its engines, over Mosher street crossing, in the city of Bay City, while plaintiff was crossing defendant's tracks, about 1 o'clock p. m. of that day. In the court below plaintiff had a verdict and judgment for $1,100, and the defendant has brought the case here for review upon a writ of error. At the time of the injury, plaintiff was 9 years and 6 months of age, and was attending the Corbin School in said city. He was a bright, intelligent boy. At the time, he was on his way to school with his younger brother, who was then about 8 years old. Plaintiff's home was some distance to the east of Mosher street crossing, and the Corbin School was six blocks to the west and south, the other side of the tracks; so that he could not go from his home to said school without crossing defendant's tracks. His home had been in the same place for 6 or 7 months. After he started, when school opened in the fall, he continued to go from his home to the school twice a day, going home for dinner, a part of the time going over the Mosher street crossing and part of the time over the State street crossing farther to the south and east. The Mosher street route was about a block the shorter. Plaintiff had crossed back and forth, just as he was doing on the day of the accident, many times, was entirely familiar with the surroundings, and had been warned by his mother concerning this particular crossing, before this day. Mosher street crossing is in West Bay City, some distance north of the West Bay City depot, and there were three sets of tracks of the defendant's railroad over it, running approximately northwest and southeast, with about 8 feet between each set of tracks, the most easterly being the north-bound track, the middle being the south-bound track, and the most westerly track being a siding. King street, lying east of the place of the injury, runs approximately north and south, and at right angles to Mosher street. The railroad tracks angle across both streets, and cross King street about 150 feet to the south of the Mosher street crossing, it being about 87 feet from the center of the intersection of the two streets to the most easterly rail on Mosher street, and about 107 feet from the same point to the most easterly rail on King street; and on that triangular piece of ground, bounded on the north by Mosher street, on the east by King street, and on the south and west by the railroad tracks, there is nothing except a pole upon which the sign "Railroad Crossing" is placed. The elevation of the tracks all along there is from 3 feet to 3 feet 6 inches higher than the elevation of King and Mosher streets at the point of their intersection, there being a rise in the grade of each street from the point of their intersection to the crossing of each with the tracks. The tracks run approximately straight for a considerable distance north of Mosher street, and perfectly straight for a distance of more than three blocks to the south, where there is a slight curve to the west, and all three of these tracks are used almost continuously for the operation of trains, backwards and forwards, between the yards and the depot. Mosher street runs approximately east and west, and is unpaved. Upon the day in question, some four blocks before reaching the crossing where the plaintiff was injured, he and his brother passed what is called the French School, and the schoolboys at that school threw snowballs at the plaintiff and his companion. The plaintiff and his brother threw snowballs back, and the boys from the French School began chasing the plaintiff and his brother, and chased them from the school up to the tracks, the boys following the plaintiff and his companion as far as King street, and some of them farther. Plaintiff testified that he ran up to the tracks and the boys were still behind him until he arrived at the tracks. The line of vision of a person approaching the tracks on Mosher street, after reaching the intersection of King and Mosher streets, is right down King street to the south, and a view of the tracks where they cross the east line of King street southerly of the center of Mosher street crossing was unobstructed. As a person proceeded west on Mosher street toward the tracks, the line of vision was across this open, triangular piece of ground. The only claimed obstruction to plaintiff's view was a bank of snow which extended about 6 or 7 feet east of the track, and to the south of the team track or traveled portion of the highway in Mosher street. Just prior to the accident an engine pulling some cars on the middle track ran over the Mosher street crossing at from 10 to 15 miles an hour, from the north toward the depot on the south; and the engine which struck the plaintiff, having pulled a train from Detroit to Bay City, and having left the coaches in the West Bay City coachyard, was proceeding north on the most easterly track at from 6 to 14 miles an hour to the roundhouse, running with the engine tender foremost. The noise of the approaching engine was distinctly heard by two of the plaintiff's witnesses, just prior to the accident, when they were from 50 to 100 feet farther from the engine than was the plaintiff. These two engines, the one running on the south-bound or center track from the north toward the depot, and the engine which caused the injury to the plaintiff running with the tender foremost from the depot toward the north on the north-bound, or most easterly track, passed each other just to the south of Mosher street crossing, or somewhere between that crossing and the King street crossing opposite this triangular piece of vacant land. The next street east of King street, and parallel with it, is State street, and the next street south of Mosher, and parallel with it, is Hart street. A synopsis of the testimony of plaintiff upon his direct examination will show what he claims to have been the facts. The plaintiff testified that on this occasion, on going back to school after dinner, he went down State street until he came to Mosher street, and then went down Mosher. He testified that there were three tracks at the Mosher street crossing; that he saw an engine on that occasion as he went toward the crossing, and that, as the engine passed him southerly, he was right by the edge of the snowbank, about 6 or 7 feet away from the track-easterly track; that engine went toward State street; that he stood there and waited until it went by, and then began to cross; that when the engine went over the crossing he watched it a rod or more, and then went across; that he couldn't see it go any farther than where he watched it, because of the snowbank; that he was on the south side of the road; that when he got to King street, from there on until the crossing was reached, there was no sidewalk on the north side of Mosher street, and so he went over on the middle of the road. He testified that he did not walk on the sidewalk on the south side because it was all snow banked up; that he stood while waiting there about in the wheel tracks, a little on the south side; that he saw no other engine coming at that time, and he started ahead. He did not hear any engine come, or any bell or whistle; that he did not see what struck him. The undisputed evidence shows that the plaintiff was struck and knocked down at that point by the northwest portion of the tender just as he was passing off the west rail of the east track, and was thrown to the west and outside the track. Upon the cross-examination of the plaintiff he testified: "Q. You crossed this crossing there on your way to school a lot of times, had you not? "A. Yes, sir. 189 Mich.-4. "Q. Going back and forth just as you were on this day? "A. Yes, sir. There were three tracks there. "Q. Had you ever seen trains going over there and had to wait for trains before? "A. Yes, sir. "Q. Did you very often have to do that? "A. Yes; quite often. "Q. How was it, are there lots of trains that go across the tracks there or only a few, "A. Oh, there is a few, but pretty nearly every time I went there I would have to wait. "Q. Pretty near every time you would go along there there would be a train around there somewhere, would there? On one of those three tracks? "A. Yes, sir. I didn't notice whether the trains ran on only one track or on all three tracks, but I remember seeing them on different tracks, not this particular day, but I mean any time. "Q. You do remember seeing them on different tracks? "A. Yes, sir. "Q. Sometimes they would be on one, and sometimes on the other? "A. Yes. "Q. Pretty near every day when you would go along there you would see a train on some track? "A. Yes, sir. "Q. Did you see trains run both ways there when going by, I don't mean this day, but when going to school there, would sometimes a train go one way and sometimes another? "A. Sometimes there was. And sometimes they would all be going one way. This crossing is about four blocks from the French School, * * * "Q. Had you ever noticed when you were going to school that an engine went up those tracks? "A. Yes, sir. "Q. Have you seen that engine before on some days, that is, an engine without any cars? "A. Yes, sir. "Q. When you went along Mosher street at about 1 o'clock on your way to school, did you almost always see that engine go by there? |