* * *

Dr.

garden, and some men were picking him up. I went along with him over to Mr. Hadley's. Keller looked after him.

It was struck

"I saw the car after the accident. over the right hand wheels, towards the rear end. From the time I started to crank my car and start it home, I did not hear any signal from a train, whistle, bell, or anything else. There was nothing I know of to prevent my hearing it. As we proceeded south down Saginaw street, I think we were about in the middle of the highway."

On the cross-examination he testified:

"The south end of my car at the time I started to go south across the track was about 45 or 50 feet north of the track.

"Q. And at that time and before you started, did you see this box car standing there at your right? "A. No, sir.

"Q. How near the track did you get when you discovered that box car standing at your right?

"A. Pretty close to the track.

"Q. Is that right, the east end of the box car would be east of the east side of Seeley's coal shed?

"A. I believe it was. I didn't take any particular notice to see how far the box car projected east of the coal shed. I saw the box car; I knew it was there when I was about ready to cross the tracks. We drove up very slowly for about forty feet. My engine was running all the time after I cranked it up, up to the time of the collision. It made some noise. As we came up there just north of the box car, we went along very slowly, came almost to a stop. When we got by the box car we looked to the west.

"Q. When you got by the box car the box car hid the view, the bright light of the train was there; did you know that the box car would hide your view from an approaching train?

"A. I didn't notice it at the time. We were just about on the sidetrack when I discovered the box car standing there west of Saginaw street. The east end of the box car was perhaps thirty feet or so west from us. It was just as we came up there, right on the track, that we discovered that flashlight from the head of the engine.

"Q. Well, how long do you think you had discovered that flashlight from the headlight of the engine before you attempted to cross over?

*

"A. Probably instantaneous. * * I think that you can look west and see a train approaching from the west if there is nothing on the sidetracks, at least a mile and a half. On this occasion there were the coal sheds and box car to hide my view. You couldn't look west for at least a mile and a half across that bend when you were on the south side of the coal sheds, if no box cars were standing there, unless you were in the middle of the track. Within eighteen feet of this track you cannot look west if there isn't anything on the tracks, and see for at least a mile and a half. I have made tests several times recently. You would have to be within six or seven feet of the track before you could look west a mile and a half, that is, if there were no box car there. That would be either on foot or in the automobile. I did not observe this box car until we came up there on the track; did not observe it before.

"Q. Well, how near did you get to it when you first discovered that it was there on west of Saginaw street? "A. Probably within eight or ten feet.

"Q. Then, during the last ten feet, when you were driving, before you got to the box car, you knew it was there and that it would cut off your view from seeing a train approaching from the west, didn't you? "A. I knew it was there but I did not observe that it would cut off the view at the time. I didn't think

I think I was

anything about the view at that time. between the sidetrack and perhaps the front end of the machine was on the main track when I discovered the light. I didn't remember anything further about the light, it came so suddenly, the next thing was the collision. I didn't have time to try to go faster after I discovered the headlight of the engine. I was going at a slow speed at the time, and had not changed it up to the time of the accident. I understood the use of the brake. It depends on how hard you put on your brake how quickly you can stop a Ford going five or six miles an hour. You can stop it within two or three feet. My car was going at about three or four miles an hour, so that at any time I think I could have stopped it within three feet."

On the redirect-examination he testified:

"My best judgment is that the automobile was on the main track when I saw the light. There was a very short time between when I saw the light and when I was struck; it was practically instantaneous. To put the car into reverse you have to release, if you are driving slow, and put it into neutral and press on the reverse. You would, in driving in low speed have to stop and release your clutch and then back up. I did not have time to take those steps when I discovered that train."

Several witnesses testified the train was running 25 or 30 miles an hour and that they heard neither whistle nor bell though they were listening at the time.

It was the claim of the defendant that the train was running but 15 miles an hour, that a crossing whistle had been blown at the proper place, that the bell was rung continuously, and that there was no car on the siding to obstruct the view to the west. It is the claim of the appellant:

"1. The defendant was not guilty of any negligence. "2. The plaintiff was guilty of contributory negligence.

"3. The verdict of the jury was contrary to the great weight of the evidence.

"4. There was error in the refusal to give certain instructions and in the charge as given."

We quote from the brief:

"The only charges of negligence in this case as to which there may be room for argument is with respect to the speed of the train, and whether signals, by whistle and bell, were properly given. It is our contention that there is no testimony which rises to the dignity of evidence that the defendant was negligent in these particulars. * *

*

"This court in a number of cases has had occasion to consider the question of the qualification of a witness to testify as to speed, but in this case we raise

no question respecting the qualification of these witnesses. Our point is with respect to their opportunity for observation."

Counsel cite Mott v. Railway Co., 120 Mich. 127; Canerdy v. Railway Co., 156 Mich. 211, and other cases. In both of these cases the court held the questions of negligence of defendant and the contributory negligence of the plaintiff were for the jury. In the instant case the witnesses had sufficient opportunity to see the train when it was running and to observe where it stopped, to make it competent for them to testify. Detroit, etc., R. Co. v. Van Steinburg, 17 Mich. 104; Thomas v. Railway Co., 86 Mich. 496; Line v. Railway Co., 143 Mich. 163, and cases cited therein; Garran v. Railroad Co., 144 Mich. 26. We again quote from the brief:

"Second. As to the signals, by whistle and bell, given for the purpose of warning.

"On this point the testimony is apparently conflicting, but when it is examined it will be found that the testimony relied upon to show that the signals were not given is negative in character, while that to the effect that the signals were given is of a positive nature. In cases where testimony claimed to show failure to give signals is of a negative character, this court has held that such testimony is to be wholly disregarded as against the positive testimony that they were given. Stewart v. Railroad Co., 119 Mich. 91; Britton v. Railroad Co., 122 Mich. 359; Bond v. Railway Co., 128 Mich. 577."

A number of witnesses testified that they were observing the train and listening for the signals for reasons which they gave in detail, and that they saw and heard no signals for this crossing. We think this made a question for the jury. Cotton v. Railway Co., 99 Minn. 366 (109 N. W. 835, 8 L. R. A. [N. S.] 643, 9 Ann. Cas. 935); Crane v. Railroad Co., 107 Mich. 511; Lonis v. Railway Co., 111 Mich. 458; Hinkley v.

Railway Co., 162 Mich. 546; Tietz v. Railway, 166 Mich. 205; Nichols v. Railway Co., 203 Mich. 372. We again quote from the brief:

"If there was any evidence to take the case to the jury on the question of negligence and contributory negligence and we strenuously insist there was not -then we must urgently contend that the verdict is contrary to the great weight of the evidence. In arguing the questions of negligence and contributory negligence before the question of the weight of the evidence we do not wish to be understood as indicating in the slightest degree that we regard the strength of our position on the latter question as less than on the former. On the record in this case, if there was an assignment of error only with respect to the weight of the evidence, we should feel confident that the verdict must be reversed." Citing In re McIntyre's Estate, 160 Mich. 117, 120, 121; Brown v. Railroad Co., 183 Mich. 574, 585, 586; Barger v. Bissell, 188 Mich. 366; 204 Mich. 416; Malloy v. Railway Co., 192 Mich. 344, 352; Miller v. Railway, 200 Mich. 388.

It must be conceded the testimony is conflicting. As to the car on the siding, nine witnesses, including the plaintiff and his son, testified to the presence of this car west of the sidewalk. On the contrary, defendant produced the baggageman at Holly who testified from the record kept by him that there was no car on this siding at the time of the accident, that the last car which had stood there prior to the accident was taken away three days before. Defendant also produced the conductor of the train which took away, three days before the accident, the car which had stood on this siding. Mr. Seeley, the owner of the coal sheds, testified that there was no car on this siding up to six o'clock on the evening of the accident, and none there Monday morning. Other witnesses testified that there was no box car there. Someone was mistaken or guilty of falsifying. This conflict in the testimony as to the car on the siding, as to the speed of the train, and whether the signals were given, made them peculiarly questions for the jury.