all of them, did actually exist, and that it was through the acts of negligence that the injury occurred. Now, I have read what acts he claims, and he claims that because of the failure of the defendant to perform its duty under all the circumstances surrounding the case, and in accordance with what I have heretofore instructed you, that the defendant is liable for the injury. He must prove that *** by a fair preponderance of the evidence. *** A fair preponderance of the evidence means such part of the evidence or the testimony which convinces you of the truth of the facts sought to be proved, just a preponderance. If the evidence, after you have weighed it, preponderates-it must preponderate in favor of the plaintiff on all the different propositions that I am going to give you, before he can recover. It must preponderate that the defendant was negligent in operating that car, and that the injury resulted from the causes that have been alleged in the declaration.

"Now, I desire to define to you what is meant by negligence. Negligence is neither more nor less than the failure of duty. Negligence consists in the want of that reasonable care which would be exercised by a person of ordinary prudence under all the existing circumstances, in view of the probable injury. Negligence consists in the failure to observe that degree of care which the law requires for the protection of the interests likely to be injured or affected by the want of it. You have got a right, according to the definition of negligence that I have given you, to take into consideration what both parties were doing. Each of them had a right upon the street. Each of them should owe a duty to the other. The defendant could not turn out; and when I say the defendant could not turn out I mean the cars on the track could not turn either to the right or left. It was the duty of the defendant to operate its cars in a reasonably careful and prudent manner so as to prevent a collision. It was the duty of the defendant company to watch out and see what danger there was in running the cars along the streets, particularly along Ottawa street. It was its duty to use reasonable care and prudence to avoid a collision with the plaintiff's automobile. You are to take into consideration the duty of the defendant, what they were doing, all the facts and circumstances, particularly as they bear upon the manner in which the automobile and street car were run on Ottawa street. *** Now, if there was no negli

gence on the part of the defendant that caused this collision, and you should so find, or you should not find that it was proven by a fair proponderance of the evidence that the defendant was negligent in that matter, why, in that case your verdict-stop right there and say that your verdict would be not guilty. But if you do find that the defendant was negligent, then it is your duty to consider and take into consideration, at the same time as you are considering the duty resting upon the defendant, the duty that the plaintiff owed. It is the plaintiff's duty to exercise ordinary care and prudence in operating his automobile upon the same, the same as the definition that I have given you in relation to negligence. If he fails to exercise that care and caution that he ought to, under all the circumstances, and his failure to exercise that care and caution that he ought to, under all the circumstances, contributed in any degree to the injury, that is what the law calls contributory negligence; and if you find that the plaintiff was guilty of contributory negligence, such negligence as contributed to the injury, then, no matter what the negligence of the defendant may be, if you find him guilty of contributory negligence, still your verdict should be for the defendant.

"It is your duty to take into consideration all the matters that have come out in evidence here-the street car line, where the street car was when he entered near the Steiner House on Ottawa street, where the plaintiff was, how he operated his automobile down Ottawa street, whether he was negligent about making a short turn across the street. He should be careful in crossing a street car track, because the street car track is notice to every person that there is a car upon it or may be a car upon it, and it is his duty to take the ordinary care and precaution to avoid a collision that any person of ordinary care and precaution would take under all the circumstances. That is what he is required to do. If he has done that, he is not guilty of contributory negligence. If he has not done that, he is guilty of contributory negligence. You have heard the testimony in relation to what he did. You have heard that testimony. I am going to leave that all to you. It is for you. This question of negligence and contributory negligence in this case is a mixed matter of law and fact. I have given you the rules that should govern you in your decision of this matter, both as to the negligence

of the defendant and as to the contributory negligence of the plaintiff."

A reference to the requests to charge show them to be argumentative. So far as they contained a proper statement of the law, we think they were covered by the general charge.

Did the court err in receiving the testimony of the witness Baker? This witness was a policeman, who got about the city on a motorcycle that had upon it a speedometer. He was allowed to testify to the speed at which defendant's car was run at the place of the accident upon another day than when the accident happened. Before he was allowed to do this, the motorman was placed on the stand, and testified the car was run at the same speed at the time of the accident as upon other days. In view of this testimony, we cannot say the reception of this testimony was

error.

Judgment should be affirmed.

BIRD, J., concurred with MoORE, C. J.

COTE VILLAGE OF HIGHLAND PARK.

1. TAXATION-SPECIAL ASSESSMENTS--IMPROVEMENTS.

On the theory that its value is enhanced by improvements, adjacent property may be specially assesssed to defray, in whole or in part, the cost of local public improvements by which such property is specially benefited.

2. SAME CONSTITUTIONAL LAW.

Provisions of law which render it legally impossible for assessing officers to apportion the burden of such improvements according to benefits, and with proximate equality, are said to be arbitrary exactions and not a legitimate exercise of legislative authority.

3. SAME-FRONTAGE-APPORTIONMENT. The apportionment of a paving tax may be constitutionally made according to frontage on the street, that principle having been found to be more just than any other. Under the general law the cost is to be divided in proportion to the respective fronts of the lots, but if an injustice would result the assessors may assess a given lot for such number of feet frontage as, in their opinion, would be just. 1 Comp. Laws, § 2837, 3 How. Stat. (2d Ed.) § 6058.

4. SAME-APPORTIONMENT-FOOT FRONT RULE.

To assess improved property at a higher rate than unimproved property having a like frontage, in order to keep the tax within 25 per cent. of the assessed valuation, as limited by the act regulating such assessments, does violence to the rule of equality and is not in accord with the discretion vested in the assessors to vary the foot-frontage rule so as to bring about equitable results in the case of peculiarly shaped lots.1 5. CONSTITUTIONAL LAW-ESTOPPEL BY PLEADING-TAXATION. A municipal corporation is not estopped from asserting the validity of a statute providing for special assessments, because it set up the claim in a previous suit brought against it by a third party that the statute was unconstitutional, the decision being based on other grounds, not determining the constitutional question.

6. SAME-TITLE-OBJECTS-VILLAGES-REGULATE."

Act No. 707, Local Acts 1907, is invalid because it attempts to amend the charters of four distinct villages, thereby embracing four distinct objects within its purview; and because provisions for borrowing money and issuing bonds are not included within its title, "An act to regulate the making of special assessments within the villages of Highland Park, St. Clair Heights, Hamtramck and River Rouge, in the county of Wayne." BIRD, J., dissenting.

Appeal from Wayne; Hosmer, J. Submitted June 20, 1912. (Docket No. 92.) Decided December 17, 1912.

Bill by Albert J. Cote and others against the village of Highland Park and others for an injunction. From a decree for complainants, defendants appeal. Affirmed.

The question of assessments for improvements by the front-foot rule is discussed in an elaborate note in 28 L. R. A. (N. S.) 1124.

Robert E. Barber (Paul B. Moody, of counsel) for complainants.

Edwin S. Bartlett, for defendants.

STEERE, J. This suit was instituted to restrain proceedings which were in progress to pave and curb Glendale avenue, in the village of Highland Park, and incidentally to test the validity of the law under which such improvements were being conducted, and the method of assessing adjacent property to defray the expenses of such improvements.

The complainant Cote is a resident owner of lands in such village, and all complainants are residents of Wayne county, owning lots abutting upon said avenue. The village of Highland Park is a municipal corporation in Wayne county immediately adjoining the city of Detroit on the north. Though a distinct municipality, it is in fact a suburb of Detroit, and through it runs Woodward avenue, which is a main thoroughfare to and from said city. Actuated by the growth and needs resulting from increased population, the council of said village, early in the year 1907, established a fire department, and during the following spring and summer entered upon an active program of street improvements, including paving and curbing Glendale avenue. Said village is incorporated under and derives its powers from the general law for the incorporation of villages, and defining their powers and duties, being chapter 87 of the Compiled Laws of 1897 (3 How. Stat. [2d Ed.] § 5903 et seq.), together with public and local acts amendatory thereof and supplemental thereto. Proper resolutions were passed and subsequent steps taken, admittedly following the provisions of appropriate statutes, to the point of levying a special assessment to meet the cost of the proposed improvement; but no contract was let or work actually done on the street, owing to the commencement of this suit. The estimated cost of the improvement was $23,278.10, and a tentative assessment roll was made, which shows that out of the