Spavin v. Lake Shore, etc., Ry. Co and the kind of break?" The plaintiff objected to the witness answering the question, on the ground that he had been her physician, etc. The court sustained the objection. This was not reversible error. The defendant "should have gone further and stated what he proposed to prove, so that the court could determine whether it was material." Jackson v. Hardin, 83 Mo. 175; Bank v. Aull's Adm'r, 80 Mo. 199. And this is the law notwithstanding the reason given against allowing the question answered is not sound; for it is the result of the action of the court that we are to pass upon, and, if that is proper, the aim of the law is accomplished. We have examined the instructions given upon both sides, and find them to be in harmony with the law of the case. The two refused instructions offered by the defendant were properly refused, -the first because it referred to facts in existence prior to the accident and in no way connected with the issue before the jury. The second was a commentary on the evidence. Finding no error in the trial, the cause is affirmed. All concur. SPAVIN V. LAKE SHORE & M. S. Ry. Co. et al. (Supreme Court of Michigan, May 19, 1902.) [90 N. W. Rep. 325.] Railroads Personal Injury-Walking on Track*-Contributory Negligence*-Evidence-Directing Verdict. Plaintiff, who for two years had been in charge of the semaphores and joint switch at a railroad junction, was accustomed to take a train which passed after he was relieved. The train stopped at the junction, with the rear car opposite the building used as a waiting room for passengers. As the train approached, plaintiff always walked along the track to take the second-class car, which was next to the engine. On the day of the accident, seeing a semaphore go down when his train was due, he looked down the track, and saw a headlight, which he thought was his train, and walked along a track parallel with the one on which the train would run, from which the snow had been cleared. A switch engine running on this track, without blowing its whistle or ringing the bell, ran him down. He knew that engines were liable to run over the track at any time, and did not look back after stepping on the track: held, that plaintiff was guilty of contributory negligence, and, no gross negligence on the part of defendants being shown, the court did not err in directing a verdict for defendants. Error to circuit court, Wayne county; George S. Hosmer, Judge. Action by John Spavin against the Lake Shore & Michigan Southern Railway Company and another. From a judgment for defendants, plaintiff appeals. Affirmed. At the time of the accident upon which this suit is based, and for years prior thereto, the defendant companies operated *See note, appended to Cottrell v. Sou. Ry. Co. (Miss.), 2 R. R. R. 641, 25 Am. & Eng. R. Cas., N. S,, 641. Spavin v. Lake Shore, etc., Ry. Co jointly a double-track railroad extending from the Brush street depot, in the city of Detroit, to Dequindre street, north on Dequindre street to a point about 200 feet north of Ferry avenue, where the trains of the Lake Shore diverge from the double tracks in a westerly direction onto the Lake Shore main line, the double track of the D. & M. continuing northward. The easterly main track was used by all trains going north, and the westerly main track by all trains going south. About 500 feet south of Ferry avenue there was a semaphore which controlled out-going trains, and about 200 feet north of Ferry avenue there was a semaphore which controlled incoming trains. Between Ferry avenue and the semaphore on the south side there is a joint switch, used to switch trains over from the outbound track to the inbound track, and thence onto the Lake Shore main track. Just south of Ferry avenue a cross-over track connects these two tracks. About 250 feet south of Ferry avenue, on the easterly main track, is a switch which opens into the cross-over track. At the northerly end of the cross-over, where it connects with the inbound main track, there is another switch. An outbound Lake Shore train would come up the easterly D., G. H. & M. main track to the switch first above named, would pass over it into the cross-over, out of the crossover by the second switch upon the inbound track, along it a short distance, and then over the joint switch upon the Lake Shore track. After running a train length, plus the distance from that switch to Ferry avenue and the width of Ferry avenue, it would stop, with its rear car opposite the car checker's shanty. To get it from the outbound D., G. H. & M. main track to its stopping place, the three switches had all to be opened and set for its passage. They were all fitted with switch lamps, which showed, to one looking down from Ferry avenue, white when the switches were set for the main lines, and red when they were set for the Lake Shore outbound train to make the station. About 250 feet south of Ferry avenue, and just south of the joint switch, and westerly of the inbound track, there was a telegraph station, which was used by the telegraph operator and the person in charge of the joint switch and the semaphores, which were operated from this station by levers. West of the inbound track there was a long siding, commencing just south of the telegraph office, and extending south to Gratiot avenue and beyond. This siding was parallel with the main tracks, was connected with the inbound track at different points, and a number of spurs ran over in a westerly direction into different coal yards and other manufacturing establishments along the line, and were used for the purpose of switching cars upon the premises of the several establishments. On the northwest corner of Ferry avenue and the railroad track, and about 25 feet westerly from the inbound track, there was a small house used as a car checker's office and a waiting room for passengers. This Spavin v. Lake Shore, etc., Ry. Co point was known as the Lake Shore junction, and was used as a passenger station for many years, for the purpose of taking on and letting off passengers. All Lake Shore trains stopped at this point, and many of the trains of the D. & M. The outgoing trains would stop at this point, so that the rear car would just pass the north side of Ferry avenue. It was the custom of passengers to enter and leave the outgoing Lake Shore train on the easterly side, from which all signals were given by the conductor to the party in charge of the engine. The plaintiff in this case had been in the employ of the defendant Detroit, Grand Haven & Milwaukee Railroad for a number of years, in different capacities, and for two years prior to the accident had been in charge of the two semaphores and the joint switch at Ferry avenue, working from 6 o'clock a. m. until 6 o'clock p. m., standard time. He was well acquainted with the rules of the company, and knew the custom and manner in which trains were operated by both companies at this point. He lived in the western part of the city, and after quitting work it was his custom to take the 6:30 Lake Shore train to the west side of the city. He testified that he done this every evening for a period of two years, and during all that time it had been his custom, upon the approach of the Lake Shore train, to walk up the inbound track almost to a point opposite the north semaphore, and there take the first passenger car behind the engine, being the second-class coach. This train stopped at this station only long enough to take on and let off passengers, the stop being momentary, and in order to be sure of getting onto the train it was necessary to be at the proper point on the train's arrival. On the 26th day of December, 1896, plaintiff quit work at 6 o'clock, went over to the car checker's office, and waited there until he saw the south semaphore go down. He looked at his watch. It was then 6:30 o'clock, and the Lake Shore train which he wished to take was then due. He went out of the car checker's office, walked about 20 feet towards the inbound track, looked southward down the tracks, and saw a headlight on the outgoing main line, but said he did not see any engine or train south on the incoming main line. He then walked over onto the westerly or inbound track, and started towards the north semaphore, the point where he usually entered the Lake Shore train. While he was walking along this track, and had proceeded a distance of about 100 feet up the track, a switch engine came up northerly on the inbound track, and without blowing any whistle or ringing any bell ran over the plaintiff, severing both legs. There were about three or four inches of snow on the ground, the atmosphere was practically clear, there was an electric light at the intersection of Ferry avenue and the railroad crossing, and the headlight of the engine which struck him was lighted. The engine which ran over the plaintiff was engine No. 106, owned and operated by the Detroit, Grand Haven & Milwau Spavin v. Lake Shore, etc., Ry. Co kee Railroad Company. This engine had been at work on the siding to the west of the inbound track, and south of the telegraph station, for 10 or 12 hours during that day. At some point south of the telegraph office this engine ran in upon the inbound track and started northward towards the D. & M. junction, which is beyond the Lake Shore junction. This engine came out the inbound track at a speed, according to one of the witnesses, of about 12 miles an hour, and according to others at a speed of about 6 miles. The headlight which the plaintiff saw in looking down the track was the headlight, not of the Lake Shore train, but of a wild engine, which was coming out the outbound track, and it was for this engine that the semaphore was dropped, giving this engine the right to proceed on the outbound track. Plaintiff testified that he walked out the inbound track, relying upon the rules of the company and his knowledge of their custom in the operation of trains at that point. Rule 84a reads as follows: "When double track is used, all trains will take the right-hand track, except as provided in special rules or orders, or when necessary to cross over to do work at stations when protected as provided in rule 100." Rule 18a reads as follows: "Train or switch engines must use the right-hand track between the Lake Shore junction and double-track switch at Jefferson avenue bridge, according to the direction in which they are running, and must keep careful lookout for switch engines and approach cross-over switches under perfect control." Rule 14 reads as follows: "The track between Lake Shore junction and Milwaukee junction will be considered yard limits for irregular trains and yard engines, and between Lake Shore junction and Leland street yard limits for yard engines only; but they must keep entirely clear of all time-card trains, and run very cautiously between those points, expecting to find main line occupied." This rule controlled all switching crews. Rule 2 provides: "Enginemen approaching Lake Shore junction from Detroit will come to a full stop not less than 100 yards short of the double-track switch, and approaching Lake Shore junction going towards Detroit will come to a full stop not less than 100 yards short of the joint switch, and remain until semaphore has been lowered and switch properly set and signaled by switch tender to proceed, and will not pass the switches at a rate of speed exceeding four miles per hour. It will not be necessary to lower the semaphores on both sides of the switches,only the one nearest to the train given the right to cross it. The other semaphore must be kept up to stop trains coming in opposite direction. Rule 114b reads as follows: "When within the limits of the various yards, all trains must be run with great care, and under the control of the engineman, so that he may at all times be able to stop within the range of his division. The court directed a verdict for the defendants, holding, first, that the plaintiff was guilty of con * * Spavin v. Lake Shore, etc., Ry. Co tributory negligence in being upon the track, and, secondly, that there was no gross negligence shown on the part of the defendant companies. Flowers & Moloney, for appellant. Wells, Angell, Boynton & McMillan, for appellee Lake Shore & M. S. Ry. Co. Geer & Williams (E. W. Meddaugh, of counsel), for appellee Detroit, G. H. & M. Ry. Co. GRANT, J. (after stating the facts). There is no evidence to show any liability on the part of the defendant the Lake Shore & Michigan Southern Railway Company. It had provided a station room and platform for those who had occasion to depart from and to enter its trains at Ferry avenue. In doing this it had done its full duty. Sturgis v. Railway Co., 72 Mich. 619, 40 N. W. 914; Railroad Co. v. Coleman, 28 Mich. 452. The rear car stopped just opposite this platform. It extended no invitation to plaintiff or any one else to walk along the other track, or to use it as a platform for plaintiff or other passengers who desired to take its train. If it were necessary to walk to the front of the train instead of taking the rear car (there is no evidence to show such necessity), there was ample space between the two tracks, level and smooth, which the plaintiff might have taken. At the point where he was struck, the distance between the two tracks was 20 feet. Neither is there any evidence to show such a well-known custom on the part of passengers to walk down the other track so as to enter the smoking car,-the forward car of the train,—a distance of about 200 feet, as would bind the defendants. Switch engines were liable to come in and go out over these tracks at any time. They were not limited to one track coming in and to the other going out. All they were required to do by rule 14 was to keep entirely clear of all time-card trains, and run cautiously between the points mentioned in the rule, as they might expect to find the main line occupied. Plaintiff is chargeable with notice that in this busy place these engines were liable to occupy the tracks at any time. He entered upon this track supposing, as a matter of course, that the headlight he saw was the headlight of the engine of the train which would take the Lake Shore track. Evidently, had he looked when upon the track on which he was injured, or within 10 feet of it, he would have observed that the engine was upon the track. Furthermore, the switch lights were not turned for the train to go upon the Lake Shore. Upon this point he testified: "I did not observe whether the switches, which were within a few feet of me, were set so the train could go on the Lake Shore. I was off duty. I did not bother my head about it. That was left for the night man to look after. Two engines were, in fact, coming on defendant's tracks." He did not look at any time after he had reached a distance of 20 feet from the inbound |