urged, as a ground for reversal, that there was such evidence. as required a verdict for the plaintiff, and denied one to the defendant. The assignments of error relate to the admission and exclusion of evidence, and to the giving and refusing to give instructions to the jury.

Admission of

remark as to

The uncontroverted evidence shows that the deceased was first seen sitting on the railway track about 50 feet in advance of the locomotive which came in contact with him, and that, so soon as seen, effort was made to avoid the collision; but there is some evidence to the effect that a locomotive could be stopped in a less distance than that intervening between the deceased and the locomotive when he was first seen. The appellant, on crossexamination, was asked whether, when informed of the injury to her husband, she did not say that "he always went to the track when drunk." This question was objected to, and the objection overruled; and the wit- intoxication. ness then stated that she made no such remark. If this question was an improper one, the answer to it certainly could not have had any injurious effect upon the case. If this question was irrelevant, and asked for the purpose of laying a predicate to impeach the evidence of the witness, by proving that she made such a remark, the latter evidence might have been excluded; but there is no assignment of error presented in the brief of counsel which raises the question of admissibility of evidence to show that she did make the remark. Such an assignment is found in the record; but, as it is not presented in brief of counsel, it must be deemed to be waived. Rule 29.

Evidence as to signals and headlight.

Several witnesses who were present when the accident occurred, stated that the bell on the locomotive was ringing for some distance prior to reaching the point at which the deceased was first seen, and so continued, and that the headlight was burning; but one witness stated that the headlight was not in good order. Thus standing the evidence, a witness who lived west of the place of accident, how far not shown, proposed to testify that the bell was not ringing, or the headlight burning, when the locomotive passed her house; and this evidence was excluded. No injury could have resulted from the exclusion of this evidence, which, it seems to us, ought not to have been admitted, even if in some cases proof of the condition of a locomotive near to, but not at, the place and exact time of an accident, might be admissible.

The fourth assignment of error is, that "the court erred in giving the special charges asked by defendant." Two charges, relating to different matters, were given at request of defendant; and the assignment does not point out, as required by the statute

The statute,

and rules of this court, the specific error relied on. as well as the rules of this court, declare that such assignment shall not be considered. Rev. St. art. 1037, rule 26.

Charges properly refused.

The fifth assignment is, that "the court erred in refusing to give the special charges asked by plaintiff." The charges so asked consisted of five distinct paragraphs, relating to as many different matters, and, for the reasons before stated, is not such an assignment as is required; in view of which case we deem it proper to say that we have looked to the charges given at request, and refused, to ascertain whether there was any such error in either of these respects as we could or ought to notice, in the absence of any assignment, and we find none such. Under the case made by the evidence, the charges asked and given were substantially correct; while those asked and refused were in part erroneous and not applicable to the case made, and, in so far as correct, they were covered by charges given. The charges given without request fairly submitted the case to the jury, while some refused would have entitled the appellant to recover, notwithstanding the injury may have resulted from the contributory negligence of the deceased, if there was the slightest neglect on the part of the defendant in regard to matters which in no way could have contributed to the injury.

Contributory negligence of deceased.

The deceased was sitting on the railway track, and there is not a particle of evidence tending to show that he was compelled tobe there, or in any manner detained there by the faulty manner in which the railway may have been constructed, nor tending to show that he might not have travelled on the street without entering on the track of the railway. However, the condition of the track was an unimportant inquiry. A high degree of care is necessary on the part of a railway company in operating its trains or locomotives on any part of its road, and especially so in the streets of a town or city, though such streets may be in the suburbs, and but little used; but if, while so operating its road, one fully capable, mentally and physically, to take care of himself, enters upon and remains on its roadway until he is injured by an approaching train or locomotive which he might see and hear by the use of his senses, then it must be held that the contributory negligence of such a person will defeat a recovery by him, or by one who can recover only on such facts as the injured person could have recovered on had he not died through the injuries received by him. There is nothing in the evidence tending to show that the deceased was not in mind and body sound, nor that he was wanting in any of the senses necessary for him to perceive and avoid danger; and the rule which denies a recovery to one whose contributory

negligence brings about the injuries complained of finds application.

There is no error in the judgment, and it will be affirmed.

BATTISHILL

V.

HUMPHREYS et al.

(Michigan Supreme Court, June 8, 1888.)

Negligence Personal Injuries-Argument of Counsel. In an action against a railroad company to recover damages for personal injuries, the court will not set aside the verdict because counsel for the plaintiff stated, in his argument to the jury, that the fireman in charge of the train was susceptible to the attractions of women, and had been allured from his duty; that on a former trial of the case the jury found that there was no negligence on the part of the plaintiff's parents; that there was the same state of facts at the former as in the existing trial; that there was a conspiracy between two of defendant's witnesses to defeat the plaintiff's recovery, although there was no testimony on the subject; and that the attorneys for defendant, the Wabash system and Vanderbilt system, get $15,000 a year, and appealed to the prejudices of the jury with regard to Vanderbilt and Gould.

Same-Evidence-Sufficiency. In such action, three persons testified to seeing the plaintiff, a child of between two and three years of age, upon the track, and the train approaching several hundred feet away; and those in charge of the train testified that they occupied positions where they could have seen the child, had he been upon the track, and swore that they did not see it. Held, that there was sufficient evidence to justify a finding of gross negligence on the part of the defendant.

Same Contributory Negligence. Where those in charge of a train are guilty of reckless negligence in running the train without keeping a proper lookout, and thereby injure a person upon the track, the question of contributory negligence does not arise, if the train-men might by the exercise of reasonable diligence have prevented the accident.

ERROR to Wayne County Circuit Court.

Action by Maud Battishill, an infant, by her next friend, against Solon Humphreys and another, receivers of the Wabash, St. Louis, & Pacific Railroad Company, to recover damages for personal injuries. Defendant appeals from a judgment for the plaintiff. The opinion states the facts. The following are the exceptions referred to by the court:

"Exception 1. Because the plaintiff's counsel, at the trial, stated before the jury that the testimony with regard to the attention of the firemen of the engine being attracted from his duty by some girls by the wayside, was all gone over on the first

trial of this cause; and the counsel for defendants then and there excepted. Exception 2. Because the plaintiff's counsel, on crossexamination, inquired of the said fireman, 'Was the whistle blown at Clark Street?' And said question was objected to, as immaterial. Objection was overruled, and the defendants then and there excepted. Exception 3. Because the plaintiff's counsel asked Henderson, the conductor, on cross-examination, whether or not he had given certain testimony on the former trial. Defendants' counsel objected that the stenographer's notes of such testimony, showing the language of the witness, should be produced, and the court said that ought to be the method pursued; but the court ruled that the witness must answer the question, 'Yes' or 'No.' The defendants then and there excepted. Exception 4. Because, after the testimony was terminated on both sides, the plaintiff's attorney proceeded to argue the case to the jury, and said that he knew of some testimony which the defendants might have introduced with regard to the presence of the child upon the track, and which he had not introduced; and to that statement, before the jury and to the jury, the defendants' counsel then and there excepted. Exception 5. Because the plaintiff's counsel stated, in his argument to the jury, that Newberry, the fireman, called at the last trial by defendants, was not now called, and that he was a person susceptible to the attractions of women, and was a man whom women could allure from his duty, and that said Newberry was undoubtedly allured; to which statement to the jury the defendants' counsel then and there entered his exception and protest, and the court said that ought to be excluded; but the effect of the unlawful statement to the jury was not cured. Exception 6. Because the plaintiff's counsel, in his argument to the jury, stated that the jury, on the former trial of this cause, found that there was no negligence upon the part of the parents of the plaintiff; to which statement the defendants' counsel then and there excepted. Exception 7. Because the plaintiff's counsel, in his argument to the jury, stated to the jury that there was the same state of facts at the former trial as in the existing trial, and read from the printed record which had been before the Supreme Court, in the presence of the jury, to establish it; to which the defendants' counsel then and there excepted. Exception 8. Because the plaintiff's counsel, in his argument to the jury, charged that there was a conspiracy between two witnesses for the defendants, named Bailey, father and son, to defeat the plaintiff, there being no testimony on the subject; to which statement the defendants' counsel then and there excepted. Exception 9. Because the plaintiff's counsel, in his argument to the jury, appealed to the prejudices of the jury with regard to W. H. Vanderbilt and J. Gould; and defendants' counsel then and there excepted

to the statements, as irrelevant and immaterial, not involved in the issue, and wrongly presented, and plaintiff's counsel then and there apologized; but the error was not cured. Exception 10. Because the plaintiff's counsel stated to the jury that the attorneys representing the defendant, Wabash system and Vanderbilt system, get $15,000 a year, as bearing upon the amount of the verdict which the jury should give the plaintiff; and the defendants' counsel then and there excepted, and the plaintiff's counsel then stated that the defendant railroad system could afford to pay plaintiff $15,000.

Alfred Russell for appellants.

Levi T. Griffin for appellee.

CHAMPLIN, J.-This is a suit for personal injuries to a little girl two years and seven months old. The child's parents lived on Ferdinand Avenue, in Detroit, a street which Facts. crossed the track of the Wabash, St. Louis, & Pacific Railway Company at right angles at about 150 feet distant from the house. The case was before us at the January term, 1887 (29 Am. & Eng. R. R. Cas. 411), and we refer to the report of the case for a map showing the location of the place of the accident and the surroundings. It appears from the testimony that plaintiff was injured on the afternoon of a July day in 1884. Her father was a street-car driver, and was absent from home at the time, attending to his daily avocation. His family consisted of his wife and two children, and his wife's father, then about eighty years old. The youngest child was then a baby. His wife attended the family, and did the marketing. Mrs. Battishill, the plaintiff's mother, testified that, on the day of the accident, she went up to the city to buy groceries, and see her sister, who was sick; that she took the street-car at half-past two, leaving the plaintiff at home in the care of her father, who was eighty-one years old and in ordinary health. She left her youngest child at home asleep. Her father was lying down when she left the house, but said he would get right up when she left the little girl with him. She did not take the plaintiff with her up town to get the groceries, because she could not carry her basket with the child. She knew the railroad was close by, but she never knew the child to go near it before. She had been in the habit of going away and buying groceries, and leaving the child. She reached home between four and five o'clock, and found her child had been injured, and the doctors there. The child's leg had been crushed between the foot and knee, and the surgeons amputated the limb between the knee and hip. In some manner, not explained, the child had gone upon the track of the railroad operated by defendants as receivers, and was injured at or near the point where