following request, presented by defendant, was refused:

"I charge you that it was the duty of the plaintiff, upon approaching this crossing, and after arriving at a point where he could see engines approaching, to stop, look both ways, and listen, before attempting to cross the tracks, and that failure to do any one of the three will bar his recovery."

In the case of Gardner v. Railroad Co., 97 Mich. 240 (56 N. W. 603), this court said:

"It was broad daylight, and, when within 5 feet of the north rail of the track, it is undisputed that the plaintiff could see 250 feet east along the main track. No one disputes that, if he had but looked, he certainly would have seen the train. It is evident, therefore, that he did not look, or, if he did, he saw the train, and carelessly attempted to cross in front of it; and in either case he was guilty of such negligence as to preclude a recovery."

See, also, Kwiotkowski v. Railway Co., 70 Mich. 549 (38 N. W. 463); Brady v. Railroad Co., 81 Mich. 616 (45 N. W. 1110); Grostick v. Railroad Co., 90 Mich. 594 (51 N. W. 667); McGee v. Railway Co., 102 Mich. 107 (60 N. W. 293, 26 L. R. A. 300, 47 Am. St. Rep. 507); Braudy v. Railway Co., 107 Mich. 100 (64 N. W. 1056); Lau v. Railway Co., 120 Mich. 115 (79 N. W. 13).

In Brady v. Railroad Co., supra, this court said:

"A person about to cross a railroad track is bound to recognize the danger, and to make use of the sense of hearing and sight to ascertain, before attempting to cross, whether a train is in dangerous proximity. If he neglects to do this, and ventures blindly upon the track, it must be at his own risk; and such conduct should be pronounced negligence by the courts, as matter of law."

So, taking the plaintiff's own theory of the case and viewing all of the evidence in the light most favorable

to him, it is apparent that he proceeded from behind this claimed obstruction to his view, under such circumstances and with such knowledge of the situation, that his conduct was negligence as matter of law. That his injury could have been avoided cannot be doubted from his own statement. If the trial court was correct, and we think it was, that plaintiff's own version of this accident clearly showed his own negligence, had he been an adult, the only remaining question is whether or not the fact of plaintiff's age, 9 years and 6 months, in view of his undisputed appreciation of the danger, understanding of the situation and general conditions, can excuse his conduct, which would clearly have been negligence in an adult under the same circumstances. It seems to us that the following cases in this court are conclusive upon that subject: Ecliff v. Railway Co., 64 Mich. 196 (31 N. W. 180); Henderson v. Railway Co., 116 Mich. 368 (74 N. W. 525); Trudell v. Railway Co., 126 Mich. 73 (85 N. W. 250, 53 L. R. A. 271); Perego v. Railway Co., 158 Mich. 225 (122 N. W. 535); Knickerbocker v. Railway Co., 167 Mich. 596 (133 N. W. 504); Zoltovski v. Gzella, 159 Mich. 620 (124 N. W. 527, 26 L. R. A. [N. S.] 435, 134 Am. St. Rep. 752).

In the case last above cited the plaintiff, a boy about 13 years old, while playing, ran across the street without looking for any vehicle which might be coming, and was injured by an automobile driven by the defendant. Justice HOOKER said:

"Was it contributory negligence in a 13 year old boy to become so engrossed in play as to run across a city street and immediately in front of an approaching automobile without thought to look to see whether such a machine or any other vehicle was approaching? In Henderson v. Railway Co., 116 Mich. 368 (74 N. W. 525), an 8 year old boy ran into the front end of a street car. In that case his view was more or less obstructed by a coal wagon or another car going in a di

rection opposite to that of the car that he ran into, and which wagon or car he ran behind in his approach to the track. Mr. Justice MONTGOMERY said:

"It was but common prudence in crossing such a thoroughfare to look, not only for the car, but for any vehicle which might be coming. Injury would have occurred from collision with an ordinary wagon just as surely as from running into this car, and from the testimony of the lad himself he had intelligence enough at the time to know this. Why, then, should it be left for the jury to say that he had not?'

"See, also, Ecliff v. Railway Co., 64 Mich. 203 [31 N. W. 180].

"While the injury to this child necessarily arouses the sympathy of all observers, it does not warrant the imposition of damages upon one who is not shown to have been blamable in the premises. A verdict in this case would be, as the judge well said, a bestowal by the jury of 'charity from another man's pocket.'

See, also, Gibbs v. Dayton, 166 Mich. 263 (131 N. W. 544); Mollica v. Railroad Co., 170 Mich. 96 (135 N. W. 927); Harris v. Crawley, 170 Mich. 381 (136 N. W. 356); Weil v. Railway, 186 Mich. 614 (52 N. W. 959); Otto v. Railroad Co., post, 463 (155 N. W. 457).

This question was raised properly, and in our opinion is conclusive of the case. It is unnecessary to discuss any other questions involved.

The judgment of the circuit court is reversed, and no new trial will be granted.

BROOKE, C. J., and PERSON, KUHN, OSTRANDER, BIRD, MOORE, and STEERE, JJ., concurred.

On account of an alleged defective ladder that gave way with plaintiff while he was helping to put out a fire on defendant's premises, whither he had been drawn out of curiosity upon hearing the fire alarm, no recovery for injuries sustained in rendering such voluntary aid to defendant would be authorized. Plaintiff should not have been permitted to go to the jury, in the absence of any contract of hiring between the parties averred in the pleadings or shown by the proofs, and merely upon the theory that he was obeying orders of the superintendent of defendant's plant; the burden resting on an employee to prove the contract of employment relied upon.1

Error to Delta; Flannigan, J. Submitted October 11, 1915. (Docket No. 41.) Decided December 21,

1915.

Case by James Smedley against the Mashek Chemical & Iron Company for personal injuries. Judgment for plaintiff. Defendant brings error. Reversed; new trial refused.

Keena, Lightner, Oxtoby & Hanley, for appellant. N. C. Spencer, for appellee.

STONE, J. The facts in this case are very simple. At the time of the injury complained of, the plaintiff was in the employ of the Stephenson Charcoal & Iron Company at Wells, Delta county. Its plant adjoined the plant of the defendant company. On June 15, 1914, at 2 o'clock p. m., the plaintiff had finished his

'As to who is a volunteer, see note in 16 L. R. A. 861.

On the liability of master for injury to volunteer, see notes in 22 L. R. A. 664, 13 L. R. A. (N. S.) 561, 43 L. R. A. (N. S.) 187, L. R. A. 1915F, 1125.

work for the Stephenson Company and had gone home. He soon heard the fire whistle blow, and thinking there must be a big fire by the way they blew the whistlea general alarm-he went over to the defendant's plant, "through curiosity to see what was going on." At that time the fire was burning along the tracks of the defendant company, and along the charcoal cars, and the sawdust cars. Plaintiff walked around among where the men were working at different points of the fire, and finally went up to what appeared to be the worst place at the time-the fire in the sawdust cars alongside of the storage house-and he saw them taking the hose around there, and he testified: "We tried to put out the fire." Continuing, plaintiff testified:

"I saw a man by the name of Ballard, and Mr. Roberts. Ballard is the yard foreman, or at least a foreman of the Mashek Chemical Company, and I understood Mr. Roberts was general superintendent or superintendent of the Mashek Chemical & Iron Company. They motioned for me to come and take hold of the hose. Mr. Roberts motioned. I went and took hold and helped them for perhaps a half or three-quarters of an hour, as near as I can remember, at different points of the fire around the cars and engine house. Then they put a ladder up against one of the cars. I think, as near as I recall, Mr. Roberts did it, or at least some of the men that he told. I heard him tell them to put it up. It was put there to take the hose up. The sawdust was burning inside the car, and they wanted us to go up there, as I understood, and get on top of the sawdust, and wet it down around the edge of the car to keep the car from burning. Well, I was working. There was another gentleman ahead of me, and I was helping him drag the hose up there. We had been together, and I was waiting for him to go on up the ladder and started up the ladder with the nozzle of the hose. He went up the ladder at Mr. Roberts' direction. He went up the ladder to put water on the sawdust. I don't recall, now, who the man was. I wanted to let the man go up the ladder,

189 Mich.-5.