"Q. Had plenty of time to do it, did you not? "A. Yes, sir; if I proceeded.

"Q. Yes, yes, if you proceeded, that is right.

"A. No answer.

"Q. Instead of that, you misinterpreted the warning that was given you by somebody on the passenger train?

"A. Yes, sir.

"Q. Now, this was broad daylight?

"A. Yes, sir.

"Q. Nothing to prevent your seeing this engine move towards you if you had looked any time? "A. If I looked any time?

"Q. What?

"A. When I looked up it was coming onto me.

"Q. There was nothing to have prevented you from seeing it if you had looked any time, was there? "A. No.

"Q. No. You knew that as soon as that passenger train came along that that engine was going to start up?

"Mr. Rathbone: I object to it as having been asked and answered a good many times already, if the court please.

"The Court: I think it has been asked once or twice.

"Mr. Bray: I am asking it in a different connection, that is all.

"The Court: Very well, she may answer it.

"Q. Repeated.

"A. I did not think anything about its starting right away.

"Q. You have not answered the question. I would like to have you answer the question.

"A. I didn't know it would start right away.

"Q. You had seen it a great many times do that same thing, have you not?

"A. Not exactly the same thing.

"Q. But you knew it was standing there waiting for the passenger to clear the track?

"A. Certainly I did.

"Q. You knew it was going to start up some time very close to the time that that passenger train went by?

“A. I did not know how close; I presume it would start up because it was uncoupled.

"Q. You knew it was there for the purpose of waiting for that passenger train to clear the track? "A. Yes, sir; I did."

From these facts it appears conclusively that, assuming the direction of the fireman to have been given as claimed by her, she was not led into a position of danger thereby. Had she followed the instruction, she would have had ample time to reach a place of safety. Her failure to leave the track as she might have done, without haste, in obedience to that instruction, or her re-entry upon it without assuring herself that it was safe to do so, I believe, under the decisions of this court, were such acts as to compel us to say that she was guilty of contributory negligence as a matter of law. In taking the one or two steps backward as she said she did, and remaining standing upon the track without assuring herself that it was safe to do so, she certainly failed to use the most ordinary and necessary precaution for her own safety. The decisions of this court are very numerous to the effect that entering or remaining upon a railway track in a place of known danger, without first assuring oneself that it is safe to do so, is negligence as a matter of law. The question of defendant's negligence is therefore, in my opinion, unimportant. Whether the bell was rung or not, it would still be plaintiff's duty to use reasonable care for the protection of her own life and limb, and the warning which the ringing of the bell would have conveyed to her was one which she already had in the knowledge that the engine would start up immediately after the passenger train pulled out, and it appears to have been in motion before she was struck. The language used by this court in the case of Boutell v. Railroad Co., 133 Mich. 486 (95 N. W. 568), is peculiarly pertinent:

"He knew that the train was standing there when he left the power house, that it stopped only long enough to accommodate travelers in getting off and on, and that it was liable to start up any moment. The noise alone, even though the bell was not rung, was a sufficient warning to him. It was his duty to both listen and look. A turn of the head, which would require but a fraction of a second, would have shown him the train coming in close proximity to him. Instead of doing this, he stepped across the rail onto the track directly in front of the engine, which was approaching only a few feet from him. A railroad track itself is notice of danger. This being so, it is the duty of every one attempting to cross to use ordinary precautions for his own safety."

* *

See, also, Brinker v. Railroad Co., 121 Mich. 283 (80 N. W. 28); and Spaven v. Railroad Co., 130 Mich. 579 (90 N. W. 325).

It is said that the plaintiff had the right to rely upon the custom of the defendant to ring the bell. The exact effect of the defendant's negligence upon the duty of the plaintiff in the premises is well pointed out in Ellis v. Railroad Co., 169 Mass. 600 (48 N. E. 839), where it is said:

"While the raising of the gates justified the plaintiff in attempting to cross when he did, and while that fact, and the facts that no whistle was sounded and no bell was rung, are to be taken into consideration on the question of how much he must himself look and observe as he makes his way across, these circumstances do not excuse him from looking and listening and taking thought for his own safety. He cannot rely wholly upon them, and cannot recover without showing more, as to his own conduct, than that he so relied. * * * We are of opinion that, as matter of law, there was no evidence from which it could be found that the plaintiff himself exercised due care, and the verdict for defendant was rightly ordered."

I am of opinion that the motion made by defendant

for a directed verdict on the ground that plaintiff was guilty of contributory negligence as a matter of law should have been granted.

The judgment should be reversed, and a new trial granted.

MCALVAY, STONE, OSTRANDER, and STEERE, JJ., concurred with BROOKE, C. J.

KUHN, J. (dissenting). This is an action for injuries received in a railway crossing accident in the city of Flint at the intersection of Second street with the defendant's line of railway. At this point there are three tracks, the one farthest to the east being the main track, the one in the middle, about 24 feet distant, being the one on which the accident occurred.

On December 2, 1911, at about 1 o'clock p. m., a freight engine was standing across Second street on the middle track, its pilot about 10 feet south of the sidewalk on the north side of Second street, waiting for the regular passenger train to pass so that it might go over to the main track and take water. The plaintiff, who lives near the crossing and had crossed the tracks there many times, was going along Second street and walked onto the track on which the engine stood. It is her claim, supported by her testimony, that the fireman on this engine motioned for her to go ahead, and that as she was crossing the track some one on the passenger train, which was just then passing on the main track, motioned to her. Interpreting this as a warning, she stopped and stepped back, then looked around and saw the freight engine moving toward her, without ringing a bell or giving any other warning, and almost upon her, and before she could get clear of the track her left foot was caught and severed. It is further her claim, supported by testimony of other witnesses, that it was the custom of

the defendant for many years to ring bells on its engines standing on or close to Second street before starting, to warn persons who were passing in front of such engines, and that she knew of this custom and relied upon it on this occasion in crossing as she did.

The case being submitted to a jury, a verdict in the sum of $14,000 was found for the plaintiff, and judgment was entered thereon. A motion for a new trial made by defendant was refused. The case being removed to this court by writ of error, 164 assignments of error are urged. The following are the reasons urged by defendant's counsel for a reversal of the

case:

"(1) The plaintiff was guilty of contributory negligence as a matter of law.

"(2) The variance between the pleadings and the proofs.

"(3) The negligence of the defendant, if any, was not the proximate cause of the accident.

"(4) If the defendant was guilty of any negligence, the plaintiff was guilty of concurrent negligence which contributed to her injuries.

"(5) The verdict was against the weight of the evidence.

"(6) The verdict was excessive.

"(7) The suit was prosecuted in violation of the law.

"(8) The court erred in the charge as given.

"(9) The court erred in the admission and exclusion of testimony.

"(10) The improper argument of plaintiff's counsel to the jury."

The principal question argued in the briefs is whether the plaintiff was guilty of contributory negligence as a matter of law. It is claimed by defendant and testified to by witnesses that she stopped on the track and waited there for the passenger train to pass, and in doing this that she selected a dangerous position when there was sufficient room for her to have