collision. The particular faults attributable to the company are enumerated, and they may be considered in detail.

First. It is said the plaintiff offered to prove and could have proved that the company had neglected to comply with the provision in the act of 1875 (Public Acts p. 138) which requires that a sign-board with the words "Railroad Crossing" shall be posted at the crossing of public roads. This posting is required for the protection of the public, and though a penalty is imposed for neglect, individuals may no doubt have a remedy also in case of injury attributable to it. But there is no claim, pretence or suggestion in this case that the collision had any connection whatever with the failure to post the sign-board, or was in any manner influenced or affected by it. The sign-board is required as a warning of the existence of the crossing; as a notification to those who might not observe or be otherwise made aware of the fact. But in this case the plaintiff gave evidence that his decedent was entirely familiar with the crossing; that he not only knew about it but had frequent occasion to pass over it. More than this, it was a part of the plaintiff's case that the decedent had the crossing in mind when he approached it on the occasion in question, and checked his team to listen for signals of approaching trains. After this showing by the plaintiff himself it was of no importance in the case that the railroad company had failed to erect the caution board. The duty to erect it was a duty to the public; and no private action could be grounded upon the neglect unless individual injury was traced to it. Pakalinsky v. N. Y. Central etc. R. R. Co. 82 N. Y. 424.

Second. It is said there was evidence from which the jury might have found that the bell was not rung continnously for forty rods before the engine reached the crossing, as is also required by the same statute. We doubt if there was such evidence. There was negative evidence that some parties who were in the vicinity did not hear or did not notice the ringing of the bell; but some of these were on the cars, and some were where the banks of the excavation tended to interrupt or to deaden the sound; and if the

bell was rung, there was nothing remarkable and nothing surprising in the fact that persons in the vicinity, with their thoughts presumptively on their own affairs, failed to notice it. The affirmative evidence that the bell was rung is very full and positive. It is conceded by the plaintiff that the whistle was sounded three times distinctly, and this is always the more effective warning, and far the more likely to attract attention. Every one who was in the vicinity, and who was summoned as a witness, noticed this warning; even those who were upon the train, and whose location was least favorable for the purpose. The jury could scarcely have found that the decedent alone failed to hear it, if he listened, as it is assumed he did.

Third. It is said this crossing was so peculiarly dangerous, because of the excavations through which are run both the highway and the railroad, that the railroad company did not discharge its full duty to the public unless it stationed a flagman there to give warning of approaching trains, and that the failure to have such a flagman was negligence directly contributing to the casualty. It would no doubt have tended to the security of travelers had a flagman been kept at this point as is suggested, but there is no statute requiring it, and the judiciary cannot establish police regulations on their own judgment, where the Legislature has apparently considered none essential. This was the crossing of a common highway, in the open country, with nothing to render it unusually hazardous except the fact of excavations; but over the banks a train would be seen at intervals by one who was approaching the crossing, and with ordinary care it would seem that he must avoid any collision. The crossing of the two roads was on a level, and unless one was approaching with an unmanageable team, there should have been no difficulty in stopping if danger was perceived. There must be many more dangerous crossings of country roads than this. Before we could say that the neglect to station a flagman at it was culpable fault, it should be made to appear that the danger was altogether exceptional; that there was something in the case which rendered ordinary

care on the part of the traveler an insufficient protection against injury, and therefore made the assumption of this burden on the part of the railroad company, of the employment of a flagman, a matter of common duty for the safety of others. This does not appear to be such a case.

But the fatal defect in the case of the plaintiff is the negligence of the decedent himself. There is not in the evidence the slightest indication that he observed any precaution whatever, unless his checking his team when three rods or so from the crossing is to be referred to prudence. With respect to this we are left to conjecture; we only know that there was evidence tending to show that the decedent checked his team for an instant, and that he then went forward upon a brisk trot until the heads of his horses came in collision with the engine. To excuse this we are told that the crossing was peculiarly exposed to danger because of the banks on either side of the approach; and that it was the duty of the railroad company because of this to observe extraordinary precautions. We may concede this, but it does not aid the plaintiff. The peculiar risks of the crossing imposed upon the decedent the duty of special caution also; and as he knew that a regular train was due at the crossing at about that time, he was under the highest possible obligation to observe such precautions as would be needful to avoid a collision. Pennsylvania R. R. Co. v. Beale 73 Penn. St. 504. We may concede that the railroad company failed to sound the bell; but this did not relieve the decedent from the duty of taking ordinary precautions for his own safety. Railroad Co. v. Houston 95 U. S. 697, 702. And what ordinary prudence would demand must be determined on a view of all the circumstances. It is vain to urge or to pretend that ordinary precautions were made use of in this case. To move forward briskly as the decedent did, from a point whence an approaching train would not be seen, at a time when it was known by him that a train was due, and not to pause until the train was encountered, was so far from being ordinary prudence that it approached more nearly to absolute reck

lessness. This subject was fully considered in Lake Shore etc. R. R. Co. v. Miller 25 Mich. 274, on facts much resembling these, and the conclusion was reached that the contributory negligence precluded any recovery. That case must rule this. The cases of Chicago etc. R. R. Co. v. Lee 87 Ill. 454; Hearne v. Railroad Co. 50 Cal. 482; Toledo etc. R. R. Co. v. Shuckman 50 Ind. 42; Chicago etc. R. R. Co. v. Dimick 2 Am. & Eng. R. R. Cas. 201; Henze v. St. Louis etc. R. R. Co. ibid. 212, and many others, too numerous to be collated here, are to the same effect.

There is no error in the record, and the judgment must be affirmed with costs.

The other Justices concurred.

THE FIRST NATIONAL BANK OF NEGAUNEE V. JAMES FREE-
MAN, WILLIAM L. WETMORE AND THE
MUNISING IRON CO.

Partnership-Liability on indorsement-Notice of protest.

Suit on a promissory note was brought against certain persons named Spear, Wetmore and Freeman as co-partners doing business under the firm name of Propeller Ira Chaffee." The note was made payable to 'Prop. Ira Chaffee," and was indorsed "Prop. Ira Chaffee, F. B. Spear, ma'g'r, F. B. Spear, W. L. Wetmore." Freeman alone defended, and he pleaded the general issue with an affidavit denying execution. There was evidence tending to show that he and the other defendants owned the propeller, and that the profits from it were shared in the ratio of their interests. Held, that in submitting the case the powers and duties of managing owner and the rights and liabilities of the owners were immaterial, but that the case should be left with the jury with proper instructions dependent on finding a co-partnership in fact as the foundation of any right to

recover.

Where persons are engaged as co-partners in the business of running a vessel, paper indorsed by any of them in the firm name, if received in the regular course of their business and made payable to the order of the firm, will bind the other partners

The sufficiency of a notice of protest will not be considered if the fact of having received notice has not been denied on oath by any defendant. Comp. L. § 603.

Error to Marquette. Submitted October 26. Decided January 11.

ASSUMPSIT. Plaintiff brings error.

Reversed.

Dan. H. Ball and Wm. H. Wells for plaintiff in error. Part owners of vessels may also be partners: Campbell v. Mullett 2 Swanst. 551; Steamboat Swallow Olcott Adm. 334; Cox v. Delano 3 Dev. (N. C. L.) 89; Ward v. Thompson 22 How. 330; Hefferman v. Brenham 1 La. Ann. 146; Bulfinch v. Winchenbach 3 Allen 161; Whitman v. Porter 107 Mass. 522; Cooley v. Broad 29 La. Ann. 345; Ward v. Bodeman 1 Mo. App. 272; Bowas v. Pioneer Tow Line 2 Sawy. 21; Mumford v. Nicoll 20 Johns. 611: 4 Johns. Ch. 522; 1 Lindley on Partnership 67; a part owner of a boat is liable for the whole indebtedness incurred in the regular course of its business: Robinson v. Stuart, 68 Me. 61; 1 Pars. Mar. Law 89; persons associated in the use of joint property and sharing the profits and losses are partners: Sager v. Tupper 38 Mich. 258; Sheehan v. Dalrymple 19 Mich. 239; McCrary v. Slaughter 58 Ala. 230; Moore v. Huntington 14 N. Y. Sup. Ct. 425.

E. J. Mapes for defendants in error. The law of partnership does not apply to part owners of vessels: 2 Pars. Cont. § 266; Harding v. Foxcroft 6 Greenl. 76; Flanders on Shipping § 364; part owners in ships are not partners, but only tenants in common: Abbott on Shipping 124.

MARSTON, J. This was an action of assumpsit brought to recover upon a promissory note for $1000 given by the Munising Iron Company, and made payable to the order of Prop. Ira Chaffee, and endorsed Prop. Ira Chaffee, F. B. Spear, manager, F. B. Spear and W. L. Wetmore. Spear, Wetmore and James Freeman were declared against "as copartners doing business under the firm name of Propeller Ira Chaffee."