The question involved is not a new one in this State. In Richmond v. Railway Co., 87 Mich. 374, Justice MORSE, in speaking for the court, said in part:

"We do not think from the testimony produced by the plaintiff that Sherwood could have seen the cars approaching from the south, after he left the crossing of the Lake Shore & Michigan Southern Railway, until he came within about 20 feet of the crossing. If he had looked then, he would have undoubtedly seen these cars in time to have stopped and avoided a collision. And it is pretty apparent-almost absolutely certain from the plaintiff's own showing-that he did not look south within said 20 feet, until his horse was upon the track.

"Whether he was negligent depends in a great measure upon whether or not he had a right to rely, under the circumstances, upon the absence of the flagman, and the lack of any signal of danger from him. "It is claimed by defendant's counsel that the obstruction of the view to the south, and the absence of the watchman from his post called upon Sherwood to have stopped, and looked and listened before he attempted to pass this crossing. This claim would be correct if at this street crossing no flagman had been stationed to give warning. But the testimony shows that a flagman had been kept at this point for three or four years, whose duty it was to signal by a flag in the street the approach of trains. It is not the law of this State that under all circumstances, it is absolutely necessary for a person approaching a railroad crossing to look both ways and to listen for approaching trains. It is generally required, but it is not a rule of universal application. Every case must depend upon its own circumstances, and it would be unreasonable to apply such rule, under all circumstances, without regard to the condition of things at the time. Cooper v. Railway Co., 66 Mich. 266. Nor is a traveler compelled, under all circumstances to stop before crossing, if his view is obstructed from one way. He is only required to take such precaution as an ordinarily prudent man would under like circumstances, and whether or not he did use such care is generally a question for the jury. See Guggenheim v. Railway Co., 66 Mich. 157, 158, and cases cited.

"Plaintiff's counsel contend that, it appearing that the defendant had stationed a flagman at this crossing, whose duty it was to warn parties about to cross of approaching trains, it was for the jury to say whether the deceased, in keeping his eyes directed to the flagman for the very purpose of observing a signal at the earliest moment that it could be given, was not exercising due care. They cite the following cases in support of this contention: French v. Railroad, 116 Mass. 537; Sweeny v. Railroad Co., 10 Allen (Mass.), 377; Chicago, etc., R. Co. v. Hutchinson, 120 Ill. 592 (11 N. E. 856); Pennsylvania Co. v. Stegemeier, 118 Ind. 305 (20 N. E. 843); Glushing v. Sharp, 96 N. Y. 676; Cleveland, etc., R. Co. v. Schneider, 45 Ohio St. 678 (17 N. E. 321); State v. Railroad Co., 80 Me. 444 (15 Atl. 39); Central Trust Co. v. Railway Co., 27 Fed. 159; Tyler v. Railroad Co., 137 Mass. 238; Pittsburgh, etc., R. Co. v. Yundt, 78 Ind. 373.

"The defendant asked the court to instruct the jury in substance, that the absence of the flagman from his post did not in the least excuse Sherwood from exercising his senses of sight and hearing to ascertain whether the train was approaching; and that, if the deceased Sherwood, by looking up the track in the direction of the approaching train, could have seen it in time to avoid the injury, his omission to do so was such negligence as would prevent plaintiff's recovery. This was refused, and it will be seen that the court left it to the jury to determine whether, under the circumstances, Sherwood had a right to rely and how far, upon the absence of the flagman from his post of duty, and the want of any signal of danger from such watchman, as an assurance of safety; and they were instructed that, if an ordinarily prudent man would have done the same as Sherwood did under the same circumstances the plaintiff could recover. I find no errors in the charge on the subject of negligence."

In Tobias v. Railroad Co., 103 Mich. 330, it was said:

"With these facts appearing plainly upon this record it is evident that the deceased, if he had looked,

might have seen the train in time to avoid the accident, and the fact that he drove upon the track would be conclusive evidence that he did not look; and the court should have directed the verdict in favor of the defendant, but for the question of the maintenance of an electric bell there. The court was expressly asked to charge upon this point, by the plaintiff's third request, that if the deceased did not know of any fault in the condition of the bell,. this fact might be taken into consideration, with other facts in the case, as bearing upon the question of deceased's contributory negligence. This request should have been given. It cannot be said that the deceased would have no right to rely upon the ringing of this electric bell to warn him of the approach of the train. If the electric bell had rung, it would have given him warning. That he expected it to ring might make him less cautious in looking for the coming of a train. The case is somewhat similar in principle to Richmond v. Railway Co., 87 Mich. 374. In that case it was said substantially that it was almost absolutely certain, from plaintiff's own showing, that he did not look south when within 20 feet of the tracks, and that whether he was negligent depended in a great measure upon whether or not he had a right to rely, under the circumstances, upon the absence of the flagman, and the lack of any signal of danger from him. The cases upon that question are collected, and upon the whole case it was held that the circumstances were such that it became a question for the jury whether the plaintiff was guilty of contributory negligence. So we think in this case. that under proper instructions from the court, that question should go to the jury, in connection with plaintiff's third request, which should have been given."

In the recent case of Coston v. Railroad Co., 201 Mich. at page 241, it is said:

"This intersection of the railways was on the main thoroughfare between Owosso and Corunna, the county seat of the county in which both were located. Defendant's line approached it from the south on a curve and crossed it diagonally; it was within the power of the railroad commission to make this order, and

when the system was installed with an alarm bell to give warning of an approaching train which all approaching the crossing could hear, it cannot be said that it was not intended to and did not mean anything to that portion of the public using the highway on foot or by private conveyance. Such warning bells are not required or customary at ordinary highway crossings and when installed are inevitably a notice to the general public that the ordinary means of warning at a highway crossing are inadequate for that particular place, which would naturally tend to divert the vigilance of those regularly using the highway from the ordinary methods of warning. This bell had been maintained by defendant at the crossing where the accident occurred for several years. How it came to be installed, the manner in which it operated, the extent to which it was kept in working order, deceased's knowledge of its condition and the extent to which he in the exercise of reasonable caution and prudence might and did rely upon it were, under the Tobias Case, questions for the jury."

In the instant case the testimony was very conflicting. Of the 19 written requests preferred by counsel for defendant, 14 were given. We have already seen that the trial judge gave a very long, general charge in which he attempted to cover every phase of the case. The parties had able counsel and the case was carefully tried. We find no reversible

error.

The judgment is affirmed, with costs to the plaintiff. BIRD, C. J., and OSTRANDER, STEERE, BROOKE, FELLOWS, STONE, and KUHN, JJ., concurred.

PEOPLE v. WHEATON.

CRIMINAL LAW-OPENING STATEMENT-PRIOR OFFENSE-EVIDENCE -CREDIBILITY OF WITNESS.

In a prosecution for hunting and trapping for game without a hunter's license, an assertion in the prosecutor's opening statement that defendant had been guilty of the same offense five days previously, and the admission of testimony of said offense, held, to be error, which was not cured by the court's instruction that said testimony was admitted solely as affecting defendant's credibility, since the statement was made and the testimony admitted before it was known that defendant would be a witness

Exceptions before judgment from Muskegon; Vanderwerp, J. Submitted June 12, 1919. (Docket No. 96.) Decided July 17, 1919.

George Wheaton was convicted of hunting and trapping without a license. Reversed.

Willard G. Turner, Jr., for appellant.

Alex. J. Groesbeck, Attorney General, Christian A. Broek, Prosecuting Attorney, and Harry W. Jackson, Assistant Prosecuting Attorney, for the people.

MOORE, J. This case is here on exceptions before sentence. The respondent was convicted of hunting and trapping for game without having a hunter's license, the hunting not being upon his own inclosed land. The alleged unlawful hunting and trapping is charged to have taken place on the 27th day of February, 1918.

We quote from the brief of counsel for respondent:

"The propositions urged for reversal are divided into four parts as follows: