a point 196 feet from the highway crossing, from which point to the railroad grounds the view of the track to the east was obscured by buildings. At a point 32 feet from the track it again became visible, ordinarily, but there was evidence, and the jury found specially, that upon this occasion a long train of freight cars was standing upon an intervening siding, which made it impossible for plaintiff to see the track,-except a very small portion of it, which became momentarily visible as he crossed the line of the right of way,-until the side track was crossed, when the horses, if not the front wheels of the wagon, would be upon the defendant's main track. At a distance of half a mile east was a cut where, and beyond which, a train could not be seen. The plaintiff had a steady team, and approached this crossing after dark knowing that a fast train was due about this time. He watched for the train, and listened, as did also the boy, down to the point 40 or 50 feet from the track, where he saw that the freight cars prevented his seeing the road to the east. Two other vehicles crossed the track a short time before he reached it, the driver of one of which shouted to him to look out. It does not appear that he heard the warning, from which it is reasonable to suppose that this team was some distance ahead of him. The first carriage was said by one witness to have been several rods from the track when the accident occurred. There was proof tending to show that no bell was rung or whistle sounded, sufficient to justify the submission of these questions to the jury. Some witnesses testified to hearing the train. The ground was frozen, and the wagons made some noise. The plaintiff did not stop to listen at any point. As the horses stepped on the main track he noticed the light upon. them, and whipped them, but was struck and severely injured before he got quite across. From a verdict of $11,000 in plaintiff's favor the defendant appeals.

Counsel for defendant contend that the failure to stop and listen was contributory negligence, inasmuch as there was no point at which a train could be seen for the last 196 feet, except a very narrow space at the line of defendant's right of way, before the track was reached. The plaintiff said that his horses were walking part of the time, and trotting some, and it is perhaps a reasonable supposition that he was traveling about 3 or 4 miles an hour. The train is shown to have run from 45 to 60 miles an hour, or about 15 times as fast as he traveled, which would make about 3,000 feet for the train to 200 feet for the wagon,-about 300 feet more than half a mile that the train might travel after the plaintiff's view was obscured. So it is plain enough that, when the plaintiff passed behind the buildings, the train was not yet in sight, and unless we can say that it was reasonable for him to suppose he could get across before a train could cover the half mile from the cut, or because of the fact that teams ahead were crossing, it was negligent to attempt to cross without stopping to listen, under repeated decisions. Lake Shore & Mich. Southern R. R. Co. v. Miller, 25 Mich. 293; Brady v. Railroad Co., 81 Id. 616; Van Auken v. Railway Co., 96 Id. 307; Shufelt v. Railroad Co., 96 Id. 327; Mynning v. Railroad Co., 64 Id. 93. See, also, Kelly v. Railroad Co., 88 Mo. 534; Henze v. Railway Co., 71 Id. 636; Chase v. Railroad Co., 78 Me. 346; Aiken v. Railroad Co., 130 Penn. St. 380; Railroad Co. v. Beale, 73 Id. 504; Railroad Co. v. Heileman, 49 Id. 60; Greenwood v. Railroad Co., 124 Id. 572; Railway Co. v. Stommel, 126 Ind. 35; Merkle v. Railroad Co., 49 N. J. Law, 473; Railroad Co. v. Holmes, 3 Wash. Ter. 202. It is manifest that he was not justified in concluding that he could certainly go 196 feet and cross the track before a train could reach the crossing, for a traveler is never justified in such an assumption unless it be shown that he

has had an uninterrupted view of the track for so great a distance as to make it certain. The fact that the view was cut off called for increased caution upon the part of the plaintiff, and the case resolves itself to this question: Had he a right to disregard this duty by reason of the fact that the other teams preceded him across the track? If so, it is because he had a right to expect a warning under circumstances which would enable him to see or hear it in time to stop, or because the fact of such crossing would justify him in the belief that no train was But the plaintiff himself states that he neither saw Jenkins cross nor heard his warning. He did not know how far ahead of him he was, and was not paying any attention to him, because he was listening for the train. Thus it clearly appears that the crossing of Jenkins is not a factor in the case, which leaves it within the principle of the cases cited above. The jury should have been directed to render a verdict for the defendant.

near.

The judgment will therefore be reversed. No new trial will be ordered, as plaintiff's own testimony shows that he cannot recover.

MCGRATH, C. J., GRANT and MONTGOMERY, JJ., concurred with HOOKER, J. LONG, J., concurred in the result.

EDWARD O. AVERY V. DANIEL KNIGht and George H. BroEffle.

Witness-Use of memoranda-Evidence-Res judicata.

1. The mere fact that certain items, which a defendant testifies to having paid to the plaintiff on the claim sought to be enforced,

were included in the defendant's bill of particulars in a former suit brought by him against the plaintiff, will not warrant the assumption that the items were adjudicated in said suit, and an objection to the use by the defendant of the bill of particulars to refresh his memory as to said items while testifying in the latter suit, on the ground that the items had been adjudicated in the first suit, is untenable.

2. If the defendant is permitted to testify to said items with the aid of the bill of particulars, it is proper for the plaintiff, on rebuttal, to show by the record in the former suit that said items were adjudicated against the defendant, provided it further appears that such adjudication necessarily precluded the claim of the defendant that said items were payments upon the claim sought to be enforced by the plaintiff in the latter suit.

Error to Alpena. (Simpson, J., presiding.) Submitted on briefs January 19, 1894. Decided March 20, 1894.

Replevin. Plaintiff brings error. Reversed. The facts are stated in the opinion.

C. E. Williams, for appellant.
W. E. Depew, for defendants.

HOOKER, J. The undisputed evidence shows that defendant Knight, being the owner of a pile-driver which was in bad condition, had some dealings with the plaintiff, Avery, in relation to repairing it. Avery claims that in consideration of his paying some claims against the piledriver, and furnishing the necessary material and labor to repair it, defendant Knight sold it to him, with the understanding that he was to be allowed to operate it upon shares, which he did for several years, but never accounted with plaintiff, and paid him only $40 upon his share of the earnings. Knight denies that he ever sold the piledriver, and says that he paid the debts against it himself, and that, while he received some assistance from Avery in its repair, he never sold it to him, and if he executed any

instruments at all, which he does not believe he did, it was only by way of security for the advances, and that he had more than paid such claims by work which he had done for Avery before the commencement of this suit. Avery, having learned that Knight had sold an undivided onehalf interest in the pile-driver to the other defendant, made demand for the pile-driver, which being refused, he brought this action of replevin.

To maintain his defense, Knight testified that he had performed work for Avery since the pile-driver was rebuilt, and had made payments to him on the things that he furnished. A paper being handed to the witness by his counsel, he was allowed to use it to refresh his memory as to such items. Being asked what paper it was, his counsel answered that it was the bill of particulars from the former case, a statement which his counsel had made out on the typewriter of Knight's account, and that the witness had used it merely to refresh his memory. The following colloquy occurred:

"Mr. Williams: It is a bill of particulars in the former case?

"Mr. Depew: Yes, it is a statement from our account. "The Court: You don't offer this in evidence?

"Mr. Depew: No.

"The Court: I understand the witness is simply doing this to refresh his memory.

"Mr. Williams: Very well; I make an exception to the use of the paper by the witness, for the reason that all of the items and matters contained appear to have been matters and items that have been adjudicated between the parties by a former suit. It appears to be a bill of particulars filed in the case of Daniel Knight v. Edward 0. Avery.

"Mr. Depew: It never has been filed in any court.

"Mr. Williams: A case heretofore pending in this court, and containing the matters entirely that have been adjudicated therein.

"Mr. Turnbull: The only thing that witness gives from that, it is for the purpose of refreshing his memory