the peril to which travelers would be exposed who, with due care, were about to make the crossing, and in such a way as to give travelers an opportunity, by exercising due care and diligence, to meet and guard against the danger; and, if you find from all the evidence in this case that, under such circumstances, defendant did not exercise additional caution in approaching the crossing, then and in such case defendant would be guilty of negligence."

Read in connection with that part of the argument of counsel which has been quoted, no one is left in doubt concerning plaintiff's theory. I am impressed that no such theory as this is indicated in the declaration-a point, however, which is not made by appellant. Assuming that the declaration may support the verdict and judgment, and that facts sustaining the theory would support a finding of negligence on the part of defendant, the theory is not supported by facts. The train which caused the injury was usually late, passing through Gregory at different hours during the afternoon and evening without stopping. The passenger train, on the time of which the freight was running, was very often late. Upon these points there is no dispute. The fact that the train was a freight train running close to the announced or schedule time of the passenger train, that it was traveling at a high rate of speed, and that it did not stop at the station, are none of them necessarily evidence of negligence.

Gregory is a village of 175 people; its business places, few in number, being mostly south of the railroad. Its single business street is 78 feet wide. As has been stated, the station was 48 feet east of the street. There is then an open space of 192 feet along the track to the elevator, which stands 172 feet south of the south rail. The elevator was 8412 feet in length, east and west. East of it, 81⁄2 feet, is a coal shed 362 feet long, east and west, standing 18 feet

south of the south rail. East of this, 15 feet, is a freight depot 50% feet long, east and west, and 20 feet, north and south. Then, in this order, was a 90foot coal shed, the stockyard, the east fence of which was 691.5 feet from the center of the crossing, a tool shed 1,0522 feet east of the crossing, and the east crossing, which was 1,3502 feet from Main street. There are no buildings south of the station along the east line of the street for 174.5 feet, so that, looking easterly, or northeasterly, plaintiff's intestate could see, while traveling the most of this distance, the west end of the elevator. There was nothing about the traffic on this street to call for particular care on the part of defendant's servants, exciting them to do more than to give the crossing and station whistles and keep the bell ringing.

Plaintiff cites in the brief, and relies upon, Marcott v. Railroad Co., 47 Mich. 1 (10 N. W. 53); Battishill v. Humphreys, 64 Mich. 494 (31 N. W. 894); Guggenheim v. Railway Co., 66 Mich. 150 (33 N. W. 161); Klanowski v. Railway Co., 57 Mich. 525 (24 N. W. 801); Hagan v. Railroad Co., 86 Mich. 615 (49 N. W. 509); Morse v. Railway Co., 168 Mich. 99 (133 N. W. 935); Detroit, etc., R. Co. v. Van Steinburg, 17 Mich. 99; Huggett v. Erb, 182 Mich. 524 (148 N. W. 805). It is, no doubt, the rule that the rate of speed at which trains may be properlyprudently-operated depends upon circumstances. Speed which would be prudent in the open country would be imprudent, generally, in and over the streets of a city. And as people and animals do sometimes go upon railroad tracks, and sometimes find themselves in peril upon highway crossings, a lookout from the engine is necessary that disaster may be, as often as is possible, averted. Nor may one in plain view upon the tracks, especially if that one is an infant, be run down by a train, but the train must be oper

ated as the circumstances seem to require. Statutory signals must be given, and it is negligence not to give them. So much, in substance, and no more, the cases cited above hold to be the law.

A witness sworn for the plaintiff saw the plaintiff's intestate, whom he knew, and a boy who was with him, when the team was unhitched, and they got into the wagon. He stood by the side of the wagon and talked with Wood, the deceased. The witness heard the train (he was intending to take the passenger train) at about the time the team started. The train whistled, and the witness started diagonally across the street to the east side and followed the sidewalk north towards the railroad.

"I could hear the noise of the train," he says, "coming all the time after I struck the sidewalk, but could not see it. The train was right in front of the elevator when it whistled. I think it whistled more than once when it was right by the elevator. I couldn't say how many times. I didn't know it was a freight train up to that time. I continued on my way to the passenger house. I saw Mr. Wood after he and I parted. He was driving along the street towards the railroad. I couldn't say whether he or the boy were driving. When the train came by the elevator I think Mr. Wood's team was nearly on the track. By that I mean nearly on the rails. I heard the train whistle about the same time that I saw it by the elevator. I couldn't say whether there was any place where you could see the train or not before it got west of the elevator. I didn't see it before it got west of the elevator. About the same time I saw it I heard it whistle. At that time Mr. Wood's horses were nearly on the track. I couldn't tell exactly because I just glanced that way. I saw Mr. Wood stand up in the wagon as though he was trying to urge the team. I didn't watch it all the way, because I was looking first at him and then at the train. I was probably 50 feet from the railroad track. I saw the engine strike the wagon at the crossing. I think it struck about in the middle. I couldn't say how fast his team was going as he crossed over the track. From my experience in riding on trains

and automobiles and things of that character I have some judgment of the speed at which trains pass. I think this train was going at least 40 miles an hour. After it crossed Main street I should think it stopped a full train length west of the crossing. I saw both Mr. Wood and the Backus boy after the accident. I went directly up to the Main street crossing after the accident. I didn't see the team, but I saw the box part of the wagon. I noticed that more than anything else. It was south of the track and against it, on the west side of the street. It was over near the fence; that is, the fence down to the cattle guard. It was probably 20 feet south of the track. Mr. Wood was found, I should say, about 50 feet west from the crossing, maybe farther, maybe not quite so far. He was dead when found. The Backus boy was found on the pilot of the engine sitting up. He was dead when found. I took the passenger train that night for Jackson. The regular passenger train going to Jackson had not arrived at the station in Gregory when this freight train went through."

On cross-examination the witness testified:

"I think I was walking about 4 miles an hour. About the time I saw this train I heard it give a couple of blasts of the whistle. I think two, anyway. About the same time I got a report of the whistle I saw the reflection of the headlight as it came into view. The headlight on the engine was lighted. I observed the train part of the time as it came into view from the westerly end of the elevator. I was probably looking at the train and team both. I think I was paying attention to what was occurring there. I didn't do anything. There wasn't anything I could do. I couldn't say whether I called to Mr. Wood or not; I probably did. I couldn't say whether I said anything to him or not. About the time the train came from the east corner of the elevator Mr. Wood's horses were just going onto the track. I couldn't say whether they were right on the track or near to it. I was looking at them just after I observed the train come from the west end of the elevator. I saw Mr. Wood stand up in the wagon. He was standing up at the time I looked. I didn't observe him get up. "Q. What was he doing?

"A. He was trying to—just as though he was trying to urge his horses across the track.

"Q. Was it light enough so you could see that? "A. Yes, sir.

"Q. Did you see him strike his horses?

“A. Well, striking at them with something; I could see."

A witness for defendant testified,

"I am 51 years of age. I have lived in Gregory about 23 years now. I have been employed for the last few years as section hand for the Grand Trunk Railway Company. I was working for that company in the month of November, 1912. I have been working for them 5 years last fall. I am working for them now in the capacity of section man. I was in Lawrence McClear's meat market on the night of November 25, 1912, between the hours of 7 and 8 o'clock. That store is on the west side of Main street towards the extreme south end of the business portion of Gregory. It is next to the hardware. I don't remember now who else was in the store with me. I knew William R. Wood in his lifetime, and have seen Winfield Backus some few times that summer. I didn't see Mr. Wood or this Backus boy that night until after the accident. At the time I was in McClear's store I did not hear any noise or signal which was given by an approaching train. I live 80 rods east of the crossing, in the village of Gregory. That would practically bring me down to what has been called in this record the east crossing. I live 18 rods from this east crossing. I live across the street from George Meabon. In going from my home to the business part of the village of Gregory, and coming from the business part of the village back to my home, I usually go down the walk to the railroad, down the railroad home; that is, down the walk to Main street to the depot, then east on the right of way to the east crossing, then south to my home. On this night in question I had started home before I heard any train. I didn't hear or didn't notice any train until I got within probably 60 feet of the railroad. Up to this time I hadn't seen Mr. Wood or this boy. When I got to this place I heard the train whistle. I could see it as I looked up. It was just about at the stockyards. All I heard was