cient, and compel their surrender, or cancellation. In Andrews v. Auer, supra, the evidences of right to do business were obtained by fraud; in this case, it must be presumed, they were obtained because of a misapprehension of, or lack of knowledge of, facts which, if understood, would have led to the refusal of the right.

In this view of the matter, the prosecuting attorney was a proper complainant, informing officer, the prayer of the bill may be treated as amended, and a decree entered in this court conformably with the views herein expressed. Neither party will recover costs of this appeal.

BROOKE, C. J., and MCALVAY, KUHN, STONE, BIRD, MOORE, and STEERE, JJ., concurred.

BRALEY v. GRAND TRUNK RAILWAY COMPANY OF

CANADA.

1. RAILROADS - CROSSING ACCIDENT - NEGLIGENCE - DEATH - SIG

NALS.

Where decedent was killed by defendant's train at a crossing, and decedent drove a gentle team which was under control, and was struck by a freight train going from 15 to 40 miles an hour, as the conflicting testimony showed, and it appeared that the headlights were burning and the usual signals were given at the crossing, and plaintiff claimed that decedent supposed the freight was a regular passenger train which was due at the same hour and which ordinarily stopped at the station before passing over the crossing, and the testimony disclosed no reason why the train should not be running at the

speed which the evidence showed as it passed the crossing, defendant as a matter of law was guilty of no negligence and a verdict should have been directed in its favor.

The contention that the plaintiff's intestate believed the train was a passenger train and would stop at the crossing, based upon no evidence but inference, and coupled with proof that decedent did not stop before passing over the crossing, and was struck by the train, was not sufficient to free plaintiff's case of the inference that decedent was guilty of contributory negligence.

3. SAME-EVIDENCE-TRAINS-OPERATION-LOOKOUT.

Evidence considered and held, to show sufficient care on the part of defendant railroad company in maintaining a lookout and in operating the train at the crossing. CONTRIBUTORY NEGLIGENCE-STOPPING TO LOOK.

4. SAME

It is a rule of law, not a mere rule of evidence, that because a railroad is of itself evidence of danger and trains are run at high speed and cannot turn out for travelers, persons crossing the track must stop, look and listen before entering upon the point of peril.

Error to Livingston; Miner, J. Submitted January 20, 1915. (Docket No. 19.) Decided April 19, 1915.

Case by Elmer M. Braley, as administrator of the estate of William R. Wood, against the Grand Trunk Railway Company of Canada for the unlawful killing of plaintiff's intestate. Judgment for plaintiff. Defendant brings error. Reversed.

Harrison Geer (W. K. Williams, of counsel), for appellant.

Louis E. Howlett (Odell Chapman, of counsel), for appellee.

OSTRANDER, J.

Plaintiff's intestate, riding in a wagon drawn by a team of horses, was killed by defendant's train on a highway crossing in the village of Gregory (not incorporated), in Livingston county, at about 7:31 o'clock in the afternoon of November

25, 1912. He was a farmer, 51 years old, possessed of his faculties, had lived nearly all his life on the same street, 111⁄2 miles north of the crossing. Gregory was his market place, and he was accustomed during the winter to go to town, on an average, two or three times a week. He was a good teamster, and drove a gentle team. Upon the occasion in question the team had been hitched in the street 267 feet south of the crossing. From this point it was driven directly to and upon the defendant's track immediately in front of the moving train. The street intersects the track at right angles; the station house being 48 feet east of the east line of the street, and 141⁄2 feet south of the south rail of the track-a small structure 161⁄2 feet square. The street was lighted; one electric light hanging very nearly over the railroad crossing. The train, No. 43, was a freight, with nine loaded, no empty, cars and a caboose, west-bound, was late, did not stop at Gregory, and was running at a speed about which witnesses do not agree from 15 to 40 miles an hour. Plaintiff recovered a judgment for $4,000, and, in seeking a review of the trial, the defendant contends, as it did in the court below, that no negligence of defendant was made out, and that contributory negligence of plaintiff's intestate was established. There was a motion for a directed verdict and various requests to charge, which, with the exceptions taken, raise these principal propositions.

Questions usually presented in cases of this character are absent. The headlight upon the locomotive was burning, and the usual signals were given. The court in the charge said to the jury:

"I think I am warranted in saying in this case that Mr. Wood must have known that a train was coming."

Plaintiff's counsel said in argument:

"Now, what difference in this case does it make whether or not Mr. Wood, upon that occasion, knew

that a train was coming or not? He had no reason to believe that it was a different train from the one that the defendant told him he might expect to be there. He heard it coming, gentlemen. First, it was right here on that time that the passenger should be there, because he heard it give the same signals, ring the same bell that the passenger train would be giving or ringing, if it was there.

"I notice my Brother Williams acts as though he thought there wasn't any evidence of that in the record, and for his benefit I am going to tell you. The gentleman has said, 'I don't know whether it gave the same signals or not;' but, out of their own breath, the witness that lived there, within 30 rods of the track, heard it all, saw the headlight, and he says, 'I thought it was the passenger train.'

"Gentlemen, as square-headed, sensible men that can think of their own accord, can they now tell us it was giving different signals than a passenger train, when all those old citizens and persons living near the track thought it was a passenger train on account of hearing the same signals, the same bell, the same kind of a headlight?

"Not only did Mr. Wood hear the same signals that the passenger train usually gave and give them at the same place, but, gentlemen of the jury, he saw the same headlight, and it was with a great deal of pleasure that I heard my brothers put in that testimony of that fact in this case, and it was with far greater pleasure that I heard them arguing that fact to this jury that those signals were all given there. What effect did it have upon poor Mr. Wood? Oh, it was saying to him, 'Here's the passenger train; don't you hear that whistle?' I have no doubt but he heard it, and gentlemen, I am perfectly willing to concede all that my brothers have said about his hearing it and about his hearing the bell and about his hearing the noise of the train coming down. Of course he did. He saw the headlight, and what did it do? It lured him on; it enticed him on to believe that it was a passenger train going through. Yes; like the song of the siren it lured him on to his danger and his fate, and the daughter was left an orphan, and the good wife was made a widow."

185 Mich.39.

The real issue, upon the decision of which the plaintiff relied, at least after the trial had progressed for some time, involved the admission of the fact that plaintiff's intestate knew that a train was approaching. His theory was fairly stated by the learned trial judge in a portion of his charge to the jury as follows:

"Plaintiff further claims that at the time said freight train passed through said village of Gregory there was a passenger train which was due, and that a freight train was running on the passenger train's schedule time or one minute thereafter; that plaintiff's intestate was acquainted with the fact that said passenger train was due at that hour, and, relying upon said knowledge, drove across said railroad crossing at Main street. So that presents a question for your consideration, to determine whether the railroad company at the time in question was in the exercise of such care and took such precautions as the dangerous nature of the crossing required. Ordinarily the giving of the statutory signals is sufficient to protect travelers upon the highway who desire to cross the railroad track; but, if you should find in this case, by a preponderance of all the evidence in the case, that a passenger train was due at Gregory from the east at 7:30 on the day in question, and that it did not arrive there until some time thereafter, but that at 7:31, or one minute later than the schedule time of the passenger train, a freight train from the east went over said railroad and across said highway at upwards of 40 miles per hour, and it was dark, and there were obstructions between the track upon defendant's right of way and the public highway south of said railway track which obstructed or partially obstructed the view of the engineer or fireman and prevented them from seeing pedestrians coming from the south of said railroad track on said highway, and also prevented or partially prevented pedestrians coming from the south upon said public highway, going across said railroad, from seeing an approaching train, then and under such circumstances it woud impose an additional duty upon the railroad company to exercise additional caution in approaching the crossing, and such duty would be commensurate with