tion with it, which he was anxious to resume. In those things he was faithful unto death. It is no extravagance of eulogy to say of him that this Commonwealth never had a truer, more conscientious and faithful servant, nor one who in the performance of the duties of his office, more constantly and firmly stood for the right as he saw it. In behalf of the court it is a gratification to receive and accept this strikingly natural and elegant portrait of our former associate, so thoughtfully and fittingly presented by the bar of this State, and to respond with appreciation and sincere approval to all that has been said in its presentation. The memorials which have been offered and the encomiums pronounced here, so far as available, will be made records of this court and published in its Reports. OCTOBER TERM, 1912.* GOOD ROADS CONSTRUCTION CO. v. PORT HURON, ST. CLAIR & MARINE CITY RAILWAY CO. 1. HIGHWAYS AND STREETS-STEAM ROLLER-MOTOR VEHICLESNEGLIGENCE-STATUTES-CONTRIBUTORY NEGLIGENCE. Violation of the statute requiring steam engines, etc., operated on the public highways to send ahead a person to give warning of the approach of the vehicle, etc., constitutes contributory negligence, preventing the recovery of damages for injury done to a steam roller in a collision at a crossing of defendant electric railway company. Act No. 71, Pub. Acts 1903. 2 How. Stat. [2d Ed.] § 4235 (amending 2 Comp. Laws, § 5543). Except in case of a view of the premises by the jury, testimony relative to changes made at a crossing at which an accident occurred is inadmissible.' 3. TRIAL MISCONDUCT OF COUNSEL-SAVING QUESTIONS FOR RE VIEW. To review improper remarks of defendant's attorney on the trial of a negligence case, a request for a ruling or motion to reprimand counsel or take some other appropriate action is necessary. 4. NEGLIGENCE-NOTICE-PRIOR OCCURRENCES. It was not sufficient or competent evidence of notice to defendant that plaintiff's apparatus was liable to be caught and stop on the crossing so as to require the reduction of speed in running defendant's street cars, because on previous occasions the steam roller and other equipment had stopped on the tracks at the crossing and prevented the car from passing. *Continued from Vol. 172. 'The authorities on the question of the admissibility of evidence of condition, before and after accident, of property whose defects are alleged to have caused injury, are collated in a note in 32 L. R. A. (N. S.) 1084. 5. SAME GROSS NEGLIGENCE. The court correctly charged the jury that if they found defendant guilty of ordinary negligence only, not wilful or wanton and reckless conduct, their verdict must be for defendant, but that plaintiff might recover if defendant's motorman was guilty of gross negligence; that they might consider the testimony as to the distance at which the road roller could be seen by the motorman, the degree of curve in the track, the blowing of the whistle, the distance in which a car running 50 miles an hour could be stopped; that gross negligence meant intentional failure to perform a manifest duty in reckless disregard of the consequences as affecting the life or property of another, and implied, also, thoughtless disregard of consequences, without the exercise of any effort to avoid them. Error to St. Clair, McKay, J., presiding. Submitted October 17, 1912. (Docket No. 140.) Decided November 8, 1912. Case by the Good Roads Construction Company against the Port Huron, St. Clair & Marine City Railway Company for damages to plaintiff's machinery and property. Judgment for defendant. Plaintiff brings error. Affirmed. Burt D. Cady (Clifford W. Crandall and Frank R. Schell, of counsel), for appellant. P. H. Phillips (Joseph Walsh, of counsel), for appellee. STONE, J. This is an action to recover the value of the steam engine road roller belonging to the plaintiff, which it claims was struck and destroyed by a car of the defendant under the following circumstances: On September 14, 1909, the defendant was engaged in operating an interurban railway from Marine City to the city of Port Huron. Said railway crossed a public highway, running nearly east and west, situated in the township of Port Huron, St. Clair county, being the first highway north of a certain stop known as Greenwood on said railway. The location of the crossing and the distance |