiff, when informed by the yardmaster, through the switch tender, that the train would not pass through the yards that night, had a right to rely upon such information.

The question is not whether the trainmaster’s information was given in a particular form, but Was it such as a reasonably prudent man might rely upon as stating a fact? The train dispatcher himself acted upon a telephonic communication from the chief train dispatcher, and he manifestly expected that the yardmaster should act upon the telephone message from him. According to the testimony of the train dispatcher, no formal orders were made for the detouring of trains; and neither were there any formal orders as to the lateness of trains, but, as appears from the testimony hereinbefore quoted, such information was communicated customarily over the telephone, and was manifestly so communicated, with the expectation that it would be acted upon as true. It is not a sufficient answer to say that the train dispatcher had a right to rely upon an observance of the rules by the trainmen so far as train No. 8 was concerned. He had expressly notified them that they might disregard that train, and could not have relied upon their observance of any rules to protect themselves against that train. He must be held to have known that the men would rely upon a statement coming from him, the supreme power in the movement of trains, that train No. 8 would not go through the yard that night, but would detour just as it had been doing for several days. The negligence of the plaintiff, in my opinion, should be determined with reference to the situation which confronted him, and not merely with reference to arbitrary rules. So considered, his contributory negligence was at least a question for the jury. The whole question, in' my view, is whether the plaintiff had a right to rely upon the information given him in the customary way; and, if he did, then he was under no obligation to protect himself against train No. 8 at all. The record fairly discloses, I think, that the plaintiff had a right to rely upon the information given him as to train No. 8, or, at least, that it was not negligence per se to rely upon it.

It is said, however, that, since train No. 8 was not formally annulled, other trains might be sent through the yard on No. 8ss time, and that plaintiff was chargeable with notice that he might meet an extra at any moment, .and therefore was guilty of negligence in using the southbound main track in backing north. Assuming that it-would be negligence in the abstract for the plaintiff to back north upon the south-bound main, and that plaintiff would have been guilty as a matter of law of contributory negligence in case of collision with any other train running on No. 8’s time, it does not necessarily follow that he was guilty of contributory negligence in this case. If, so far as the train which collided with his engine was concerned, it was not actual negligence for him to use the particular track, his cause of action was not lost because of hypothetical occurrences which might have convicted him of negligence. ,

The trial court, however, did not take this view, but adopted the defendant’s view, and instructed the jury that plaintiff was guilty of contributory negligence, unless observance of the bulletin had been waived by the defendant, which question he submitted to the jury. In my opinion the testimony in the case, and particularly that given by plaintiff, Albert Palmer, and John Bays, warranted the court in submitting to the jury the question of the abrogation of the bulletin as to the track to be used under such circumstances as existed in this case. I think' the court sufficiently corrected such errors as were committed in receiving opinion evidence as to the construction of rules and bulletins, so that there was no prejudicial, error.

No request for a ruling appears to have been insisted, upon as to the improper argument of counsel, and such argument is not, therefore, properly before us for consideration.

In my opinion the judgment should be affirmed.

Moore, J., concurred with Blair, J.

Bird, J., did not sit.

       Continued from Vol. 167.


author: Brooke, J. Moore, J.

text:
    CONNOR v. LAKE SHORE & MICHIGAN SOUTHERN RAILWAY CO.
    1. Estoppel — Judicial Admissions — Stipulations — Attorney and Client.
    On the trial of an action for personal injuries, plaintiff's counsel admitted in open court that a turntable, at which plaintiff was employed turning an engine, could be revolved freely in either direction. The appellate court on error held that if he could have turned the table in the opposite direction the danger complained of could not have caused his injury and he should have selected the safer method. Held, that plaintiff was estopped on the second trial from taking the inconsistent position that the turntable could be revolved only in the direction in which he and his fellow-servants were causing it to move.

      2. Same.
    Judicial admissions stand upon a different footing from testimony and are conclusive, even upon a new trial. Moore and Blair, JJ., dissenting.
    Error to Lenawee; O’Mealey, J.
    Submitted June 28, 1911.
    (Docket No. 69.)
    Reargued October 13, 1911.
    Decided December 29, 1911.
    Case by Thomas Gr. Connor against the Lake Shore & Michigan Southern Railway Company for personal injuries. A judgment for defendant on a verdict directed by the court is reviewed by plaintiff on writ of error.
    Affirmed.

      Smith, Baldwin & Alexander, for appellant.

      Herbert B. Clark, for appellee.
    This case was before the court at the October, 1909, •term, and will be found reported in 158 Mich. 688 (123 N. W. 533). The facts are there set out with sufficient clearness. Upon a second trial, the plaintiff desired to be permitted to withdraw the concession made at the first trial (to which reference is made at page 694 of 158 Mich. [1X3 N. W. 533]), and offered to show that on the night in question the turntable with engine No. 50 upon it, not only could not be turned with equal facility in either direction, but that it was absolutely impossible to turn it except in the direction in which it was moving at the time plaintiff received his injury. Counsel for plaintiff further offered to testify that in making the concession which he did upon the former trial he acted under a misapprehension as to the scope of the inquiry made by defendant’s counsel, and intended only to admit that as a general proposition the turntable would move with equal facility in either direction, but did not intend to admit that it would so move at the time plaintiff was injured. Counsel for defendant objected, and insisted that to allow plaintiff to give testimony in accordance with the offer would be to permit him to entirely change the theory upon which the case was originally tried, and found to be untenable, and to adopt a theory as to a controlling fact wholly at variance with, and antagonistic to, the one at first relied upon. Counsel for plaintiff urged that there was no change of theory — that the record upon the first trial contained evidence tending to show that upon the occasion in question the table could be turned only in one direction, and it was plaintiff’s desire at this trial simply to amplify the evidence upon this point. The trial court, after an extended argument, granted the motion of defendant for a directed verdict, and plaintiff has removed the case to this court for review.
   Brooke, J.

{after stating the facts). Since the argument of this case we have again carefully examined the record presented to the court upon the former hearing. We find that plaintiff testified that engine No. 50, which caused his injury, was one of the lighter type of engines in use by the defendant company at that time. He said:

“ Engine 50 wouldn’t project over the sides any. It was a small engine. * * * On a small engine like 50 I think there would be about a foot between the engine and the push bar.”

As to what was done upon the occasion in question, he testified:

“ When I got out there that night, * * * if I recollect right, the engine was stuck so thatyou could not move it, and we moved it back to the south a ways to get a kind of run on it. It was necessary most of the time to get speed on it, * * * and it was necessary to put speed on. We would move it as fast as we could, and that would help it over these bad places.”

He further testified:

“ When I first took hold of the lever, I think we started north with the engine. We turned them usually any way that we could — sometimes one way and sometimes the other. We would go sometimes as far as we could and stop, and then turn and go the other way as far as we could.”

Frank Beyer, a witness for plaintiff on the former trial, testified, in part, as follows:

“Q. Well, now, you were standing then, or when you went out there, the engine was standing in sort of that condition (indicating)?
“A. Yes, sir.
“Q. Is that right?
“A. Yes, sir.
“ Q. And was it stuck there ?
“A. Yes, sir.
“Q. Well, what did you do first when you found the engine in that condition, stuck ? Now you just tell the jury what you did.
“A. Why, I think Mr. Rogers and his helper, whoever it was, got a bar and got it off from that place where it stuck. Of course, they moved it back you see, and—
“Q. Well, now, what did they do? Did they get on this side of the — get down on the east side of the table and pinch it back south ?
“A. Yes, sir; on the north side.
“Q. On the north side ?
“A. Yes; and pushed it toward the south.
“Q. And got it off from this—
“A. Why, the place where it was stuck.
“Q. Well, then, after you got it off from that, what did you do ?
“A. Well, then, we got a new hold on it, and tried it again.
“Q. And that is the time Mr. Connor got hurt ?
“A. Yes, sir.”

The engine was traveling in a northerly direction when plaintiff was hurt. We think the foregoing testimony clearly indicates that, while attempting to turn the engine to the north, it had become “stuck,” that thereupon it was turned a little way to the south “to get speed on it,” and then pushed as rapidly as possible towards the north. We have been unable to discover a single word of testimony in the former record from which an inference could be drawn that the engine stuck while being moved to the south, and therefore could not be further turned in that direction. We have not adverted to the testimony introduced on behalf of the defendant upon this point. We think that the testimony above quoted, together with the concession made by plaintiff’s counsel, clearly establishes the fact that upon the occasion in question the table would turn with equal facility in either direction. In our former opinion we held (and, after a reperusal of the record, we still think properly) that fact to be controlling of the issue.

The question, then, is presented, whether plaintiff should now be permitted to introduce testimony tending to establish the exact converse of that fact. We are constrained to hold that he may not do so. In Hamilton v. Frothingham, 71 Mich. 616 (40 N. W. 15), this court said:

“ Even if this were not so, the plaintiff cannot be permitted to take a position now wholly inconsistent with that taken on the former trials. The contract now claimed under is wholly inconsistent with that claimed upon the former trials. If this contract was made, then the one upon which the former recovery was had did not exist, and no recovery could have been had thereunder. If the contract was to pay all over $8,000, then an express contract to pay a certain and specific sum did not exist.
“ If such inconsistent positions were allowed to be taken in courts of justice, there would be no end to litigation. Parties finding that contracts upon which they have relied for recovery cannot be upheld in the courts are not permitted under the same pleadings and bills of particulars to retry their case upon an entirely different contract, and one entirely contradictory to the one first claimed under, even for the purpose of meeting the opinion of this court and squaring their case with it.”

Again in Humphrey v. Transportation Co., 115 Mich. 420 (73 N. W. 422), it is said:

“ It is well settled that a plaintiff cannot maintain inconsistent positions; that is, he cannot commence and prosecute a suit upon one theory, and then abandon that theory and adopt another entirely inconsistent with the first, when the assertion of the latter would positively negative the former.”

In Marquette, etc., R. Co. v. Marcott, 41 Mich. 433 (2 N. W. 795), Mr. Justice Graves, speaking for the court, said:

“The court must consider that the concession was in fact made as represented in the bill of exceptions, and as a consequence must hold that the plaintiff in error is not entitled to take any ground inconsistent with it.
“After submitting to the jury to have the case go one way or the other as they should find on consideration of the evidence that the company was or was not negligent in the particular respects charged, it is not competent to assume a discrepant position or claim to have been injured by rulings only bearing on points which the concession put out of controversy.”

See, also, Wetmore v. McDougall, 32 Mich. 276; Henry v. Quackenbush, 48 Mich. 415 (12 N. W. 634); Bassett v. Shepardson, 57 Mich. 428 (24 N. W. 182).

The case of Pelton v. Schmidt, 104 Mich. 345 (62 N. W. 552, 53 Am. St. Rep. 462), relied upon by plaintiff, has been examined with care. In that case the plaintiff upon the first trial testified that he had never been in the store from that way before the occasion of his injury. Upon the second trial he testified that it was his custom to go through to the clerk to get receipts, entering at the back door. Commenting upon this change in plaintiff’s testimony, Mr. Justice Hooker says:

“ Defendants’ counsel contend that the plaintiff is concluded by his former testimony, and that he should not be allowed to recover by reason of evidence flatly contradictory of his former testimony. Decisions of this court in cases brought here by writ of error are conclusive upon the parties, as far as the law is concerned, whenever the same state of facts is presented; but upon different facts other principles may apply. If parties change their testimony, the jury may properly consider the fact, but it is not for this court to say that a party must stand or fall by his former testimony, where there is any legitimate opportunity for a change in the testimony. It may, perhaps, be said that there was no such opportunity here; but, by ordering a new trial, this court relegated the subject to the jury.”

It may be said that this case is not in harmony with earlier decisions of this court. It is not necessary so to determine here. Admissions stand upon a different footing from that held by mere testimony. The jury hears the testimony, weighs it, and believes it or not, as the case may be, but a judicial admission made intelligently and with deliberation establishes the fact with reference to which it is made, and the jury must accept it as so established. 1 Greenleaf on Evidence, § 186, states the rule as follows:

"The admissions of attorneys of record bind their clients, in all matters relating to the progress and trial of the cause. But, to this end, they must be distinct and formal, or such as are termed solemn admissions, made for the express purpose of alleviating the stringency of some rule of practice, or of dispensing with the formal proof of some fact at the trial. In such cases, they are in general conclusive, and may be given in evidence, even upon a new trial” — citing cases.

See, also, 2 Chamberlayne on Evidence, § 1232 et seq.; 4 Wigmore on Evidence, § 2588 et seq., and cases cited.

In the case at bar the defendant was offering evidence to the effect that the table would turn as well one way as the other when the admission was made, thus doing away with the necessity for such evidence. It is possible that evidence available at the former trial upon this point might not be available at a subsequent hearing. In such case defendant, in accepting the admission in place of putting in the testimony, would be placed at a distinct disadvantage, if, upon a second trial, plaintiff were permitted to withdraw his admission and offer evidence at variance therewith.

We are of opinion that the learned circuit judge made a proper disposition of the case.

The judgment is affirmed.

Ostrander, C. J., and Steere, McAlvay, and Stone, JJ., concurred with Brooke, J.

Moore, J.

(dissenting). I cannot agree with the conclusion reached by Mr. Justice Brooke. It should not be forgotten that the result reached by this court is to be visited, not upon the lawyers employed in this case, but upon the parties to the litigation.

The record discloses that one of the counsel for plaintiff did not participate in the former trial until it had been in progress for a day or two. At about the time he began to participate in the trial, the question was put to a witness which led to what is now claimed to be an admission of so solemn a character as to preclude the plaintiff from showing the actual fact in relation to a material matter. Counsel both say they understood the question and the admission very differently from the interpretation given it by counsel for the defendant, and by the court upon the second trial.

We quote from the record:

Mr. Baldwin: I want to say here that, at the time of the claimed admissions that were made in reference to how this table was turned, I had no apprehension that those questions and those inquiries were directed at the engine in question and at the time in question, because Mr. Clark’s question didn’t point to this engine, or didn’t point to the time in question when Mr. Connor was hurt, but his question was whether they sometimes turned engines one way and another upon that table, and it misled me to believe that his inquiry was directed to the movement of that table generally. Now, that was the situation.
Mr. Smith: And that we want to show, too.
The Court: What other engine was under investigation on that turntable, except this one, at the time ?
“Mr. Baldwin: There was none, and, if he had simply said to me, or asked that question, directed his question to that engine, there wouldn’t have been any difficulty in this lawsuit, but he didn’t do it. He asked the question if they couldn’t turn engines generally both ways on that table, as the question itself shows from the record, and it misled me because I didn’t think that he meant the engine in question. If he had meant that he would have said: ‘ Is it true that engine No. 50 could be moved either way upon this table ? ’ But instead of doing that, and instead of applying to the case that was then being tried, he said: * Have you moved engines both ways upon this table ? ’ And that is what misled me, because that was true that they did move engines, some engines would move both ways, and some engines wouldn’t.”

Counsel are reputable practitioners of high character, and we have no doubt mean to state truly their understanding of the question and of the admission. If they do, then we think it cannot be said that they were so “ distinct and formal of such as are termed solemn admissions made for the express purpose of alleviating the stringency of some rule of practice,” etc., within the meaning of the authorities cited by Justice Brooke. We think what was said and done in the course of the other trial ought not to preclude the plaintiff from showing, if he can, the actual situation at the time his cause of action, if any, arose. I cannot distinguish the case in principle from Pelton v. Schmidt, 104 Mich. 345 (63 N. W. 552, 53 Am. St. Rep. 463), where Justice Hooker, speaking for the court, said:

Defendants’ counsel contend that the plaintiff is concluded by his former testimony, and that he should not be allowed to recover by reason of evidence flatly contradictory of his former testimony. Decisions of this court in cases brought here by writ of error are conclusive upon the parties, so far as the law is concerned, whenever the same state of facts is presented; but upon different facts other principles may apply. If parties change their testimony, the jury may properly consider the fact; but it is not for this court to say that a party must stand or fall by his former testimony, where there is any legitimate opportunity for a change in the testimony. It may, perhaps, be said that there was no such opportunity here, but by ordering a new trial this court relegated the subject to the jury.”

If I am right about this, it follows that the ease should be reversed, and a new trial ordered.

Blair, J. If the previous decisions of this court are opposed to the result reached by Justice Moore, I think they should not be followed, and I therefore concur in his opinion.

Bird, J., did not sit.


author: Brooke, J.

text:
    GUNTERMANN v. MICHIGAN CENTRAL RAILROAD CO.
    Railroads — Crossing Negligence — Contributory Negligence.
    The failure of the driver of a vehicle to hear the audible rumble of a fast train, hear its bell, or whistle, or to see a brilliantly lighted train, with a headlight burning, visible 370 feet away at a point 564 feet from the track, 530 feet away at a point 46-J- feet from the track, and 1,500 feet away at a point 26^ feet from the track, was contributory negligenoe, in the absence of evidence that he stopped, looked, and listened before crossing the right of way.

      Error to Bay; Collins, J.
    Submitted February 17, 1911.
    (Docket No. 92.)
    Resubmitted October 5, 1911.
    Decided December 29, 1911.
    Case by Mary A. Guntermann, administratrix of the estate of John W. F. Guntermann, deceased, against the Michigan Central Railroad Company for the unlawful killing of plaintiff’s decedent. Judgment for plaintiff. Defendant brings error.
    Reversed.

      Cooley & Hewitt (Humphrey, Grant & Baker, of counsel), for appellant.

      Be Vere Hall, for appellee.

       For various phases of question of duty to stop, look, and listen before crossing railroad tracks, see notes in 6 L. R. A. (N. S.) 150; 17 L. R. A. (N. S.) 505; 21 L. R A. (N. S.) 309.

   Brooke, J.

This is an action brought by Mary Guntermann, the widow and administratrix, for damages claimed to have accrued against the Michigan Central Railway Company for causing her husband’s death. John W. F. Guntermann was killed on September 1, 1908, at the Chestnut street crossing of said railroad, in the city of Bay City, Mich. The plaintiff recovered a verdict on which judgment was duly entered for the sum of $5,975, and the case is brought into this court by writ of error.

Chestnut avenue runs east from Chilson avenue to Wenona avenue, crossing Erie avenue at right angles and about midway between Chilson avenue and Wenona avenue. At the intersection of Chestnut avenue and Erie avenue the defendant road crosses these streets. The tracks run diagonally east of north and west of south. Mr. Guntermann was in a laundry wagon, going east on Chestnut avenue, when his wagon was struck by a northbound train. He received injuries from which he died in about five hours. The boy who was with him was also killed. It was the claim of plaintiff that the train was going 35 or 40 miles an hour; while the engineer and fireman testified it was going 15 or 20 miles an hour on a down grade with the steam shut off — drifting, as one of the witnesses called it.

Counsel are agreed that the only questions submitted to the jury were:

First. Was the defendant guilty of negligence in running its train across Chestnut street crossing at the time of the accident, at a speed faster than permitted by the ordinance of Bay City.
Second. Was the defendant guilty of neglect in failing to provide a crossing sign as required by statute at the Chestnut street crossing of the Michigan Central Rail? road.
Third. Has the plaintiff satisfied the jury by the evidence in this case that on the night in question, at the time of the happening of the accident, the decedent was not guilty of any negligence in approaching this crossing, which contributed to the injury causing his death.

Counsel for plaintiff insists that each of these questions was properly submitted, while counsel for defendant, with equal emphasis, insists they were improperly submitted, and that a verdict should have been directed for defendant. We find it necessary to consider the third question only.

The following facts are undisputed: For more than nine years plaintiff’s decedent had lived within one-half mile of the crossing upon which he met his death. The crossing was a level one; the defendant’s track being elevated about one foot above the street level. Decedent had crossed at this crossing going in the opposite direction within 20 minutes of the time he attempted to cross when he was killed. It was a very dark night. The engine which caused decedent’s death was equipped with a powerful headlight, which was lighted, and it was hauling a passenger train also brilliantly lighted. The rumble of the approaching train could be heard several blocks away. At a distance of 56] feet from defendant’s track, decedent had an unobstructed view of the approaching train for a distance of 370 feet. At a distance of 46] feet his view was unobstructed for 530 feet, and at a distance of 26] feet from the track he could have seen the approaching train 1,500 feet away. The engine whistle had been blown for the crossing. The bell upon the engine was ringing. There is no testimony that upon approaching the track plaintiff’s decedent stopped, looked, and listened for the approaching train. Under the facts disclosed, the presumption that decedent acted with due care is swept away, and he should be charged with such negligence as would preclude recovery by the plaintiff. Assuming that the horse was traveling at the rate of 4 miles per hour, and the train at 40 miles per hour, when decedent was 30 feet from the track, the train was but 300 feet away, approaching with its headlight burning, and its engine bell ringing. A verdict should have been directed for defendant under the following authorities: Mynning v. Railroad Co., 64 Mich. 93 (31 N. W. 147, 8 Am. St. Rep. 804); Freeman v. Railway Co., 74 Mich. 86 (41 N. W. 872, 3 L. R. A. 594); Underhill v. Railway Co., 81 Mich. 43 (45 N. W. 508); Apsey v. Railroad Co., 83 Mich. 432, 439, 440 (47 N. W. 319); Grostick v. Railroad Co., 90 Mich. 594 (51 N. W. 667); Shufelt v. Railroad Co., 96 Mich. 327 (55 N. W. 1013); Gardner v. Railroad Co., 97 Mich. 240 (56 N. W. 603); Phillips v. Railroad Co., 111 Mich. 274 (69 N. W. 496, 66 Am. St. Rep. 392); Stewart v. Railroad Co., 119 Mich. 91 (77 N. W. 643); Britton v. Railroad Co., 122 Mich. 359, 362 (81 N. W. 253); Hampel v. Railroad Co., 138 Mich. 1, 3 (100 N. W. 1002, 110 Am. St. Rep. 275); Strong v. Railway Co., 156 Mich. 66 (120 N. W. 683).

The judgment is reversed, and a new trial will be granted.

Ostrander, O. J., and Steere, Moore, McAlvay, Blair, and Stone, JJ., concurred.

Bird, J., did not sit.