*1 Casualty Leach Insurance Co. right This had to do. Insurance Bonewett v. Montgomery, speak- Chief Justice court, said: may “These may; importance not be of companies. They certainly insurance have the right to make them material. In all insur- lines of ance the regarded very moral risk involved is as great importance, and it cannot an in- be said that company surance right has not the contract its to make the which are to es- here adverted sential.” judgment reversed, with a new trial and with costs this court to defendant.

Snow, Steere, Wiest, Clark, JJ., concurred v. GRAND RUSHFORD-SURINE TRUNK RAILWAY CO. Negligence Contributory Negligence — 1. Railroads —Directed Verdict. occupants Where of a truck within feet of a crossing railroad had an view of unobstructed the. 1,000 for a distance of from 600 to feet in the direction coming, a train was which could not have failed to see the either across, failed to look or tried to the train and were beat contributory killed, negli- struck and gence as matter of law. 1003, 1004, ^Railroads, 1006, 1117, 22 R C. Supp. L. C. L. R. [June- Stronger Presumption Positive. Makes Case Than 2. Same — No Testimony. *2 they that, the facts establish Where they degree care, slightest not have' of could with the testimony oncoming train, did to see the failed jury, and, therefore, take the case to the would not look being look, presumption no wit- there the jury either, nesses, the since not take to the stronger positive make a case than not could testimony. Negligence. Negligence —Concurrent 3. Same —Gross negligence failing engineer of was to If approach- apply the truck when he discovered the brakes subsequent crossing, or discovered negligence, since the concurrent occupants of truck continued the collision. Engineer to Assume That Not Bound Travelers 4. Same — Negligent. Safety Will oe Place the truck when it into had seen came crossing when the 500 or from the feet away, to assume he was not hound that it would feet required way, and therefore was not on its continue attempt stop train. Negligence. Negligence Comparative 5. comparative does not obtain in The doctrine State. this J., dissenting. McDonald, Hawley A.), (Royal Ionia; J. Submitted Error 52.) (Docket No. Decided 7, June

January 6, 1927. Rushford-Surine, by Mary J. administratrix

Case Rushford, deceased, against of Walter the estate Railway Company alleged negli- Trunk Grand Judgment killing gent decedent. for de- brings on a directed verdict. Plaintiff fendant error. Affirmed. Cyc. “Railroads, 1096; "Id., Cyc. p. 1049; “Id., Cyc. p. 979; "Negligence, p. Rtjshfobd-Stjkine Mathews, ap-

George for E. Nichols D. and Glenn pellant. Corrigan, counsel), ap-

H. for (Leo R. Martin J. pellee. (dissenting). intestate Plaintiff’s

McDonald, Seabrook, draying .and partners one who were business, left Ionia with a Reo truck loaded stones, cemetery .monument for 'bound part village .northern The wind of Muir. shield, curtains windows formed cab on truck in which ar men two rode. When village rived at drove to Blanchard of Muir street, turned north that street.

then street 170 feet from the intersection of Blanchard point they with defendant’s At track. this *3 had a point clear of the view track. From that the north the build view was more or less obscured ings, trees, shrubbery foliage, and until reached point (cid:127)a 50 feet of the south rail of defendant’s south track. point When the 50-foot was reached west) had a clear the from 400 to 600 feet. good. truck, The view to the east was not so The traveling at the 50-foot was at the rate of 10 point, hour, to 12 upwards per miles an of 14 feet .second. At this rate the truck would travel the point 50-foot about 3 seconds. On (cid:127)each side of an the intersection there was incline highway obliged the which the truck was to ascend. drove north onto the track and were passenger struck the 1 o’clock east-bound traveling which was at the rate of 45 to an 50 miles hour, and was an hour behind time. Both men in warning the crossing truck were killed. No .given by engineer. slackening There was no engine speed collision, until after the .engineer claiming he the truck [June, hazy misty. weather was

collision occurred. The fixing village an ordinance force of Muir had village speed of at 12 maximum rate of trains plaintiff filed miles an hour. The a declaration these charged speed, excessive and a failure to give any crossing warning approach. of its Plain give any tiff also counted defendant’s failure to warning, or to slow the train when the dis plaintiff danger covered into the zone. The plea general of the defendant was the issue. When ready plaintiff’s for trial counsel made a statement jury foregoing of which the statement embodies facts, and, upon defendant, the material motion of trial court directed a verdict for it because of con tributory negligence intestate. Negligence.

Defendant’s If defendant’s train were traveling 45 or 50 village- miles hour within the Muir, limits was a of fact for the Hudson, doing negligent. whether in so it was v. Rail way Co., 1; Morgan Railway, Mich. gave warning approach If it no of its to the-

crossing negligent. Id. Under the statement involving counsel these two of defendant of fact for the Negligence. Plaintiff’s Under the count, first if plaintiff approached crossing and could see west, from 400 to 600 feet to the look,, and he did not recovery action, no can be had in this but the fact appear by whether he failed to look proofs, must *4 living as no witness saw the accident. In such cir- presumed cumstances cannot be negli- that he was gent, plaintiff and the starts out in the trial with the presumption that her negligent intestate was not un- less by that is overcome facts. Railway Co., Richardson v. Cinadar 193 Mich. 38. (a) Suppose proofs should con- Railway Rushfobd-Surine open plaintiff the 50-foot elude arrived at looked space approaching he where he a train could see easterly to in an direction first and when he thought the west the he unheralded train was so close dangerous and, therefore, up it would to tried be back go safety, a across would not his question jury? for the he,

(6) suppose Or when he the train discovered good faith, thought safety, he could cross in being by speed deceived he excessive clearing missed the train a time. second of Would question jury? not his be a (c) going per If the truck were 10 to miles hour it would travel little more than 14 feet a second. He would travel the 50 feet in which he could in 3 Suppose plaintiff got seconds. on or near the track by his to look, engineer failure him, and the did see ought him, have warning given, and no any attempt nor made to slacken the of after-discovered be one for jury? By applying engineer the brakes when the saw the truck danger into the zone of he could given have the truck at least a moment or more time to make the crossing, and in less than that time would have questions cleared suggested it. These are by counsel’s disposed pass statement. We are not upon the proofs here, case until the final are but we think there suggested by are of fact statement of counsel which could not be decided court as of law.

Much placed by reliance was the court case Knickerbocker 167 Mich. 596. There is an present very element in case, which is troublesome, appear that did not in that case. boy case two witnesses saw the as he went onto struck, track and was while in this case living no accident, witness saw the claim- *5 239 24 [June he did collision truck place. took try

It was commendable the trial court to ex- pedite of his court, business but we think the directing practice of a verdict the statement of counsel, especially in cases, this class is one that ought encouraged. not to be Sometimes a bit testi- mony, a brief cross-examination or an witness party admission of a determines as to go whether the case should Leonard v. Beaudry, 68 Mich. judgment-should be reversed and a new trial

ordered, plaintiff. costs Accepting opening statement of as counsel case and all of them, should, as we it is established that companion approaching decedent his were they and for 50 feet back from the track unobstructed the direction the train was coming 1,000 from for a distance of from stopped feet. Their could have been truck 5 or going at the rate of or 12 feet miles an hour. up they hill. were drove that distance looking stopping their car without or for a if saw the train when could and should have place perfect back in a it 50 feet the track across, safety beat tried to contributory as matter of law. Lanier Railway Co., Co., Britten v. 302; Mich. v. 91; Eisele 236; 224 Mich. Mich. Co., 588; Railroad Sheets Baader v. Rail Mich. way Co., Pamburn Railroad 228 Mich. Railroad, v. West my McDonald Brother reasons that because But to the accident a no witness there was care and due exercised but did arises *6 Rushford-Surine v. not see the train. not make Such a could stronger a testimony case than that looked. would testimony Had there been such it case, undisputed take not the case to the where physical facts establish that had looked with slightest degree not have failed to care could oncoming Railway, Champaign see the train. v. Bradley 672; Molby Railway, 419; 221 Mich. v. Davis, Downey Railway Co., 228 Mich. case, Mich. 243. last said Mr. cited it was speaking Justice for the court: Sharpe, testimony “His that not he look and did undisputed opposed locomotive is so question it a for a that cannot be said to raise position He a either did not look when first in track, ap- see down the or he else after saw the proaching train he he had time to concluded that event, guilty cross. In either he of such con- tributory negligence recovery.” as bars his My Brother question does not discuss the of sub- sequent negligence. or discovered Nor do think I inis case. the decedent and his companion negligence, and I think were, negligence such continued until the collision. It subsequent was not or discovered negligence. concurrent Cursan, Gibbard v. 225 Mich. Watts v. Railroad 231 Mich. 40. If the engineer had seen the truck when it came in feet back from the track and train was 500 this, or 600 feet crossing, from the is the most by any possibility can be claimed he was bound to do, he would not have been bound to assume that the occupants of the way truck would continue on their required stop and be the train. In Knickerbocker Mr. said Justice Ostrander, speaking for the court: “But it is not gross negligence clearly it not is stop gain fail to complete or fail to —to Keports. Michigan [June cars, merely persons are train of because control a highway foot, approaching usually approach not with vehicles. Suchi negligence, persons, not are and such evidence of

usually any peril.” opening it appears statement From engineer applied ran feet after ' emergency stopped. No brakes before the train case subsequent out, or discovered was made comparative negligence and the doctrine of does obtain this State. judgment is affirmed. *7 J.,

Sharpe, Wiest, Snow,' Steere, C. and and JJ., Clark, Bird, J., concurred with not sit. CITY OF DETROIT.

STIGLITZ Corporations Municipal Charter —Tax Sales —Re- —-Detroit City Tax abb Contract Re- Purchaser Between lations lations. city providing of Detroit for charter of the Under city lands, give delinquent contracted to tax sale compliance purchaser terms a deed in the purchase sale, the relations and to extent the tax at city purchaser the tax are contract re- between

lations. May 2. Same —Breach of Tax Deed of Contract —Execution Specifically Enforced. city duty of controller charter Under 2Id., Cyc. (Anno); p. Municipal Corporations, 28