snow

blocked the crossing. If there had been no snow-bank there, but level ground, no one would claim that the attempt to walk around the car was in itself negligence; and whether or not the walking on top of this bank of was negligence was, under the testimony of the condition of such snow-bank, a question for the jury. It cannot be considered that he was bound to know, as claimed by defendant's counsel, that this train, without any brakeman upon it, and without any warning, was liable to move at any moment. How often in cities, where a number of tracks cross the street, do men and women pass around the end of stationary trains, when perhaps if they should happen to trip, and fall across the track, and the train start suddenly, without previous warning, they might be caught under it. In such a case, if the railroad employés were negligent, would it be said, as a matter of law, that the contributory negligence of the person injured must preclude recovery? I think not, and that the facts and circumstances would properly be submitted to a jury for them to determine whether or not there was negligence in such an attempted crossing.

The next subject of inquiry is the negligence of the defendant, and in this connection it will be proper to notice the testimony on the part of the plaintiffs as to this road, the crossing of which was blocked by this car. The circuit judge was satisfied that there was no evidence to go to the jury to show it to be any other than a private road of defendant's, upon which it owed no duty to the public or to travelers. The declaration of plaintiffs avers it to be a "public traveled highway;" that Root was lawfully traveling upon such highway, and attempted, as he had a right to do, to cross the furnace track at the highway crossing;

"That while he was so attempting to pass along said highway, across said track at said crossing, without fault

on his part, said cars and locomotive, without the ringing of a bell or any other warning from said locomotive. whatever, and in the absence therefrom of brakemen, and while apparently abandoned, and without any warning from any brakeman thereon, and in the absence of any flagman or watchman at said crossing, as aforesaid, and without any warning of any kind whatever to plaintiffs' intestate, suddenly started with said cars backwards across said crossing, the engine being at the rear of the train as it moved, and thereupon, by means of the neglect and misconduct of the defendant, as aforesaid, and without his fault, said James A. Root was thrown down and under said cars, run over, and pushed and dragged along, under said moving cars, a long distance, to wit, ten rods, and thereby so badly injured that he died within, to wit, two hours thereafter."

There was testimony on behalf of plaintiffs that this road had existed since 1863; that there is no other means of going, and no other roads, between Palmer and Negaunee. A creek called "Partridge Creek" is the south boundary line of the defendant's property. The highway crosses a bridge over this creek, which bridge was repaired at different times by the city of Negaunee. The village of Palmer in 1886 had 800 inhabitants. The mail between the two places has been carried over this road since 1872. The road did not run exactly where it does now, across the defendant's premises, until 1881. In that year these furnace tracks were laid down, and the company made two crossings, the one where Root was killed, and one. above. Since that time the travel has gone over the road where the accident took place, except in cases of heavy loads, when they use the next crossing above. One witness, Mr. Kirkpatrick, testified that there was another little narrow road running from Negaunee to Palmer, but it was a roundabout way and used only for women to drive to the city who were in fear of the locomotive scaring horses on the road across the furnace premises. It was shown by this witness, on cross-examina

tion by Mr. Healy, of counsel for defendant, that it was customary in the Upper Peninsula for the public to use the private roads of mining locations without asking the consent of the owners. It was not shown that the public authorities of Negaunee had ever done any work upon this road within the limits of defendant's location, but testimony was offered and introduced tending to show work upon the road by the city authorities up to the line of such location, but this was afterwards excluded by the court.

I think it was competent to show that this road across the company's premises was a connecting link between a public road from Palmer to Negaunee, and that the testimony offered was proper for that purpose. No road was ever legally laid out between Palmer and Negaunee, but the plaintiffs claimed it was a road by user. This road was used by the public before these furnace tracks were constructed, and when they were laid down the defendant made a substantial crossing for this road, planking it between the rails of its track. The furnace bank was there in 1863, when this road was first used from Palmer to Negaunee, and such road passed over defendant's premises until 1881. When these tracks When these tracks were laid in that year, the defendant, for its own convenience, in making a crossing changed the line of the road somewhat, but this does not change the situation.

There was competent testimony offered to show that the public had accepted the dedication of this highway by working upon it between Palmer and Negaunee up to the line of defendant's property on each side, and had repaired and maintained a bridge, half of which stood on defendant's premises. There is no doubt but it was a public road by user of more than 20 years, except upon the defendant's premises, and that the road upon its property was used for the same length of time as a con

necting link between the two ends of this road by its full consent. It was not necessary that it should be laid out, or attempted to be laid out, by the highway authorities. It could become a public highway by user alone. Bumpus v. Miller, 4 Mich. 159; Detroit v. Railroad Co., Id. 209; Baker v. Johnston, 21 Id. 319; Wicks v. Ross, 37 Id. 464; Peninsula Iron, etc., Co. v. Crystal Falls, 60 Id. 523 (27 N. W. Rep. 666); Kruger v. Le Blanc, 70 Id. 76 (37 N. W. Rep. 880).

This was a country road, and as such could be accepted by the public by user alone. It was not necessary to show that there had been a formal acceptance by the highway authorities. Public user alone, when sufficiently general and long continued, will constitute an acceptance. See Detroit v. Railroad Co., 23 Mich. 209, citing Green v. Canaan, 29 Conn. 157; see, also, Baker v. Johnston, 21 Mich., at page 344, per CAMPBELL, C. J. Under the circumstances as shown by the plaintiffs, they were entitled to go to the jury on the proposition that the defendant, by keeping up this connecting link, and permitting it to be used generally by the public for a period of over 20 years, had thereby dedicated its use as such a link to the public; and also, that at any event, as long as it permitted the public to use this crossing without any dissent, the defendant was estopped from denying that, as far as such crossing was concerned, it bore the same relation and duty to travelers upon it as if it were in fact a public highway, and was bound to use due care and diligence in running its trains over this crossing to prevent injury to passengers lawfully on this road. Barry v. Railroad Co., 92 N. Y. 289.

It is not a sound proposition, either in morals or the law, that the defendant, permitting the public to use a road across its premises for so many years, planking the crossings of its furnace tracks for the accommodation of

such public use, and allowing such road to be connected at one end by a bridge, partly upon its property, with the public highway leading to Palmer, and at the other end with the public road to Negaunee, forming, by so doing, with these connections the only road for public travel between these two places, can yet be authorized to treat every one, except its own employés, as trespassers while using this crossing. But this is the logical outcome of the claim made by defendant's counsel in this case; and such counsel contend that if, at the moment Root was injured, he was not in the employ of the defendant, he was nothing more nor less than a trespasser.

If the view that I have taken of this crossing be correct, then the engineer was negligent if he started the cars without any warning. This engineer, who was sworn for the defendant, testified that the brakeman signaled him to back the cars, which the brakeman denies. He also testifies that he blew the whistle three times before he started to back down. The testimony of the plaintiffs tended to show that no whistle was blown. Whether it was blown or not was a question for the jury.

The circuit judge ruled that the engineer was a fellowservant of the deceased. If so, then the direction of the verdict in favor of the defendant was right.

It is claimed by plaintiffs' counsel that Mr. Root was not in the employ of the company at the time he was injured. Conceding that the deceased had started to go down town to attend to some private business of his own, which he was in the habit of doing every day, or nearly every day, still, when this accident occurred, he must be considered to have been in the employ of the defendant. There was no stated time in which he was authorized by his employment to leave the service of the defendant and go down town, and attend to his own business. It would