Railroad Co., 64 N. Y. 129 (21 Am. Rep. 597); 1 Thompson on Negligence, § 615; Bouwmeester v. Railroad Co., 67 Mich. 87 (34 N. W. 414). The testimony was such that the jury might have found either way, that he did or did not have in view his master's business.

Much reliance is placed by defendant upon the case of Holler v. Ross, 68 N. J. Law, 324 (53 Atl. 472, 59 L. R. A. 943, 96 Am. St. Rep. 546), which is somewhat similar on the facts, to show that the question of the master's liability was one for the court, and not for the jury. The principal difference in the facts of that case and the present one is that the servant in the case cited had no authority to drive any one from the dock. The dock did not belong to his master. The servant's only duty was to guard his master's property located upon the dock by permission. In the present case the yards were owned by the master, and Burnett had been authorized to eject certain classes of persons therefrom. These facts in the case cited sustaining the distinction evidently had much weight with Mr. Justice Fort in reaching the conclusion which he did, that it was a question for the court, as he mentions them and comments thereon. One of his associates, Mr. Justice Pitney, dissented. But, even if the present case cannot be distinguished on the facts from the case cited, I am of the view that the facts in the latter one should have been submitted to the jury under the reasoning of the cases heretofore cited.

2. But it is contended that Burnett exceeded his authority given him by the defendant, and that in shooting the men he was acting in pursuance of some purpose of his own. It appears from the testimony that Burnett was placed in the yards and instructed to do certain things, namely, to put stragglers, suspicious persons, and persons having no business with the company out of the yards. He was authorized to eject such

people from the yards, but no instruction was given. him as to how much force he should use or in what way he should use it. Much was left to his discretion to decide when and under what circumstances persons were to be ejected and how and in what manner they were to be ejected. Under such authority, if in the discharge of his duty he "kind of lost his head" and went further and used more force than he was authorized to use, the master is liable. Rounds v. Railroad Co., 64 N. Y. 129 (21 Am. Rep. 597); Howe v. Newmarch, 12 Allen (Mass.), 49; Robards v. Pipe Co., 130 Ky. 380 (113 S. W. 429, 18 L. R. A. [N. S.] 923, 132 Am. St. Rep. 394).

In the last-mentioned case the rule was stated to be that:

"The master who puts the servant in the place of trust or responsibility, or commits to him the management of his business or the care of his property, is justly held responsible when the servant, through lack of judgment or discretion, or from infirmity of temper, or under the influence of passion aroused by the circumstances and the occasion, goes beyond the strict line of his duty or authority, and inflicts an unjustifiable injury upon another."

It was further said in this connection that:

"Furthermore, the law, under such circumstances, will not undertake to make any nice distinctions fixing with precision the line that separates the act of the servant from the act of the individual. When there is doubt, it will be resolved against the master, upon the ground that he set in motion the servant who committed the wrong.'

See, also, South Covington, etc., R. Co. v. Cleveland, 100 S. W. 283, 30 Ky. Law Rep. 1072, 11 L. R. A. (N. S.) 853; New Ellerslie Fishing Club v. Stewart, 123 Ky. 8 (93 S. W. 598, 9 L. R. A. [N. S.] 475; 1 Thompson on Negligence, §§ 554-563.

3. We think plaintiff was entitled to contradict the witness Burnett, either by himself, or by other witnesses. Act No. 307, Pub. Acts 1909, gives the party calling the witness the same rights in that respect as it would had defendant called the witness in its behalf. In view of the conclusions reached, the judgment must be reversed, and a new trial ordered.

STONE, MOORE, and STEERE, JJ., concurred with BIRD, J.

BROOKE, C. J., and KUHN and OSTRANDER, JJ., concurred in the result.

The late Justice MCALVAY took no part in this decision.

OTTO v. ANN ARBOR RAILROAD CO.

RAILROADS-CONTRIBUTORY NEGLIGENCE-CROSSINGS-ANIMALS. The failure on the part of a boy driving across a railroad track to look for a car, after he had reached a point 90 feet from the rails, barred a recovery for a horse killed, where he looked in one direction and then devoted his attention to the other side, and if he had turned to look again within 70 feet of the crossing he might have seen the approaching car, and where he was 12 years of age and knew the nature of the danger, etc.

Error to Washtenaw; Kinne, J. Submitted October 8, 1915. (Docket No. 27.) Decided December 22,

Case by Gustavus Otto against the Ann Arbor Railroad Company for the negligent killing of a horse. Judgment for plaintiff. Defendant brings error. Reversed; new trial denied.

Alexander L. Smith and Gustavus Ohlinger, for appellant.

Arthur Brown (E. R. Sunderland, of counsel), for appellee.

PERSON, J. In the township of Northfield, in Washtenaw county, the tracks of the Ann Arbor Railroad Company run in a northerly and southerly direction across a public highway running east and west, known as the Nannery road. On the afternoon of September 5, 1914, a horse owned by plaintiff, while being driven by plaintiff's son, Lawrence, was struck by one of the so-called gasoline cars operated on defendant's road and injured to such an extent that it had to be killed. This action is brought to recover the value of the horse.

The boy was approaching the railroad track from the west, and was very familiar with the crossing; his home being in the near vicinity. When he had come to within from 90 to 100 feet of the crossing, he slowed his horse down to a walk and looked north, but without seeing any car in that direction. He continued to approach the track, but from that time on confined his attention entirely to the south side of the highway. On that side the view was obscured by a field of standing corn and other obstructions, so that a car coming from the south could not be seen until the traveler had reached the railroad right of way. The boy says that it was because of these obstructions that he gave his attention entirely to the track on the south side. The car that struck the horse came from the north, and was not noticed by the boy until it had reached the cattle guards north of the highway. It was then

too late to prevent the horse from going upon the railroad track. The car hit the horse on the left front shoulder and broke its left front leg. From the point where the boy looked north, about 90 or 100 feet west of the railroad track, the view was somewhat obscured by trees and a fence with vines growing upon it; but, if the boy had again looked towards the north at any point within 70 feet of the track, the approaching car could have been plainly seen. On the railroad grounds, 40 rods north of the highway, was the whistling post, and a short distance beyond that the track went into a cut some 8 to 10 feet deep. South of the whistling post, and between that and the highway, was another shallower cut, but the car on the railroad track could have been plainly seen at any point within 30 rods of the highway.

The negligence charged against the defendant company was the failure of its servants to give warning of the car's approach by either sounding the whistle or ringing the bell; and this negligence was fully substantiated by the evidence, inasmuch as the defendant offered no proofs at the trial. The defense insisted upon is that the boy was guilty, upon his own showing, of contributory negligence in going upon the track without again looking north before doing so; and the court was requested to instruct the jury to that effect. This was refused; and the jury gave the plaintiff damages to the amount of $250.

The instruction requested should have been given. It is true that this boy driving the horse was some 3 months under 12 years of age; but from his own testimony it is clear that he understood the dangers in crossing the railroad track as well as any adult would have understood them. He lived nearby, and had made this crossing frequently, not only on foot, but driving as he was this day. He knew fully the necessity of

189 Mich.-30.