The scrivener testified that he understood that Lyman had the right to demand, receive, and destroy those instruments at any time. The Petersons gave Lyman a valuable consideration for the land and deed.

Upon the whole record-direct reference has been made to but a small portion of the testimony-we feel compelled to disagree with the learned trial judge, and to find that complainants have not made out by a preponderance of evidence that Lyman Luscombe ever intended to part with his title to the land, or that in passing the deed to John B. he understood or believed that by so doing he was making effective a present transfer and conveyance of property. My Brother BROOKE has set out considerable of the testimony and reached the conclusion that Lyman Luscombe, when the last deed to complainants was made and the performance of a delivery gone through with, intended to make a delivery of the deed, and that by the delivery a present estate passed to the grantees. No opinion should be formed-I do not say that his has been so formed from reading portions of the record. It must all of it be read. When it is read, it will be seen that the old gentleman had not changed his original purpose to keep and control the land so long as he lived. Otherwise, he would have executed and delivered his deed. What he did do was by direction of his scrivener, to whom he had once fully stated his purpose. Everything tends to prove that his original purpose had not changed. His original purpose was understood by the scrivener. But he had been advised by the scrivener that the deed first made was ineffectual to accomplish his purpose, which was to retain the title to and control over the land so long as he lived. He was seeking, by making the second conveyance, to make effectual a distinct purpose, namely, to retain control of his property and title thereto while he lived, and to secure a particular devolution of his estate after his death, without expense. To accomplish this, he did what the scrivener told him it was necessary to do. The understanding of the scrivener of the legal

effect of the instruments he prepared is not of importance, except as it explains the conduct, declarations, and intentions of Lyman Luscombe. It negatives the idea that Lyman Luscombe made a delivery of the deed for the purpose of immediately passing title. It clearly indicates, as does the later refusal of Lyman to execute another conveyance, that Lyman Luscombe did not intend to deliver the deed.

It is not a case in which, after delivery of a deed, the grantor, having changed his mind, seeks to defeat an estate he has created. Nor do the facts as stated herein bring the case within the rule of Dawson v. Hall, 2 Mich. 390; Dyer v. Skadan, 128 Mich. 348 (87 N. W. 277, 92 Am. St. Rep. 461); and Wipfler v. Wipfler, 153 Mich. 18 (116 N. W. 544, 16 L. R. A. [N. 8.] 941). There are cases, and those just cited are such, where the act of making delivery of a deed by the grantor to the grantee is held to conclusively establish the fact of intentional, unconditional, delivery. And the rule of these cases ought to be applied whenever it appears that a grantor intended to deliver and a grantee intended to accept the instrument as a conveyance, without further act on the part of the grantor. But, as has been pointed out, in the case at bar, all of the parties witnessing the delivery understood that no such unequivocal acts of delivery and acceptance were taking place. Precisely the contrary. Suppose that one ignorant of the law was instructed by one supposed by him to have proper knowledge, that to carry out his clearly expressed and understood purpose he must do an act which, in law, if intentionally done, completely frustrated such purpose; would it be held that a court of equity could not give relief from the apparent effects of the fraud thus committed? The case at bar is the case supposed, although the scrivener was innocent of any intention to defraud. Unmistakably, the testimony points to a desire and intention on the part of Lyman to retain title and to provide by some means other than a last testimonial for the devolution of the estate after his death. Unmistakably the act of delivering the deed was

done under the belief that it was necessary to the accomplishment of his purpose, and did not negative and frustrate that purpose, and all parties so understood it.

Holding this view, we determine that the decree of the court below should be reversed, and a decree entered in this court dismissing the bill of complaint, with costs of both courts to appellants. Appellants should have a decree for possession of the premises, and for an accounting as prayed for in the cross-bill.

STONE and BIRD, JJ., concurred with OSTRANDER, J.

BERRY v. HARBOR SPRINGS RAILWAY CO.

1. RAILROADS-NEGLIGENCE-GROSS NEGLIGENCE.

Where defendant's engineer saw plaintiff some distance ahead walking along a path close beside defendant's tracks, and proceeded slowly, with his engine under control, and both hands engaged in operating it and in ringing the bell, so he could not blow the whistle, and where plaintiff, whose attention was engaged by another passing train, failed to hear the bell ring, and stepping upon the track or dangerously near it, about ten feet in front of the locomotive, was struck before the engineer could stop, and it appeared that the engine ran only a few feet after striking plaintiff, who was knocked down but not crushed, the engineer could not be held guilty of gross negligence.

2. SAME CONTRIBUTORY NEGLIGENCE.

Plaintiff was guilty of contributory negligence as matter of law.

Error to Emmet; Shepherd, J. Submitted January 11, 1912. (Docket No. 49.) Decided December 17, 1912.

Case by Helen Berry against the Harbor Springs Rail

way Company for personal injuries. Judgment for plaintiff. Defendant brings error. Reversed; new trial denied.

Halstead & Halstead, for appellant.

W. S. Mesick and G. E. & M. A. Nichols, for appellee.

MCALVAY, J. This is an action on the case brought by plaintiff against defendant to recover damages for personal injuries to plaintiff, claimed to have been caused by the negligence of defendant's servants. A verdict was rendered in the case in favor of plaintiff. From a judgment entered upon such verdict defendant has brought the case before this court upon a writ of error, asking a reversal on account of errors, which are assigned. As far as may be necessary in the consideration of this case to state any facts, the court will accept the statement as made in the brief of the appellant, for the reason that the appellee has ignored Rule No. 40 (68 N. W. viii) of this court, and not pointed out in a single instance wherein it is claimed the appellant's statement is incorrect, and has made a new statement of great length.

The injury to the plaintiff occurred in the village of Harbor Springs, Emmet county, where defendant owns and operates a narrow-gauge logging road, which crosses the tracks of the Grand Rapids & Indiana and Bay street at right angles. On defendant's main track two switches are placed to connect with side tracks, one north of the Grand Rapids & Indiana tracks and one south of those tracks. These switches are operated from a small target house. The north switch is about 120 feet north of this operating station.

On the day of the injury, plaintiff approached defendant's main tracks from the east, and saw an engine pushing a car of coal ahead of it approaching from the south, the engine heading north. Plaintiff stepped on the east side of the defendant's track, and waited for this engine

and car to pass going north. While waiting she saw a man, supposed by her to be in the employ of the defendant, in this target house. She knew what the target house was used for, and understood he was there for the purpose of turning the switch on defendant's track. She knew that the north switch could be operated from there, and knew of no other switch to the north that could be so operated. She was familiar with the location of the main line and the switch tracks of defendant's road, having often walked on both. After the engine and car of coal had passed plaintiff, she continued on west in the path and on the north side of what is known as Bay street. Defendant's switch track, from the north switch stand, above mentioned, curves in a southwesterly direction, and as it approaches Bay street curving to the westward it straightens out and runs parallel with such street. This curve,

which starts at defendant's north switch stand, ends where this switch track meets the path at Bay street, and is about 175 feet in length. This engine and car continued on its course up the track far enough to permit the switch to be thrown by the man in the operating station, and let them in on this curved track. This he did, and then went across to the switch track to meet the engine and car, upon which he acted as a brakeman, to cut the car off for the lower switch. When the switch was thrown, the engine backed in on the switch track, pulling the car of coal. This was a small, light engine of low gear, and adapted to climbing grades. The track was slightly downgrade, and, as soon as it got onto the switch track with a car of coal, the steam was cut off, and it coasted slowly down the hill, with the tender first, at a speed estimated as 2 to 4 miles per hour. It was intended to place the car of coal further down by cutting it off, and making what is known as a "flying switch." The grade on the switch track as it descends from the north switch stand is 2.3 per cent., for a short distance, then two per cent., then on a level at a point where this track comes in north of Bay street, and