strued this rule as contended for in the recent case of Moreland v. Lenawee Circuit Judge, 144 Mich. 329, 107 N. W. 873, in which case this court construed circuit court rule No. 58 (108 N. W. v), erroneously called Supreme Court rule No. 58 in connection with circuit court rule No. 36. Circuit court rule No. 58 provides, in substance, that in cases pending and at issue when the rule took effect a motion for change of venue should be entered within 20 days therefrom. The rule took effect February 20, 1906. On March 12, 1906, a motion for change of venue was made in the case. Justice Moore, referring to rule No. 58, said: "It took effect February 20, 1906. It provides that in cases pending and at issue when this rule should take effect said motion shall be entered within 20 days therefrom. The 11th of March came on Sunday. The motion was made on Monday, the 12th of March. We think it was made in time, under rule 58, construed in connection with circuit court rule 36 and Supreme Court rule 25 [68 N. W. vii]." Supreme Court rule 25 is identical with circuit court rule 36. It is claimed that under this ruling this court, impliedly at least, held that, had a default been attempted for failure to move on or before March 11th, the same would have been set aside, as the party had all of Monday, March 12th, in which to make his motion. The plaintiff claims that defendant's counsel are wrong in their contention, and that, as defendant could have entered its appearance or served notice of retainer at any time within 15 days after the service of summons upon it on March 2d, the construction of the rule by defendant's counsel is not correct. Plaintiff says: "The thing to be done was not required to be done on the fifteenth day. It could have been done on any day after service of the process, excepting, of course, Sundays. There were three Sundays within the 15 days, the 3d, 10th, and 17th. There would be as much reason for allowing three extra days beyond the 17th as for one day. If obedience to the summons would have required the defendant to appear or give notice of retainer on the fifteenth day, then, under rule 36, it would have had the following day." Counsel for plaintiff quote a part of section 314, 1 Green's Practice (3d Ed.). The whole of the section reads as follows: "In computing time the day on which any order, notice, pleading, or other paper is served must be excluded; and the day on which compliance therewith is required must be included, except when it falls on a Sunday, in which case the party has the whole of the next day to comply therewith. This rule, however, does not seem to apply to special proceed ings in which both days are generally excluded. Where a statute requires an act to be done within a certain number of days, day for doing the act, except where it comes within the rule of court stated above. In many cases intervening Sundays have been excluded in the computation of time within which to do an act, while in cases relating to notices regulated by rules of court such Sundays have been included." Counsel for plaintiff also cite the following cases: Drake v. Andrews, 2 Mich. 204; Anderson v. Baughman, 6 Mich. 298; Corey v. Hiliker, 15 Mich. 314; Dale v. Lavigne, 31 Mich. 149; Harrison v. Sager, 27 Mich. 476. In Drake v. Andrews, supra, this court was dealing with the statute providing that an appeal from a decree in chancery must be claimed and entered within forty days from the time of making such decree; and it was held that, where the fortieth day was Sunday, the appeal could not be taken on the following Monday. But the court said: "In the construction of rules of court in relation to pleading and other matters of practice, it is well settled that, if the last day fall on Sunday, the party has the whole of the next day in which to perform the act required. See the authorities cited at the end of an anonymous case in 2 Hill [N. Y.] 376, 377." After a review of the authorities, the court proceeds: "The court says in Bates v. Loomis, 5 Wend. [N. Y.] 136: 'It is the ordinary course of the court to enlarge the time to plead, or other time prescribed for any other purpose by the rules of practice of the court, upon cause shown; but neither a commissioner in vacation nor the court in term can enlarge the time within which an act is to be done where such time is regulated by statute. The rules and practice of the court being established by the court may be made to yield to circumstances to promote the ends of justice. Not so as to a statute. It is unbending, requiring implicit obedience as well from the court as from its suitors. The court possesses no dispensing power. where the statute stops, and therefore we are reluctantly constrained to grant the motion of the appellee and dismiss the appeal." In Anderson v. Baughman, supra, the rule relating to hearings in this court was under consideration, and it was held that in computing time on such notices the day on which the notice was served was to be excluded, and the first day of the term included. There was an intervening Sunday, which was included in such computation, but it will be noted that the last day did not fall on Sunday, hence the case does not apply here. Corey v. Hiliker, supra, is to the same effect. In Harrison v. Sager, supra, it was held by a divided court that under the statute requiring the justice to render judgment within four days after a case shall have been submitted to him for his final decision a judgment rendered on the fifth day was void, even though the fourth day was Sun We must stop necessary, citing 1 Black on Judgments, § 347, and using the following language: "The entering of the judgment was unseasonable, and should have been vacated by the court, upon its attention being called thereto, and the appellant allowed to defend, without requiring any affidavit of merits whatever." In Marks, Ex'r, v. Russell, 40 Pa. 372, it was held that in computing the time to plead on 10 days' notice under a rule of court the day on which the notice is given must be excluded, and, if the final day falls on Sunday, it also is to be excluded. Therefore, where a rule was entered and served December 27, 1860, and the ten days in which defendants therein were required to plead expired January 6, 1861, which was Sunday, a plea entered upon the following Monday was in time, and the judgment entered on that day against the defendants in default of the plea was premature and erroneous. The court said: "The judgment was premature in counting the time to plead after notice, the day on which the notice is given is excluded, and, if the final day falls on Sunday, it also is excluded, and a plea entered on Monday is in time. A judgment entered on that day is erroneous." v. Bissell, supra. Chief Justice Christiancy | 5 Ariz. 8, 43 Pac. 220, the court held in a said: "If the statute required the judgment similar case that no affidavit of merits was to be rendered on the 4th day, and it was not competent for him to render it upon the first, second, or third, there would be strong reason for saying that Sunday should be excluded; but, as it is just as competent for him to render the judgment on any other of the four days, there is no more reason for excluding Sunday because it happens to be the last than if it happened to be one of the preceding three." This is the same reason that is urged by appellee in the instant case, but the distinction between a statute and a rule of practice should be kept in mind. We think, however, that on principle there is much force in the language of Justice Campbell in the dissenting opinion, wherein he said: "To include Sunday is to limit him (the justice) to three judicial days, and to raise a distinction which gives him more time in some cases than in others, which is not, I think, a conclusion to be favored." In Dale v. Lavigne, supra, the last-named case was held controlling in construing the statute requiring an appeal from the judgment of a justice to be perfected within five days after the rendition of the judgment; and, where the fifth day was Sunday, it was held that Monday was too late. We are of opinion that under circuit court rule No. 36, as construed by the New York courts, and by this court, the default entered in this case was premature and void. The judgment of the circuit court is re[2] 2. The default having been premature-versed and a new trial granted, and defendly entered, it cannot be said that the default ant should be permitted to plead to the declaration. "was duly filed or entered" within the meaning of circuit court rule No. 12, subd. "b," and it must follow that the judgment entered on March 20th was premature and void. The defendant had all day Monday, March 18th, in which to appear. Its default could not have been properly entered until Tuesday, March 19th. Subdivision "c" of circuit court rule No. 12 provides that: "Hereafter a further order making a default absolute shall not be necessary, but judgment shall not be entered on a default until at least one day in term has passed after such default." That one day in term would properly have been Wednesday, the 20th, if we are to exclude the earliest day on which the For other definitions, see Words and Phrases, vol. 4, pp. 3168-3173; vol. 8, p. 7675.] default might have been legally entered under rule 36, to wit, Tuesday, the 19th. 2. RAILROADS (§ 400*)-INJURIES TO PERSONS ON TRACK-EVIDENCE-QUESTIONS FOR JUTherefore the judgment on Wednesday, March 20th, was premature and void. Thurs- In an action against a railroad company day, March 21st, was the first day upon for injuries which plaintiff received while standwhich judgment could have been legally engine, evidence held insufficient to go to the jury ing on its tracks with his back toward an entered. On that day defendant's appearance on the question of the company's gross negliwas entered. It is urged that defendant's gence. motion to set aside the default was not based upon an affidavit of merits, as provided by We are constrained to hold that the default and judgment were prematurely entered, and are void. PUTT v. GRAND RAPIDS & I. RY. CO. (Supreme Court of Michigan. July 11, 1912.) 1. RAILROADS (§ 391*)—INJURIES TO PERSONS ON TRACKS-CONTRIBUTORY NEGLIGENCE"GROSS NEGLIGENCE." Where plaintiff, who was struck by a train, was guilty of contributory negligence, he cannot recover unless the railroad company was guilty of gross negligence, which is the intentional failure to perform a manifest duty. [Ed. Note.-For other cases, see Railroads, Cent. Dig. §§ 1317, 1326-1330; Dec. Dig. 391.* RY. [Ed. Note.-For other cases, see Railroads, Cent. Dig. §§ 1365-1381; Dec. Dig. § 400.*] Error to Circuit Court, Kent County; John S. McDonald, Judge. rule 12. Our answer is that the rule contemplates a default "duly filed or entered," and does not apply to an irregular or premature default. In Pemberton v. Duryea, For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes Action by Charles W. Putt against the Grand Rapids & Indiana Railway Company. There was a judgment for plaintiff, and de- | backing south across Second avenue a Michfendant brings error. Reversed. The two Second avenue is a street running east and west in the city of Grand Rapids. It is crossed by five railway tracks. easterly tracks are Michigan Central side tracks, the next one is the Michigan Central main track, next west of that is defendant's main track, and west of that again is the Michigan Central transfer track. A flagman is stationed at this crossing. His shanty is located just west of all tracks and north of the northerly sidewalk on Second avenue. On the morning of plaintiff's injury, an engine left the roundhouse at Ninth avenue at about 9:30 a. m. It moved north to the main track which it entered 229 feet south of Second avenue, thence north on defendant's track across Second avenue and First avenue, to a point north of the signal bridge, north of First avenue. It was necessary for the engine to go to a point north of this bridge to get through the interlocker. There it came to a stop and received the signal, and then backed south along the main track across First avenue and Second avenue on its way to the south yards, where it was to take out a freight train to Muskegon. igan Central train, bound north on the Michigan Central main track, that being the next track east of defendant's main track, reached the same point. The engineer in charge of the engine testified, in part, as follows: "The rule as to the rate of speed through that interlocker district was at that time 6 miles an hour. When I got the signal from the towerman, I went south down the main track, went back south. I ran south on the main track to the B. O. tower, or south Going south from First to Second yards. and Third avenues, the engine was running at not to exceed 6 miles an hour at any place. I was then inside of the interlocker district. The fireman (Stevens) was in the engine with me, nobody else. Q. What were you doing and where were you on the engine as you ran south? A. Looking toward the way we were going. Q. Where were you, in the cab? A. In the cab. Q. On which side A. I was on the It would of the cab? be on the east side of the tracks, backing up. Q. As you were backing the engine down there across First avenue, and on across Second avenue, state what you were doing, whether you were keeping any outlook in the direction you were going? A. I was The plaintiff, a man of mature years, ap- looking out of the cab in the direction I was proached this crossing from the west on the going. Q. Where did you look out of the northerly sidewalk, intending to cross the cab there; did you have your head out of the tracks to a planing mill just east of the window? A. Yes, sir. Q. You were looking tracks. When near the westerly track, out of the east window of the cab far plaintiff noticed defendant's engine going enough to look ahead? A. Yes. Q. Did you north. After it had passed, he stepped up- see any person on or near the track between on defendant's main track. As he did so, First or Second avenue, as you went south? his attention was attracted to a man who A. I did not. Q. Did you see anything of was having trouble with a load of lumber; this accident? A. No, sir. Q. Did you see the load having tilted up. Plaintiff stood on the man when he was struck? A. No, sir. the track watching this man for a short Q. When did you first know you struck him? time, he says 15 or 20 seconds, when he was A. When I arrived at the B. O. tower. Q. struck by the engine which was returning I think the testimony shows that he was on south. Just before he was struck, he turned the westerly side of the main track, and his head and saw the engine upon him. He, attempted to jump to the west, being nearer the west rail, but was struck by the southwest corner of the tender. Plaintiff suffered a compound fracture of both bones of the left leg. At the time of the trial, the bones had failed to unite, and it was the opinion of the surgeon that amputation of the foot would be ultimately necessary. Plaintiff was very deaf, so deaf as to be unable to hear the approaching engine, although it was equipped with a bell 16 by 14 inches, weighing 98 pounds, which was constantly ringing as it approached and crossed Second avenue. The crossing in question is a busy one, many trains passing and repassing each day. Plaintiff was familiar with the crossing having passed over it the evening before his injury. He testifies that, as he approached the crossing on the morning, he saw no watchman though he looked for him. It appears from the record that at or very state whether or not you could see that point, heard Mr. Habercorn's testimony; that was | Third avenue. Just before meeting the a correct description of the bell in my judg- Michigan Central train, I slowed down, even ment. That bell was rung as the engine moved south. It was ringing from the time we left the roundhouse until we arrived at the B. O. tower, and was ringing when I crossed First avenue and Second avenue. It rang automatically, by air. That engine was No. 50. I left the roundhouse about 9:35. I would not say exact, but about that. I was to take the train at 10 o'clock." On cross-examination, he testified: "Q. Now, as you started back south, did you notice a Michigan Central train up by the signal bridge, or beyond that? A. Yes, sir. Q. Were you watching that train? A. I was. Q. So your attention was- From the time you started from that interlocker looking north, you had your eye on the Michigan Central train? A. Well, and on the track. Q. But you had your eye on the train? A. I saw the train. Q. And you were watching it, were you not? A. Yes, sir. Q. Now, you depend considerably upon your watchman at this crossing, for he will see that there is no one in the way? A. That is what he is there for, I suppose. Q. And when you start back it is customary that on these crossings that you know a flagman is regularly stationed for you to rely on that flagman to do his duty, and, if there is anything in the way, to give warning to the parties, to give warning to you? A. Yes, sir. * Q. Here is the window of that cab; does your tender extend any beyond that, or is it just even with it? A. It is a little inside. Q. About how much? A. About 4 inches. Q. About 4 inches inside of the cab window? A. Yes, sir. Q. And you were looking out of the east window of your locomotive? A. Yes, sir. Q. And if you- To get a full view of this crossing or of any crossing as you back up where the line is perfectly straight-that is, where the road is straight, the rails running straight-you say you cannot see the track; your vision is cut off from the track some 200 or 300 feet? A. I should judge it was that far; I never measured it. It stands to reason you could not see. Q. Have you any recollection whatever that morning of taking any particular notice of the conditions up there at Second avenue as you started back? A. No. Q. And, as you were depending upon the watchman, the man might have been there and you not noticed him a way down there at the signal bridge standing on the side walk? A. He might have been there." Upon redirect examination, this witness further testified: "The Michigan Central train, when I first saw it, was about Fifth avenue, and it was going north. I had nothing to do with that train; it was running on another track. I was running on the Grand Rapids & Indiana main track, and that is the track that I was watching. I passed the rear of the Michigan Central train at slower than I was going. The reason for doing that, most always when a train passes on a parallel track like that, some one is apt to come in behind it, and you are apt to catch them going in the opposite direction. That is, the possibility of some one on the east side of the Michigan Central track going west, waiting until the Michigan Central train passed north, and then going right on to the Grand Rapids & Indiana track. I was looking out for that. I pulled the speed down almost to a stop; that is where people get hurt most and worst. I did not see Mr. Putt at all." The watchman at the crossing testified in part as follows: "Q. Where were you standing at the time he was struck? A. I was standing right in the center of the street. Q. On which side of the Grand Rapids & Indiana main track? A. On the west side. Q. And how near to the main track? A. About seven feet where I stood. Q. And in the center of the street? A. Yes, sir. Q. Did you see the passenger train coming from the south at that time? A. Yes, sir. Q. Were there any people on either side of the tracks about to cross the tracks in either direction? A. No, sir. Q. Did you look west? A. Yes, I looked west; I looked, I started and I looked up first west and there was nothing there, and I turned around and looked east, and then turned around and looked on the north side, and that fellow got struck at the same time. Q. Let me see if I understand you. You saw this train coming, the passenger train was coming from the south? A. Yes, sir. Q. And the engine was coming down from the north at the same time-the Grand Rapids & Indiana engine? A. The Grand Rapids & Indiana went first. Q. But, when you looked there, they were both coming to the crossing? A. Yes. Q. The engine from the north and the passenger train from the south? A. Yes, sir. Q. Now, you say you looked around? A. I came up from my shed, from my watchhouse, and I looked around there if something were there. Q. You looked west? A. Yes. Q. Did you see anybody on the street or sidewalk? A. No, not so far as I could see. Q. Then did you look east on the street? A. Then I turned around and the Michigan Central freight comes, and I turned around and looked, and the engine, at the same time that fellow there, he comes across. was struck just as you looked around? A. Yes, at the same time. Q. Had you seen him before that anywhere? A. No, not that day. Q. That morning? A. No, sir." Q. He Charles Sleeman, a witness for plaintiff, was close to the crossing at the time of the accident. He testified that he saw the engine pass, and just when it passed he saw the plaintiff; that he went right over and helped pick him up; that there was some one else there, the flagman at the crossing. | der to use all reasonable efforts to be in The court charged the jury that plaintiff such a position or place upon said crossing was guilty of contributory negligence, as a that he would be able to stop pedestrians matter of law, and that there could be no or travelers upon Second avenue coming recovery unless his injuries were occasioned from either direction when a train was by the gross negligence of the defendant. about to pass, and, if he failed to do this, Upon the question of gross negligence the he neglected his duty, and if you find that court charged: "In order that you may be the crossing tender, at the time plaintiff was able to determine whether the defendant, standing upon the crosswalk (if you find he through its enginemen or crossing tender or stood there) was not in such position that either or any of them, was grossly negligent, he could have warned the plaintiff, or by I will give you the legal definition of gross the use of ordinary care he might have negligence, which has been said by our court known and discovered plaintiff's position, to be: 'It means the intentional failure to then the defendant is guilty of gross negliperform a manifest duty, in reckless dis- gence, and the plaintiff is entitled to reregard of the consequences, as affecting the cover." life or property of another. It also implies a thoughtless disregard of consequences, STEERE, MCALVAY, BROOKE, STONE, without the exertion of any effort to avoid and OSTRANDER, JJ. them.' From this definition you will see * Argued before MOORE, C. J., and BROOKE, J. (after stating the facts as above). [1, 2] It is the position of defendant that, under the testimony in this record, a verdict should have been directed for the defendant. It is not disputed that the speed of the engine was not greater than six miles per hour, nor that the bell upon the engine was constantly ringing as it approached the crossing where plaintiff received his injury. There is no dispute as to the actions of the engineer or fireman immediately before the accident. The engineer testified that, from his proper position upon the easterly side of the engine, he kept such lookout as was possible from his point of view while the fireman was engaged with his particular work-that of shoveling coal. As the engine approached Second avenue from the north, the engineer's line of vision would gradually be cut off by the tender, so that, when 200 or 300 feet from Second avenue, he would be unable to see a man standing nearer the westerly rail of the track than the easterly rail, the position which plaintiff asserts he occupied while standing upon the track. He testifies that he never saw the plaintiff, and did not know that his engine had injured any one until he reached the B. O. tower, some distance south of Second avenue. James H. Campbell, of Grand Rapids, for that gross negligence will consist either in appellant. Geo. E. & M. A. Nichols and Dunthe intentional failure to perform a mani-ham & Phelps, all of Grand Rapids, for apfest duty in reckless disregard of conse- pellee. quences, or it may imply a thoughtless disregard of consequences without the exertion of any effort to avoid them. 'If the employés of the railroad company saw the plaintiff in danger, or if they did not actually see him, but by exercising ordinary care in the discharge of their duties, they Would have seen him and should have discovered the danger that he was in in time to avert the injury, and either failed after discovering it to take steps to avert it, or failed to discover the danger at all, the fact that the plaintiff's danger arose in the first place through his own negligence in standing upon the track will not prevent his recovering for the injury sustained in this case.' So that, if you find that the engineer backed his engine over the crossing without looking to see whether any one was upon the crossing, if you find that he saw or could have seen the plaintiff standing upon the sidewalk of the crossing and did not check the speed of the train or in any other way use ordinary care to prevent striking him, he was guilty of gross negligence, and the plaintiff can recover, notwithstanding that he had previously negligently placed himself in such position of danger. A railroad company is guilty of gross negligence if it backs a train over a public crossing, especially in a populous place, unless ordinary care is used for the protection of travelers. This is one of the questions for you to determine: Did the defendant, through its employés, discover the danger in which the plaintiff had placed himself, or by the exercise of ordinary care should have discovered it, and did they use ordinary care to prevent injury to the plaintiff? You will determine this from all the evidence in the case, and that is really the only question that you have to determine; it is the main question that you have to determine in this case. But, assuming that the engineer saw plaintiff standing upon the track 200 to 300 feet away, at the rate of speed at which he was traveling it would take at least 30 seconds to travel this distance, while the plaintiff could step off the track and reach a place of safety in the fractional part of a single second. With the bell sounding a constant warning, with no notice of plaintiff's infirmity, and considering his rate of travel, we are of opinion that the engineer would have had a right to presume that the plaintiff would step off I charge the track before the engine reached him, and |