MONTGOMERY, J. Three questions are presented in this case which deserve consideration: First, whether the plaintiff was guilty of contributory negligence, as a matter of law; second, whether there was error in excluding the testimony of Mr. F. E. Jones as to measurements which he made after the accident; and, third, whether the argument of plaintiff's counsel was so improper as to justify a reversal of the case.

cross.

It is unquestioned that there is abundant evidence to show that the plaintiff, when he approached the crossing in question, did stop, look, and listen before attempting to cross. It is the contention of defendant's counsel that the testimony conclusively shows that at the point at which he stopped his view was so obstructed by the cars of the defendant, situated upon the side track between him and the track upon which the approaching train was moving, as to render it impossible to see, and that his observation was therefore futile; and it is claimed that he should have made another and later observation before attempting to The distance from the fence on the west side of Hiscock street to the west rail of the side track is 18 feet; from the west rail of the side track to the west rail of the main track, is 15 feet. The distance from the fence to the west rail of the main track is therefore 33 feet. In Summit street, the street upon which plaintiff was driving when attempting to cross the defendant's track, was a plank crossing, 12, 14, or 16 feet in width, and about the center of the street, and there is testimony on behalf of the plaintiff tending to show that a train of cars extended from this crossing westerly for a considerable distance. Plaintiff came into Summit street from Hiscock street, turning a sharp corner. The testimony as to the location of the northeasterly end of these cars is conflicting. The testimony on the part of the plaintiff would tend to show that they were very close to this plank crossing; one witness testifying that in passing over this crossing and walking on a plank he reached out his hand

The plaintiff testified as fol

and rested it upon the car. lows:

"I saw a string of cars there, did not hear the engine. I drove the horses up there until I got to the north end of the string of cars on a walk.

"Q. Did you stop anywhere for the purpose of ascertaining whether there were any cars coming-any train?

"A. When I got to where the front feet of the horses would have been on Summit street I saw the condition of the cars, and right across from where I make the turn, there is a flush tank or hole, and there was ice around it, and I saw the condition I had to meet on account of the

cars. I had to make an extra turn. I looked both ways, and saw something on the Michigan Central. I turned this corner. I had to cramp the box to get over this plank, It is not over 20 feet. I had to cramp the box to keep away from the flush tank, and get the horses straight across over this plank. The horses were just heading onto Summit street when I stopped them. Before I started to turn when I stopped there, I looked down south and north over those cars as far as I could, both ways. I thought I saw the Central cars north. I don't know as I did. I supposed I saw smoke over in that direction, and thought it was from the cars. I did not see anything south, and did not hear a whistle. I did not hear them ring any bell or make any sound until they struck me. *When I turned around the end of the car and straightened out onto Summit street, my horses first struck the plank crossing, where the end of the cars were. The car was on the plank it seems to me. This plank would be 12 or 14 or 16 feet, or something of that kind."

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The construction placed upon this testimony by defendant's counsel is that the stop was made at a time when the plaintiff's horses reached the boundary line of Summit street as laid out. A construction quite as reasonable is that it was when the horses were upon the traveled portion of Summit street that they were stopped. The plaintiff says it was when the horses were just heading onto Summit street when he stopped them, but he also says that he had driven up to the north end of the string of cars on a walk. Mr. Begrim, a witness for the plaintiff, was on Summit street across the track from plaintiff. It

is manifest that his view was obstructed until plaintiff had passed the line of the obstructing cars. He testified:

"I just happened to see Mr. Beck come around there with the team and stop there."

On cross-examination he testified:

"The first I saw of Mr. Beck, he came right ahead and stopped his team. Then all at once he came up to the crossing, and no more than got onto the side track when I says, There he goes,' and he went up into the air. * * * I saw him just the other side of the track. He was just coming around the corner probably 25 or 30 feet from the track; I am sure I saw him 25 or 30 feet from the crossing, I judge from the main track."

If the testimony of Mr. Begrim is to be accepted, the plaintiff stopped his team after he came within the range of his vision, and, if plaintiff's testimony is accepted, he then made an observation and failed to discover the approaching train, drove onto the track, and received the injuries complained of. I think it should not be said, as a matter of law, that, under these circumstances, he was guilty of contributory negligence.

It is suggested that the case is ruled by Shufelt v. Railroad Co., 96 Mich. 327. That case is clearly distinguishable from the present. In that case the plaintiff did not stop her team to listen. She looked when upon a rise of ground 90 to 100 feet from the crossing, and saw no train approaching. She did not stop, and the horses stepped upon the track just as the train struck them. It was said, according to the evidence of her own witnesses, that when she came within 20 feet of the track she could have seen the train had she looked, and stress was laid upon the fact that the speed of the train constituted no negligence. It was said in the prevailing opinion:

"Passengers upon a highway must be charged with knowledge of the lawful rate of speed at which trains may run, and must govern themselves accordingly. Trains are not limited in the rate of speed they may run in the country, and across the public highways, where

the travel is limited. The commerce of the country demands rapid transit."

In the present case, however, it is conceded that the defendant was exceeding the speed limit permitted by the ordinances of the city, and was running its train at the rate of 30 or 40 miles an hour, and, as the jury found, without giving any warning of its approach, whereas the ordinance limits the speed to 6 miles an hour. If passengers are bound to take notice of the lawful rate of speed at which trains may cross a public highway, they are at least authorized to take notice of limits fixed upon the rate of speed within a city, and this certainly would bear upon the question of the point at which the observation of one approaching a crossing may be made, and it has been so held. Moran v. Railway, 124 Mich. 582. See, also, Ryan v. Railway Co., 123 Mich. 597; Haines v. Railway Co., 129 Mich. 475; Deneen v. Railway Co., 150 Mich. 235; Detroit, etc., R. Co. v. Van Steinburg, 17 Mich. 99, 118, 119. We think there was sufficient to justify an inference by the jury that the plaintiff was not guilty of contributory negligence. See Wilbur v. Railroad Co., 145 Mich. 344; Corbs v. Railroad Co., 144 Mich. 73.

As to the second question, namely, whether the court erred in excluding the testimony of F. E. Jones, the record shows that Mr. Jones is a practicing lawyer, and, before he made the measurements at the scene of this accident, he had been retained by the plaintiff's brother, who was the owner of the team of horses killed at the time. When the witness was interrogated as to the measurements made, the court said:

"I don't think you are entitled to that, do you?"

Mr. Whitney, counsel for defendant, answered:

"It is pretty close to the line.

draw the testimony."

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I will with

We are at a loss to understand why the question should now be presented to urge a reversal of the case.

Mortenson, a witness for the plaintiff, testified that on the morning before the accident occurred he passed from Summit street on the plank crossing, and that, as he crossed over the plank crossing, he put his hand on the end of the box car, thus showing the location of the car to be very near to the plank crossing. The defendant sought to meet this testimony and further testimony on the part of the plaintiff by calling defendant's employés. who had taken some measurements later in the day.

In the course of his argument the counsel for plaintiff said:

"You will believe what this witness Mortenson said if all the railroad men in Christendom should swear the other way."

An exception was taken to this statement, and error is assigned upon this portion of the argument. The language of plaintiff's counsel is extravagant. I do not construe it, however, as necessarily intended to imply untruthfulness on the part of railroad men because they were railroad men, but as an extravagant claim for the absolute verity of the testimony of Mortenson. The railroad men with whom Mortenson was being contrasted were beyond question the railroad men who had been sworn in the case, and who were employés of the defendant. It was, in substance, as though counsel had said:

"You will believe Mortenson as against a multitude of interested witnesses such as these."

It is not to be assumed that the jury would be misled by such an extravagant statement, and while the language chosen might have been more respectful to witnesses of the defendant, it was not, in my judgment, such as to justify a reversal of the case on this ground. The judgment should be affirmed.

BLAIR, C. J., and MOORE and MCALVAY, JJ., concurred with MONTGOMERY, J.

166 MICH.-17.