"A. I went at right angles. It would be northeast and southwest. In crossing it would be just like kittycornering across the street.

"Q. How long was it before you started to make the turn that you looked back to see the car?

"A. After I looked, I turned across the track immediately.

"Q. How far were you from the track, how far was your off horse from the track?

"A. I should think about four feet. I was driving right along by the side of the track, close to the track. I should think somewhere about four feet, possibly. My horses were walking.

"Q. About how fast-are you able to judge how fast they were walking?

"A. Well, yes; I should think they were going about four miles an hour, as near as I can judge.

"Q. Where did you say the car was when you looked? 'A. At Madison street or a street north.

66

"Q. In Madison street?

"A. Jefferson or the street north of where I went across. I think they call that Jefferson.

"Q. And did you notice anything about the rate of speed they were going at, anything particular?

"A. I could not say as to that. I didn't consider-no; I could not tell what rate of speed they were going.

"Q. You didn't notice anything unusual?

"A. I didn't notice anything unusual as to the rate of speed.

"Q. Now, make it clear just where it was, tell us first where it was you attempted to cross?

"A. At the intersection of Madison street and the avenue, at the north sidewalk.

"Q. At the north crosswalk of Madison?
"A. Yes; where the people would walk.

What I

mean by the sidewalk is where the people would walk, crossing, if the sidewalk went straight across there.

"Q. And whereabouts were you when you struck with reference to the crosswalk?

"A. It must have been right on the walk. My team had gotten across the walk. The wagon had a 16-foot box. The car struck the wagon just ahead of the hind wheel."

The charge of the court complained about, with its immediate context, was:

"Prudence dictates that one about to cross a street railway track should observe whether a car is near enough to interfere with reasonably safe crossing. So in this case, when Mr. Rouse started to cross the railway track, it was his duty to look and see whether a car was nearby, and act as a reasonably prudent man should act under the circumstances. Mr. Rouse saw the car coming, and it was his duty to observe the apparent speed it was traveling, so far as it was possible in the position he was to make such observation, and not to make the attempt to cross with the car coming, unless it was reasonable to believe it could be done in safety. And what he should have believed and should have done is to be determined by the standard of what a reasonably prudent man under the same circumstances would have believed and have done. That is the test, gentlemen, we have for determining reasonable care and prudence. What would an ordinarily prudent person under the same circumstances have done? Where did Mr. Rouse start to turn his team to cross the track? You have heard the evidence. It now rests for you to say. Where was the car when Mr. Rouse started to turn his team across the track? As I said before, it was the duty of Mr. Rouse when he wanted to cross the track to look and see where a car was, whether one was coming, and, if he saw one coming, then he was required to bring to bear upon the matter of whether he could safely cross with reasonable prudence. He was a user of the highway. He had a right to be upon the highway. He had a right to cross the track wherever he saw fit, provided he undertook to do so at a time when it was reasonably safe to cross.'

We must believe that the statement that Mr. Rouse saw the car coming was inadvertently made, because there is abundant testimony tending to prove that he did not see the car at all and never looked for it. It was based entirely upon the testimony of Rouse. It is said in the brief for appellee that the court was "very careful not to offer any intimation as to whether Rouse turned to cross the tracks immediately after looking or not. That was the question in dispute." It is the intimate connection between the fact of looking and the fact of turning, as testified to by Rouse, which, more than anything else,

convinces us that the error was prejudicial and requires a reversal of the judgment. His reason for looking for a car was his desire to cross the street. A finding that he saw the car coming, based solely upon his testimony, strongly supports, if it does not necessarily involve, the conclusion that he immediately turned to cross the street. And thus it supports, if it does not involve, also, the conclusion that in the act of crossing he was in view of the motorman while he ran the car a block or more. The statement that he saw the car coming cannot well be separated from his purpose in looking and his testimony that he immediately attempted to cross the street. There was positive testimony concerning the speed at which the car was run wholly inconsistent with the fact that Rouse looked and turned to cross the street as and when he said he did. The motorman testified that he was watching Rouse, saw him turn across the street, and that he did not look just before he turned to cross. A considerable number of witnesses testified that the wagon was south of Madison street when it was struck by the car. A witness, a policeman, testified that shortly after he was injured, and before he was operated upon at the hospital, Rouse said to him, "What did I do, Hank-drive right in front of the car?" This and other portions of the testimony, considered together, tend to support the conclusion that Rouse did not look for a car, and did not see the car which struck his wagon.

The last contention to be noticed appears to us to be without merit. Mr. Rouse was injured March 8, 1907, and died May 19, 1909. The testimony tends to prove that during the winter, or some part of it, immediately preceding his death, he was ill, and that the cause of his death was an affection of the heart. Defendant requested the court to charge the jury that consideration of pecuniary loss should be confined to the period from his injury to April 23, 1908, when he gave his testimony at the first trial. This proposition is, as we understand it, based upon

164 MICH.-31.

the idea that there is no competent testimony of any pecuniary loss after that time, and also upon the assumption that much of the time thereafter he was incapacitated by the trouble which caused his death. His wife, however, gave testimony tending to prove that during the second year after his injury he could do no more than he did during the first year. The court instructed the jury that compensation for loss of power to earn money could not be given for any period after his death, and must not go beyond the time of his last sickness; that the accident did not cause his last sickness, and, if he was disabled by his last sickness from working and earning money, such disability was not a result of his injuries; that no damages could be allowed for any loss of earning power resulting from his last sickness, none for expenses attending his last sickness, none upon the theory that his life was shortened by his injuries, none for pain and suffering caused by his last sickness. We believe the jury could not have misunderstood the instructions. We do not perceive how the defendant could have been prejudiced by them.

For the error pointed out, we feel obliged to reverse the judgment, and grant a new trial.

BIRD, BLAIR, HOOKER, and STONE JJ., concurred.

RAYMOND v. SPITZER.

SPECIFIC PERFORMANCE-FRAUD-REMEDIES-DEFENSES. Defendant agreed in writing to convey to the vendee or his assigns certain premises, in consideration of the transfer to defendant of $1,000 in stock of a building and loan association. The vendee agreed to pay the installments required to mature the stock. The vendor claimed that the vendee

falsely represented that the stock would mature in eighty months upon the specified payments. In fact it took several years longer than that time to mature. Defendant took no sufficient steps to forfeit the contract, and attempted at the maturity of the stock to collect the principal from the building and loan association. The original vendee assigned his interest in the property to complainants who did not participate in the alleged fraudulent representations. In a suit for specific performance, held, that a decree enforcing the provisions of the contract should be affirmed, and that no equitable considerations require that complainants be remitted to their action at law.

Appeal from Ingham; Wiest, J. Submitted January 6, 1911. (Docket No. 36.) Decided February 1, 1911.

Bill by Rufus Raymond and Guy A. Raymond against Mary A. Spitzer and the Capitol Investment, Building & Loan Association for the specific performance of a land contract. From a decree for complainants, defendant Mary A. Spitzer appeals. Affirmed.

Lawton T. Hemans (Louis B. McArthur, of counsel), for complainants.

Frank L. Dodge, for defendant Spitzer.

OSTRANDER, C. J. Under date October 18, 1895, the defendant Mary A. Spitzer, owning some property in the city of Mason, Mich., agreed to sell the same to one Charles S. Clark, and the parties executed and acknowledged in writing an executory contract for the purchase and sale of said premises, dated on that day, to the terms of which, because of the peculiar nature of the controversy, particular attention must be given. The purchase price stated in the contract is $1,000, and this the second party agreed to pay as follows: He was to transfer and assign to the vendor 10 shares of Class B stock in the Capitol Investment, Building & Loan Association of Lansing, Mich., evidenced by a certain certificate dated October 1, 1894, issued to one Irish, and by him in July, 1895, as