the plaintiff's property for taxation. Applying the rule cited above in the Island Mill Lumber Co. Case from Cooley on Taxation, it cannot be said that the State board of tax commissioners acted in "reckless disregard of duty, in opposition to what must necessarily be the judgment of all competent persons." In fixing the value of this mine the State board did use the information produced for it by disinterested experts of a high standing, in accordance with authority granted by an act of the legislature of this State. The figure arrived at may possibly have been in fact too high or too low, but Mr. Shields, one of the commissioners, who himself had charge of the review, and was familiar with the development of iron mines on the Gogebic range and its ore formation, we are convinced, acted honestly, fairly, and in good faith upon all the information he had at hand, and made a proper and legal assessment in fixing the value of plaintiff's mine in the way that he did.

The claim is also made, as was made in the Newport Case, supra, that the value of one class of property-mining property-was raised and the values of other classes of property known to be undervalued were not raised, and that such intentional inequality of assessment constitutes fraud and invalidates the tax. This is based largely upon claimed admissions of Mr. Shields of his knowledge of the undervaluation of other property in the State and in that locality, and the fact that great increases were made in the assessment of other than mining property in the year 1912.

An examination of the evidence in this record is convincing that the business of the defendant township depended almost entirely upon the mining business, and the mine of the plaintiff company, which was one of the largest mines in the township, in 1911 was assessed at the small sum of $65,000, although

plaintiff now admits that it is reasonably worth the sum of $450,000. People, generally, at least, did not know the extent of the ore deposits, and it appears that business was dull. It further appears that after the report of the Finlay appraisal was made public, disclosing the value and the long life of the mines in the township, business conditions in the village and township of Wakefield became better and the values of property increased. These changed conditions, it may be said, at least in part, accounted for the increased assessments in 1912, and, as in the Newport Case, we are in the instant case unable to find any specific data in this record to sustain the conclusion that the nonmining property in the defendant township was not assessed relatively as high in 1911 as was the mining property.

We are convinced that the trial judge arrived at the proper conclusion in directing a verdict for the defendant upon this record, and the judgment is therefore affirmed.

BROOKE, C. J., and MCALVAY, STONE, OSTRANDER, BIRD, MOORE, and STEERE, JJ., concurred.

MILLETTE v. DETROIT UNITED RAILWAY.

1. STREET RAILROADS-HIGHWAYS AND STREETS-CROSSING TRACKS -NEGLIGENCE.

The driver of a coal wagon containing about 4 tons of coal was not chargeable with contributory negligence in crossing defendant's street car track with his team and vehicle when it appeared that he stopped about 30 feet from the

track and observed a car approaching about 400 feet away, which made a stop at the nearest crossing before it collided with plaintiff's rig, and that plaintiff believed he had time to cross before the car could reach the crossing.1

2. SAME

DECLARATION-PLEADING-WANT

CLEAR CHANCE.

OF

NEGLIGENCE-LAST

Plaintiff's declaration charging that defendant wilfully, wantonly and maliciously ran its car with great violence into the wagon in which he was riding sufficiently charged gross negligence and authorized the court in submitting to the jury the question whether the motorman might have stopped the car in time to avoid running down the plaintiff."

3. SAME ORDINANCE-EVIDENCE-PLEADING.

Although a municipal ordinance, to be available for the purpose of proving negligence, should be pleaded, an ordinance of the city of Detroit limiting the speed of cars to 15 miles per hour was not improperly received as affecting the question of plaintiff's contributory negli gence.3

4. DAMAGES - - PERSONAL INJURIES STREET RAILWAYS-MEASURE OF DAMAGES-EMPLOYMENT.

Where plaintiff was employed as driver of a coal wagon at the time of his injury, but introduced evidence tending to show that his usual occupation was that of a brakeman, and that he had made application for a position as brakeman, at that time, the measure of his damages was not confined to the loss which he would have incurred in the business in which he was temporarily engaged; he was entitled to recover for injury to his earning capacity as brakeman.

5. EVIDENCE-WITNESSES-SPEED OF CARS-EXPERT TESTIMONY. In an action for personal injuries sustained in a collision with a street car, the plaintiff was rightly permitted to 'As to the right of driver of vehicle to assume that motorman will give him time to cross the track, see note in 5 L. R. A. (N. S.) 1081.

As to operation of street car at speed in excess of that prescribed by ordinance as negligence or evidence of negligence, see note in 8 L. R. A. (N. S.) 1093.

As to sufficiency of general allegation of negligence, see note in 59 L. R. A. 238.

testify to the speed of the street car by which he was injured, where the foundation was laid by showing that he had been a brakeman for nearly 15 years, and he had ridden with motormen on street cars, and had observed the operation and stopping of cars; and a witness who had driven a moving van in the city for about 20 years and ridden in cars almost daily and observed their speed at different times qualified to give his opinion as to the rate of speed.

Error to Wayne; Hosmer, J. Submitted June 18, 1914. (Docket No. 106.) Decided. June 14, 1915.

Case by Alphonse Millette against the Detroit United Railway for personal injuries. Judgment for plaintiff. Defendant brings error. Affirmed.

Corliss, Leete & Moody and A. B. Hall, for appellant.

Maxwell W. Benjamin, for appellee.

BIRD, J. Plaintiff and his companion were seated on a wagon load of coal, weighing about four tons, going north on Second avenue in the city of Detroit. When they reached a point about 30 feet south of defendant's north track, they stopped the team and made observations. To the west the way was clear, but a car was seen approaching from the east a block and a half away, or between 400 and 500 feet. Plaintiff started his team across. The car stopped at Elizabeth street a block away, and then came on rapidly. Plaintiff was delayed somewhat in crossing by reason of the slipping of his horses on the damp pavement. When it began to look as though the wagon was not going to clear, the companion of plaintiff waved his hand to the motorman, who was then in the middle of the block, to slow down. The motorman did not heed the warning, but turned on more power and increased the speed of the car, and collided with the front wheel

of plaintiff's wagon, shoving the wagon along the pavement about 50 feet, when the fuse blew out and the car stopped. Plaintiff was thrown from his wagon and injured, and the jury fixed his compensation at $2,500. The defendant offered no testimony, and does not dispute its own negligence, but relies upon the contributory negligence of the plaintiff and the defects in his case to defeat a recovery.

1. For plaintiff to attempt to cross the tracks ahead of the car, under the conditions as they existed at the time he made his observations, was not negligence upon his part as a matter of law. Seebach v. Railways Co., 177 Mich. 1 (142 N. W. 1086), and cases cited. His observations led him to believe that he had time to cross the tracks before the car would reach that point. His horses did get across, and it is quite likely the wagon would have cleared, had his horses not slipped, and had the motorman decreased the speed of the car, instead of increasing it.

2. After the jury had deliberated for a time, they returned and submitted to the court the following question:

"If the plaintiff was careless or negligent in attempting to cross the track, and then, after doing so, he could see far on the track, that the motorman had had notice of the obstruction, but failed to stop the car, although he could and might have done so, is the plaintiff entitled to damages?"

The trial court instructed them again, in substance, as he had theretofore instructed them, that:

"Gentlemen, I charge you, in case that happened, and the motorman had the ability and could have stopped the car, but carelessly and negligently failed to do so, and ran down on the plaintiff, that the company is liable."

This instruction is assigned as error, for the reason that the declaration did not count upon the subsequent negligence of the defendant. An examination