engine, a log fell from the center car of the train, throwing the car from the track, wrecking the rear portion of the train, and injuring the plaintiff. Plaintiff claimed that the log was thrown from the car by the jolting of the car over the rough road, and the negligence charged was the failure of the defendant to maintain a safe roadbed. The logs were put upon the cars by the shippers, but placed in position by the trainmen, and plaintiff testified that he in person placed most of the logs. Plaintiff further testified that at the time of the accident the train was running at the rate of from 12 to 20 miles an hour; that the falling of the log was the cause of the accident; and that he did not know whether the log was released because one of the stakes loosed or not.

Defendant offered in evidence the following rules and regulations of the company, with which it appears plaintiff was familiar at the time of the accident:

"Conductors will see that all logs are loaded so as to ride safely. All logs that are liable to roll off in transit must be unloaded at starting point before train is moved."

"Delayed passenger trains may regain their card time when it can be done with perfect safety, but in no case must the speed of freight trains exceed 20 miles an hour, one mile in 3 minutes,-to regain lost time. The speed of loaded log trains on the main line must not exceed 12 miles per hour; when light, 15 miles per hour; and on branches 10 miles per hour, loaded or light."

In order to hold defendant liable there must be evidence tending to show negligence on its part as the proximate cause of the accident. The falling of the log caused the wrecking of the train. If one of the stakes came out, then clearly that released the log; and if the stake came out because carelessly put in, that carelessness was directly chargeable to plaintiff or to one of his

fellow-trainmen. Again, admitting that the log was thrown off by the jolting of the car over the rough road, it must be conceded that the jolting was aggravated by the high rate of speed of the train. The rules provided that the rate of speed of log trains on branch roads should not exceed 10 miles per hour, while this train was making from 12 to 20 miles per hour at the time of the accident. This negligence undoubtedly contributed to the wreck of the train, and, inasmuch as it was that of fellow-servants, it is chargeable to plaintiff, under the repeated rulings of this Court.'

The record in this case does not purport to contain all or substantially all of the testimony taken in the case. Sufficient does appear to support the judgment; but were it otherwise, we would presume that the evidence introduced was sufficient to sustain it. McGraw v. Insurance Co., 54 Mich. 146; Barnes v. Railway Co., Id. 243. The judgment is affirmed, with costs to defendant. CHAMPLIN, C. J., MORSE and GRANT, JJ., concurred. LONG, J., did not sit.

MINERVA BIRD, ADMINISTRATRIX, ETC., V. THE FLINT & PERE MARQUETTE RAILROAD COMPANY.

Railroad companies-Accident at crossing-Contributory negligence. A train standing upon a highway, with an engine attached, is of itself notice of danger; and, in the absence of a special assurance on the part of the railroad company to one desiring to

'See Hunn v. Railroad Co., 78 Mich. 514 (head-note 8, and cases cited); Hoar v. Merritt, 62 Id. 386; Peterson v. Railway Co., 67 Id. 102; Hammond v. Railway Co., 83 Id. 334.

86 79

87 612

87 620

cross between two cars, over the couplings, that he may safely do so, so far as any movement of the train is concerned, he assumes all risks incident to such an attempt.

Error to Oakland. (Moore, J.) Argued April 24, 1891. Decided May 8, 1891.

Negligence case. Plaintiff brings error. Affirmed. The facts are stated in the opinion.

Moore & Moore (John Fitzpatrick, of counsel), for appellant.

W. L. Webber, for defendant.

GRANT, J. The deceased was a school-teacher aged 27 years, and in the full enjoyment of all her faculties.

The defendant's road crosses a highway running through. the village. of Milford, the railroad running nearly north and south, and the highway running east and west. The depot stands west of the railroad, and near the intersection of the road and the highway. There were across this highway a main track and a side track. A freight train was standing on the side track across the highway, waiting for the arrival of a passenger train, upon the arrival of which, as was the well-known custom, it immediately pulled out. The deceased, living east of the crossing, intended to take passage upon the incoming train. Finding the freight train across the highway, she undertook to climb through between the cars. She had climbed upon the coupling of the draw-bars, and in jumping therefrom her dress caught upon the coupling-pin; she fell just as the train started, was drawn under the cars, and killed.

The only allegation of negligence against the defendant is that, contrary to the law, it had permitted this train to stand upon the highway more than five minutes; that

it had for a long time permitted its freight trains to stand there, obstructing the road for more than five minutes at a time; that people had been in the habit of crossing the street while trains were standing there, under and between its cars; and that its employés in charge of its freight trains had frequently assisted persons in so passing; and that, therefore, the defendant by this conduct had invited the public so to pass.

The testimony on the part of the plaintiff shows that deceased started from her residence for the depot as the incoming passenger train whistled for the station; that she walked fast towards the depot, and, seeing the freight train across the highway,, she said to two friends, as she passed them, "Girls, what shall I do?" One of them replied, "Wait, and the train may pull away." But she replied, "I have got to make that train;" and she thereupon walked up to the train, and attempted to cross, with the result above stated.

The learned circuit judge instructed the jury that "for any person to undertake to pass between two cars over the couplings, when there was an engine attached to the train, and in danger of moving out immediately, was such an act as no person possessed of ordinary prudence would engage in;" and he added that it would be more hazardous for a woman, laboring under the disadvantage incident to her apparel; and instructed the jury to find. a verdict for the defendant.

Under no view of the case can the defendant be held to have extended an invitation to the traveling public to cross under or between its cars, under these circumstances. A train standing upon a highway, with an engine attached, is of itself notice of danger; and, in the absence of a special assurance on the part of the defendant to one desiring to cross that he may safely do so, so

86 MICH.-6.

86 82 112 356

far as any movement of the train is concerned, he assumes all the risks. To attempt to cross, in the absence of such assurance, is gross negligence.

Judgment affirmed.

CHAMPLIN, C. J., MORSE and MCGRATH. JJ., concurred. LONG, J., did not sit.

ARTHUR TREDWAY V. JOHN F. ANTisdel.

Bills and notes-Action by surety-Evidence-Payment-Protest—
Joint maker-Leading questions.

1. A judgment should not be reversed for allowing leading questions regarding matters not material to plaintiff's case, and which work no injury to the defendant.

2. In a suit upon a promissory note the defendant gave no notice of set-off, and on the trial his counsel stated to the court that he wished to show that the plaintiff had sent his check to the defendant for the difference between the amount due on the note and his indebtedness to the defendant, which proposed testimony is held properly rejected, the statement failing to show either payment or settlement, for which purpose it was alone admissible.

8. In a suit by an indorser to recover from the maker the amount which he had been obliged to pay on a note, the defendant sought to introduce in evidence the testimony of the plaintiff taken in another suit, in which he testified to mortgaging his property to raise money to pay the note in question, which he deposited to the credit of the firm of which he and the defendant were members, and immediately gave the firm check to pay the note; the claim being that the testimony tended to show that the note was paid from partnership funds. No other testimony was offered in support of such contention. And it is held that the court would not have been justified in admitting the testimony, and permitting the jury to find from it that the note was so paid.