and forethought that an uninterested bystander might manifest."

See, also, Mercer v. Railroad Co., 151 Mich. 566 (115 N. W. 733).

If defendant's witnesses are to be believed, the deceased was clearly guilty of contributory negligence; but the question is one which should have been submitted to the jury.

We are also of the opinion that the question of the defendant's gross or subsequent negligence should have been submitted to the jury. The motorman testified that the car was going 8 or 10 miles an hour, and that he could bring his car to a stop within 45 or 50 feet. While it may be said that a person merely standing in the devil's strip is not in such a position of peril as to oblige the motorman of a car to bring it under control, nevertheless the position of plaintiff's decedent in the devil's strip, the automobiles coming toward him from one direction, and the car coming from the other, taken together, did create a perilous situation, and if the motorman had seen him and the situation he was in, as he should have if a proper lookout had been kept, it was his duty to immediately get his car under control, and, if possible, avoid the accident which resulted. His failure to do so under these circumstances would warrant the jury in finding the defendant guilty of subsequent negligence, even if it should be found that the plaintiff's decedent was guilty of contributory negligence. Battishill v. Humphreys, 64 Mich. 514 (38 N. W. 581); Cooper v. Railway Co., 66 Mich. 261 (33 N. W. 306, 11 Am. St. Rep. 482); Schindler v. Railway Co., 87 Mich. 400, 405 (49 N. W. 670); Richter v. Harper, 95 Mich. 221, 225 (54 N. W. 768); Montgomery v. Railway Co., 103 Mich. 46, 52 (61 N. W. 543, 29 L. R. A. 287); Daniels v. Traction Co., 143 Mich. 493, 505 (107 N. W. 94); Bladecka v. Traction Co., 155

Mich. 253 (118 N. W. 963); Clark v. Traction Co., 167 Mich. 694, 697 (133 N. W. 927); Fike v. Railroad Co., 174 Mich. 167, 205 (140 N. W. 592); King v. Railway Co., 176 Mich. 645 (143 N. W. 36).

The judgment is reversed, and a new trial granted. MCALVAY, STONE, BIRD, and MOORE, JJ., concurred with KUHN, J.

BROOKE, C. J. (dissenting). I find myself unable to agree with the conclusions reached by my Brother KUHN in this case. Plaintiff's decedent was at the time of the accident 9 years and 3 months old. He was a boy of unusual intelligence, and had been in the habit of crossing Gratiot avenue at or near the point where he was injured for some time, and had been specially instructed by his father as to a safe method of crossing. He should be held guilty of contributory negligence as a matter of law, under the following decisions:

Ecliff v. Railway Co., 64 Mich. 196 (31 N. W. 180) ; in which case the boy killed was 12 years of age.

Trudell v. Railway Co., 126 Mich. 73 (85 N. W. 250, 53 L. R. A. 271), in which case the boy was 7 years and 4 months old. We there said:

"We think the court was in error in submitting either the proposition of defendant's negligence or the negligence of the boy to the jury. The verdict, under the circumstances, should have been directed in favor of the defendant. The testimony conclusively shows that this boy, while only a little over 7 years of age, knew and appreciated the danger there was in being on this track.”

Perego v. Railway Co., 158 Mich. 225 (122 N. W. 535). In this case the boy was 81⁄2 years old. Recovery was denied upon the ground that the contributory negligence of the boy was established as a matter of law.

Knickerbocker v. Railway Co., 167 Mich. 596 (133 N. W. 504). In this case the boy who lost his life was 10 years of age, and in denying recovery this court said:

"His intelligence and his ability to appreciate the danger which actually threatened, and to avoid it if seasonably discovered, cannot be questioned. He did not discover the actual danger."

Mollica v. Railway Co., 170 Mich. 96 (135 N. W. 927). In this case the child was 9 years and 6 months old. After describing the situation and circumstances surrounding the accident, the court there said:

"A glance in that direction, occupying but an instant, as he approached the danger zone where he stopped, would have informed him and saved his life; if seasonably discovered, he would have apprehended and avoided this danger as intelligently and quickly as any adult. He was old enough to know, and in the very nature of things did know, that where he stood was a dangerous place."

See, also, Gradyszewski v. Railway, 173 Mich. 13 (138 N. W. 225).

My Brother KUHN, without mentioning the foregoing cases, suggests that the contributory negligence of plaintiff's decedent should be held to be a question of fact for the determination of the jury, because just prior to the moment of injury the boy found himself in a position of peril and should not be held to so strict an obligation to care for his own safety as would otherwise be imposed upon him. This conclusion presupposes the fact that when he neared the track upon which the east-bound car was proceeding he was in a position of peril by reason of the automobiles approaching from the east. While one of the two little girls, witnesses for the plaintiff, described him at that moment as being in a pocket, an examination of their testimony discloses the fact that the automobiles were not directly upon the west-bound

track, but were straddling the northerly rail thereof. It is, I think, entirely obvious that a position upon the "devil's strip" itself is not one of imminent peril, when, as in the case at bar, no street car is approaching from the other direction. Indeed, a fullgrown man may stand in safety, by the exercise of care, between two cars as they pass each other. That is not the case here, however. There was an ample space between the approaching car, with which the plaintiff's decedent came in contact, and the oncoming automobiles, which, as before stated, were not running directly upon the west-bound track.

The case of Fehnrich v. Railroad Co., 87 Mich. 606 (49 N. W. 890), cited by my Brother KUHN, is, in my opinion, entirely inapplicable. In the case at bar, if plaintiff's decedent found himself in a perilous situation, he was there solely as the result of his own negligence. No negligent act on the part of the defendant had helped to create the situation. In the Fehnrich Case, I find that the plaintiff was injured upon a highway by an engine which was backed down upon him without either sounding a warning bell or whistle. The Fehnrich Case is predicated upon the decision of Strand v. Railway Co., 64 Mich. 216 (31 N. W. 184), where the plaintiff was injured in stepping off a railway train which had been started without allowing the passengers sufficient time to alight. Neither case has any application to the facts here under consideration.

With reference to the question of discovered negligence, or the doctrine of last chance, it would, perhaps, be sufficient to say that the declaration is not framed upon that theory. If it had been, I am of opinion that there is no room for the application of the doctrine in this case. Had the accident happened exactly as detailed by the plaintiff's witnesses, and the overwhelming weight of the evidence shows that it

did not so occur, and had the defendant's motorman seen the boy standing upon the "devil's strip," I am of opinion that the circuit judge was entirely correct in holding that this fact would impose upon him no duty to slacken the speed of his car. He would have a right to assume that plaintiff's decedent would maintain, if unable to cross in front of the oncoming car, a position of safety where he stood, or, if he deemed that too perilous, to step back a foot or two farther to the north. The motorman knew, as the boy must have known, that the automobiles could and would swerve to the north and leave ample room for the boy to stand in the position he had assumed.

Under the circumstances disclosed by this case, I am satisfied that à correct solution was reached by the learned trial judge, and that the verdict was properly directed.

The judgment should be affirmed.

OSTRANDER

and

BROOKE, C. J.

STEERE, JJ., concurred with

ON REHEARING.

PER CURIAM. In the opinion of Chief Justice BROOKE, it was said with reference to the question of discovered negligence that the declaration was not framed upon that theory. The question of the sufficiency of the declaration apparently was not raised in the court below, and the question of subsequent or discovered negligence, as applicable to this case, is discussed in briefs of counsel. "That the learned circuit judge considered the question as before him is very apparent from his charge to the jury, in which he said:

"There is another phase of law which has been suggested by the plaintiff in the case, what we call 'subsequent negligence,' that is, that duty that devolved upon a motorman in charge of a car, where he has

186 Mich.-2.