power to consider again the questions and arguments heretofore and now presented by appellant.

It has been the practice to regard the judgment of this court when entered of necessity and not by a concurrence of the opinions of the justices as no different, in effect, from a judgment entered by the vote of a majority of the justices. As was said in Lyon v. Circuit Judge, 37 Mich. 377:

"The same reasons of public policy, in favor of the conclusiveness of the judgment, apply to such cases as to others. The case has been heard and determined, and the public interest and the interest of the parties alike demands that there shall be an end of litigation."

There has been no departure from this rule. There are exceptions, as when a prior decision is erroneous, recognized in some of the States; but the weight of authority and of reason is in support of the rule that a prior decision is conclusive of the same question on a subsequent appeal; is the law of the case. See the cases collected in a note, 34 L. R. A. 321.

Conceding this to be the rule, what difference does it make that the former judgment of this court was entered upon a demurrer to the declaration, which demurrer denied the right of plaintiffs to recover upon the state of facts alleged in the declaration? No good reason is suggested for holding the judgment of this court conclusive in one case and not in the other, although counsel for appellant plausibly urge various reasons for so doing. In the last analysis, the argument is, and in any like case it must be, addressed to the proposition that the former decision was erroneous, for whatever reason entered, and that by a concurrence of opinion the justices should have agreed to a different conclusion and result.

It is conceded by appellees that one question is open to appellant, which is whether there was consideration for the addition to the policy of the loss payable clause.

As ground for a directed verdict in its favor, defendant urged:

"Ninth. That the 'loss payable' clause attached to the policy of insurance declared upon was attached after the issuance of said policy, and that no consideration passed from the plaintiff to the defendant which could support a policy running to the plaintiffs.

"Tenth. That no consideration passed from plaintiff to defendant at the time the 'loss payable' clause was attached, which would support a waiver of defendant's rights under the policy of insurance sued upon."

It is said by appellant, in argument:

"There is no escape from the conclusion that, if a new insured party is brought into the policy contract by the loss payable clause, then there must be a new consideration shown therefor, for the entering into of the new contract, and for the waiver by the company of the important safety clauses of the policy."

The point is not open, is ruled by the former decision and judgment. The language employed in the opinion of Mr. Justice MOORE affirms the right of the plaintiffs to recover upon the policy of insurance in view of the facts alleged and proven. As I read it, it cannot be construed as making plaintiffs' right to recover dependent upon proof of any new consideration moving to defendant for attaching the rider, whatever the legal consequences of attaching it may be.

Assuming the question to be undecided, and important as a question of fact, upon whom rested the obligation to prove a want of consideration? Not upon the plaintiffs. Defendant offered no testimony, and elicited none from plaintiffs, tending to prove a want of consideration.

It follows that the judgment must be, and it is, affirmed.

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

LITTLEWOOD v. DETROIT UNITED RAILWAY.

1. STREET RAILWAYS-NEGLIGENCE-DEATH- AUTOMOBILES -CONTRIBUTORY NEGLIGENCE.

In an action for the negligent killing of plaintiff's intestate, at a crossing, evidence that the deceased stopped his automobile three or four yards from the interurban track, that the view was obstructed by a house in the direction from which the car approached, that when he saw the car he tried to back up, but his automobile went ahead then started back, and that the interurban car was operated at a speed of about 50 miles an hour, without signals of any kind, though one of plaintiff's witnesses testified that the automobile was only seven or eight inches from the car track when it stopped, supported a verdict for plaintiff and raised an issue of fact as to the questions of negligence and contributory negligence.

That the testimony of the witnesses was negative rather than affirmative upon the subject of sounding the signals, did not require the court to direct a verdict, when it was uncontradicted by any testimony offered by defendant railway company.

Error to Wayne; Van Zile, J. Submitted October 21, 1915. (Docket No. 43.) Decided December 21, 1915.

Case by Margaret H. Littlewood, as special administratrix of the estate of Charles F. Littlewood, deceased, against the Detroit United Railway for the unlawful killing of the plaintiff's intestate. Judgment for plaintiff. Defendant brings error. Affirmed.

The following is the blueprint referred to in the opinion.

Corliss, Leete & Moody (Frederic T. Harward, of counsel), for appellant.

Bishop & Kilpatrick, for appellee.

STONE, J. This is an action to recover damages for injuries sustained by plaintiff's decedent, resulting in his death two days after the injuries complained of, and in the destruction of his automobile, occasioned by a collision of an interurban car belonging to the defendant with the automobile owned and being driven by plaintiff's decedent on August 31, 1913, on Connors Creek road, at its intersection with Gratiot road, in Wayne county. Plaintiff's decedent and husband was 50 years of age. On the day of the accident he had been engaged in carrying passengers, for hire, in his automobile, which had been his business for some time. He was familiar with the crossing and location. About 4 o'clock in the afternoon of said day plaintiff's decedent was driving alone in his automobile northerly

on Connors Creek road toward its intersection with Gratiot road. The attached blueprint is taken from the record, and will aid in understanding the locus in quo, and its surroundings. Connors Creek road runs in a northwesterly direction, although the witnesses speak of it as running north. It is 50 feet wide. Gratiot road runs northeasterly, and is 55 feet wide. The house spoken of as the "Trombley house" is a two-story frame dwelling situated on the northeast corner of these roads. It is 9.7 feet from the front of this house to the easterly lot line of Gratiot road, and 12.9 feet from said lot line to the first rail of the interurban track upon Gratiot road, making 22.6 feet from the front of the house to the easterly rail of the car track. The switch is northerly of the intersection. It is 101.4 feet from the southerly point of the switch-that is, the point nearest to Detroit-to Connors Creek road, and 597.6 feet from the northerly point of the switch, that is, the point nearest Mt. Clemens, to said Connors Creek road. Vanderbeck's saloon was situated on the southwest corner of the roads, with steps fronting on Gratiot road.

The declaration, after stating the duty of the defendant, alleges that its servants, agents, and employees did not exercise reasonable care, caution, and diligence, in that they did not ring a bell or sound a gong, or give any notice or warning of the approach of said car, and did not approach with care and caution, and did not have said car under control, and did not stop said car when plaintiff's intestate with said automobile was being driven, or about to be driven, upon said track; that the crossing was of a dangerous character, and that the defendant did not when approaching said Connors Creek road keep any lookout or keep said car under control so that it could be immediately stopped and controlled; that there were obstructions in the nature of buildings adjacent to said intersection,