deceased negativing the existence of the contract, and also what is said about the conduct of complainant and the conversation of the parties at the probate office at the time of reading the will, and the claim that complainant did not at that time claim the existence of any such contract. And the further argument that complainant permitted the real estate in question to be appraised as a part of the assets of the estate and negotiated for its purchase. There was hardly an important issue in the case in which there was not a sharp conflict in the testimony. It would profit no one to recite the testimony given in the case in detail. The complainant offered 26 witnesses in his behalf. Their testimony tended very strongly to make the case claimed by the complainant.

The defendant had five witnesses, all of whom, except one, had an interest in the litigation. 36 Cyc., at page 674, reads in part as follows:

"Care of Aged Person. A contract to care for, give personal attention to, and make a home for an aged person, whether a relative or a stranger, in return for a promise of a testamentary gift or devise, is a common form of such contract. If the performance of the contract involved the abandonment by plaintiff of his previous business or home, his equity is so much the stronger "citing many cases.

In the first note occurs the following:

"There are some services that are incapable of valuation in money; as to these the law permits individuals to make their own contracts. Old age is naturally repulsive. The hair grows gray, the eyes sunken, the skin wrinkled and brown, the flesh shrunken, the figure bent, the limbs weak and trembling, the will feeble, the tongue garrulous, the mouth toothless, the mind wandering, the habits careless and filthy, accompanied oftentimes with loathsome diseases needing all the care and attention of childhood without its purity, loveliness, and affection as a compensation. To meet this condition of life a kind providence has ordinarily provided the ties of blood and marriage and parental, fraternal, and filial affection with their reciprocal duties and obligations of mutual care and support, etc.

Bryson v. McShane, 48 W. Va. 126, 130 (35 S. E. 848, 49 L. R. A. 527); Best v. Gralapp, 69 Neb. 811 (96 N. W. 641, 99 N. W. 837); Vreeland v. Vreeland, 53 N. J. Eq. 387 (32 Atl. 3). It is not essential, however, that the performance should involve a pecuniary sacrifice on plaintiff's part; the fact that he was previously in humble circumstances, so that the position was in itself advantageous, is not sufficient to warrant denial of relief. Berg v. Moreau, 199 Mo. 416, 438 (97 S. W. 901 [9 L. R. A. (N. S.) 157])."

At page 676 occurs the following:

"Duration of Services. It is immaterial that the services, on account of the death of the promisor, lasted only a few months instead of many years. But an agreement to make a testamentary gift in consideration of services will not be enforced until the services have been fully performed."

The questions involved are not new in this State. See Lamb v. Hinman, 46 Mich. 112 (6 N. W. 675, 8 N. W. 709); Welch v. Whelpley, 62 Mich. 15 (28 N. W. 744, 4 Am. St. Rep. 810); Pike v. Pike, 121 Mich. 170 (80 N. W. 5, 80 Am. St. Rep. 488), and the many cases there cited; Ruch v. Ruch, 159 Mich. 231 (124 N. W. 52); Root v. Snyder, 161 Mich. 200 (126 N. W. 206), and the many cases there cited. If we apply the principles of law to the testimony in this case, we think the trial court was quite right in finding that complainant had established his case.

The decree should be affirmed, with costs.

ROHLFS v. TOWNSHIP OF FAIRGROVE.

1. NEGLIGENCE-HIGHWAYS AND STREETS-BURDEN OF PROOF. It is fundamental, in all actions for negligence, that the plaintiff has the burden of showing that he was free from contributory negligence: and in considering that question as an issue of law, the testimony of plaintiff and his witnesses is to be taken as true and construed in the light most favorable to plaintiff.1

2. HIGHWAYS AND STREETS-CONTRIBUTORY NEGLIGENCE-NOTICE. It is not contributory negligence, as matter of law, to travel on a defective highway in the night, with knowledge of the danger; but having such knowledge, it is the duty of the traveler to govern himself accordingly, and to exercise such caution as an ordinarily prudent man, having like knowl. edge, would exercise under the same circumstances.

3. SAME-DANGEROUS WAY.

To adopt the more dangerous of two known ways of doing a particular thing, because it is more convenient than the safer way, is contributory negligence.

4. SAME.

Where plaintiff was driving along a highway approaching a culvert, at which washouts had occurred, narrowing the traveled portion of the road and rendering the place highly dangerous, as plaintiff, who lived near at hand, knew very well, and he drove along the highway without getting out of his vehicle, or making use of a lighted lantern that he had with him, and was injured by falling into a washout, he was guilty of negligence, barring his recovery for the negligence of the township in suffering the highway to remain in a defective condition.

5. SAME.

Without some proof that he did not know the exact location or

nature of the defects, or, knowing them, was taking every precaution to get by them safely, or that fright of his team, storm, sickness in his family, haste to reach home, or some other distracting anxiety, or even temporary forgetfulness of the danger, diverted his attention from it, plaintiff must be held to have been negligent.

Contributory negligence as affecting liability of municipal corporations for defects and obstructions in streets, see note in 21 L. R. A. (N. S.) 614.

Error to Tuscola; Beach, J. Submitted October 15, 1912. (Docket No. 64.) Decided April 8, 1913.

Case by Diedrich H. Rohlis against the township of Fairgrove for personal injuries. Judgment for plaintiff. Defendant brings error. Reversed; new trial refused.

Quinn, Wixson & Quinn, for appellant.

H. H. Smith, for appellee.

STEERE, J. This action was brought to recover damages for injuries alleged to have resulted from an accident occasioned by a defective highway in the defendant township of Fairgrove.

Plaintiff recovered a verdict and judgment in the circuit court of Tuscola county, and defendant has removed the proceedings to this court for review, chiefly upon the ground that the undisputed testimony clearly establishes, as a matter of law, that plaintiff was guilty of contributory negligence, and a verdict should therefore have been directed for defendant.

It is conceded by defendant's counsel that plaintiff's testimony was sufficient to clearly raise an issue for the jury upon the negligence of defendant in not maintaining the highway in question in a reasonably safe condition for travel at the point where the accident is alleged to have occurred; but, regardless of that issue, it is contended that plaintiff was perfectly familiar with the locality and its condition, and by his own testimony discloses such contributory carelessness at the time and place of the accident as to preclude recovery.

Plaintiff, a farmer, 41 years of age, is a resident of Fairgrove township, Tuscola county, where he has spent most of his life. His home at the time of the accident in question was on his farm, situated about 4 miles east of the village of Fairgrove on a public highway extending from said village to and beyond his home. A culvert or bridge with cement abutments and plank floor, between

five and six feet wide, with no railings on the sides, crossed this highway at a point about one-half mile west of his home and four miles east of the village. It spanned a county ditch which, running along the north side of the highway from the west, crossed to the south side at that point, continuing on to the east along the south side of this highway. At the angles where the ditch turned in crossing, the water had washed out the earth, enlarging the channel so as to form what the witnesses called "holes" on each side of the road at each end of the culvert; the one on the south side being deepest and largest. The ditch at the south end and east side of the culvert was between six and eight feet deep. This hole or washout at the southeast corner of the culvert extended from the face of the abutment into the wrought portion of the road 3 feet 9 inches, and easterly 6 or 8 feet, dropping down 18 inches from the top of the cement at the east edge of the culvert, and inclining thence to the bottom; the water being about 3 feet deep. There was also a hole at the northeast corner of the culvert which extended into the roadbed about 3 feet, but it was not as deep or as long as the one on the south. There was also a defect at the northwest corner of the culvert of less magnitude, but which had worn into the roadbed, and narrowed it so as to interfere somewhat with travel over the bridge in a straight line. The result of these conditions was to narrow the driveway as it led onto the bridge in both directions, and to throw the safe portions of the opposite approaches out of alignment. To safely drive upon the bridge from the west, it was advisable, if not actually necessary, to keep or swing to the southerly side of the approach to avoid the defect on the north side where the water had eaten into the roadway, and in going off the bridge to the east it was necessary to straighten back and curve to the north to avoid the larger hole worn into the roadway from the south, at the same time guarding against the hole at the northeast. To pass directly along the roadway the margin of safety was small; the width