don't know. It might have been closer. I saw it, and I knew that I could not get away, and I dropped the lines. I did not see or hear any flagman or electric bell at that crossing. There was no gate there to keep me from going across.'

Plaintiff had no concern with the cars of the Michigan Central railroad. The track of that road was on the opposite side of the city, a long distance away, and he had no occasion to cross it or to look for trains passing over it.

Plaintiff makes no claim that he stopped again before he was struck. Other witnesses saw him, and one or two testified that they saw him stop. The place they saw him stop was evidently the place testified to by plaintiff. The defendant's negligence in leaving the box car standing over a portion of the crossing was before his eyes. He saw it and recognized it. This fact imposed upon him greater vigilance and caution. 2 Thompson on Law of Negligence, § 1670. It is a reasonable rule of law that, when a traveler upon the highway cannot see an approaching train at the crossing, he should stop and listen at that point where the act of stopping and listening will, in all probability, avoid the accident. This is a duty imposed upon a traveler, not only for his own safety, but for the safety of trainmen and passengers. The place of duty is not determined by the distance from, or nearness to, the track, but by the opportunity to listen and thus avoid the danger. The place of opportunity is the place of duty. This is the rule established by Shufelt v. Railroad Co., 96 Mich. 327. Suppose plaintiff had been drawing a load of stone or iron, or other hard and bulky substance, the danger of derailment in case of a collision is apparent. It is apparent that the engineer and fireman could not see the exact location of this box car until they were very near the crossing. Plaintiff was in a position to know this. A railroad grade crossing on the public highway is not only notice of danger, but is also notice that that danger may come at any moment. Plaintiff could not see an approaching train until it was almost upon him, and the jury by

When he did see

their verdict have established this fact. the engine, it was too late to avoid the collision, for his horses were then in the path of the approaching train. is true that the defendant was running its train at a speed prohibited by the ordinance of the city, limiting the speed to six miles an hour, and it is conceded that this speedtwelve miles an hour-was negligence. But this did not justify the plaintiff in acting upon the presumption that the railroad company's employés would conform strictly to the requirements of the law. The language used in Lau v. Railway Co., 120 Mich. 115, is applicable here:

*

*

"Is it not common prudence for one, in entering a dangerous place, to take that course which involves no inconvenience, delay, or trouble to himself, and which will, if followed, insure his own safety as well as that of others? If it is, the law requires him to take it. Engineers and firemen do not always perform the duties imposed upon them in giving the signals. While the presumption may be that they do, human nature is not yet so perfect that every one performs his duty. To sustain the plaintiff's right of action would be to hold that he has the right to rely absolutely upon the presumption of this duty by the trainmen, and that he may ride along regardless of consequences and rely upon the absolute performance of this statutory duty."

The street in that case was obstructed the same as it was in this. If it was the duty of the plaintiff in that case to alight from his bicycle just before he approached the track, and look and listen, and thus avoid the danger, why was it not the duty of the plaintiff in this case to stop his team when within 10 or 15 feet of the track, and again listen? To have done this would have no more delayed or inconvenienced him than would Mr. Lau have been delayed or inconvenienced by alighting from his bicycle. This single act of care would have avoided the accident in both cases.

I think this case is ruled by Shufelt v. Railroad Co., 96 Mich. 327. The facts in that case are very similar to those in this. Mrs. Shufelt drove from 90 to 100 feet

without stopping to listen, and did not see or hear the train until the horses were upon the rails. We there said:

"The road was dry and hard. She had two horses, and a lumber wagon with a box, and a spring seat fixed upon the box. She did not stop her team to listen. She had been for a long time familiar with the crossing, and had frequently driven over it. When upon the little rise of ground from 90 to 100 feet from the crossing, she looked to the west, and saw no train approaching. The horses were accustomed to the cars, and were not afraid. They were farm horses. She said she was on a slow walk. She did not stop, and the horses stepped upon the track just as the train struck them. If the woodpile, from the rise of the ground to the track, obstructed her view of the approaching train, it was her duty to stop and listen when nearer the track. Had she stopped upon the rise of ground, it is quite probable that she would have heard the train. She testified:

* *

"I did not stand still. My horses were on a walk, and, when I got there, I pulled on the lines, and came almost to a standstill, and looked and listened if I could hear the cars, and I did not hear them, so I went along. I was on a slow walk. * I did not stop. I drove right onto the crossing. The horses were between the rails when I first saw the train. When I got on the track, the train was right there.'

"She did not listen for any train or signals from the rise of the ground to the track. She evidently assumed that there was no danger of the approach of a train before she could get across. In this she was not in the exercise of common prudence, either for her own safety or that of those traveling upon the railroad."

Thompson (2 Thompson on Law of Negligence, § 1656) states the rule thus:

"It is perfectly plain that if the traveler looks at a place from which he cannot see, or listens from a place from which he cannot hear, and there are other places from which he can see or hear, or both see and hear, and he does not avail himself of those places, to the end of ascertaining whether or not a train is approaching-he has not discharged the duty of exercising ordinary or reasonable care which the law puts upon him."

See, also, Scott v. Railway Co., 79 Ark. 137 (9 Am. & Eng. Ann. Cas. 212, and note). If, under the case made by the plaintiff, reasonable minds might draw different conclusions, some that he exercised vigilance and caution, and others that he did not, then the case was properly left to the jury. If, however, under the case made, it was the clear duty of the plaintiff to stop and listen before entering upon this dangerous place where he was deprived of all ability to see, the defendant was entitled to the direction of a verdict in its favor. I think the duty to so stop and listen again is clear. Grade crossings are allowed in this country. The duty of railroad companies and travelers upon the highways to use all reasonable vigilance and caution to avoid collisions is mutual. The failure upon the part of either to use such reasonable vigilance and caution does not excuse the other. When both are negligent, both must suffer the consequences which result.

Under this record the court should have directed a verdict for the defendant.

2. Inasmuch as a new trial is ordered, one other question must be determined. A witness named Mortenson testified for the plaintiff that the north end of the north box car extended over the plank crossing. There was testimony on the part of the defendant in direct contradiction of this testimony. In arguing the case to the jury, the learned counsel for the plaintiff in the heat of argument said:

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

Defendant's counsel excepted to this statement, and thereupon plaintiff's counsel said:

"I will allow my brother on the other side all the ingenuity he can use.

The location of this car became a most material question of fact. If it was located at the distance from the crossing testified to by the defendant's witnesses, the

plaintiff was beyond doubt guilty of contributory negligence. His right to recover depended entirely upon the determination of the location of this car. The statement of counsel virtually said to the jury:

"Railroad employés, when testifying in behalf of their employer, are not worthy of belief, when a witness for the plaintiff and witnesses for the employer are in direct conflict."

It charges in no uncertain words that the testimony of railroad employés should be discredited, not because they are employed by a party to a suit, but because they are employed by a railroad company. It suggests that a different rule is to be applied in testing the credibility of employés of railroad companies from that applied in testing the credibility of the employés of other parties. It suggests that employés of railroad companies are peculiarly untrustworthy as witnesses. We may say, as we said of a similar remark in Dolph v. Railway Co., 149 Mich. 278:

"Here is clearly an appeal to the prejudice of the jury. They are asked, in effect, to discredit defendant's witnesses because defendant is a railroad company. It is as if counsel said: 'Don't give railroad companies a fair trial because they are railroad companies.' I think every one will concede the injustice of such arguments. It is clearly our duty to condemn them, and protect litigants from their injurious consequences.'

While we dislike to reverse cases for intemperate language, we cannot avoid the responsibility when language is used which clearly tends to prejudice the jury. If counsel was provoked by any action or language on the part of defendant's counsel into making these statements, the record fails to show it.

Judgment should be reversed, and new trial ordered.