3. Appellant next urges that the refusal of the court to permit the witness Tice to give testimony relative to some prior occurrences as tending to show notice to the defendant was error. There is some question whether the record discloses any ground for this exception. Objection was made by defendant's counsel to the question relating to such claimed prior occurrences on the ground that it was immaterial, and, even if it occurred, it would not be notice to the company to the extent claimed by the plaintiff. The ruling of the court was that the witness could not be examined as to the stopping of the car under the circumstances claimed for the purpose of fixing notice on the company. Counsel took no exception to this ruling. Counsel for plaintiff then proposed to show by the witness that on three different occasions a car did stop, and the court again held that this could not be shown for the purpose of fixing notice upon the company. No exception was taken to this ruling. Counsel for plaintiff then asked the court if he would be permitted to show that the company could stop and control their cars between the crossing and the curve. After a colloquy between the court and counsel the court stated:

"You may show that there was an obstruction on the track, and they did stop. If it is necessary in that particular, you may ask the witness if there was an obstruction on the track, and he will answer the question by yes or no, and ask him if they did stop the car before reaching the obstruction."

This latter statement by the court was excepted to by appellant, after which the witness proceeded to testify upon the subject. Was this evidence admissible as tending to show notice to the defendant? It is the position of appellant that the nature of these claimed occurrences was such as would likely lead to discussion and report to the company. We do not think that the cases cited by appellant sustain the position claimed. Where there are defects that have been of long standing, they have been allowed to be shown.

In Smith v. Sherwood Township, 62 Mich. 159 (28 N. W. 806), the action being one to recover damages because of a horse becoming frightened at a hole in the planks of a bridge, it was held that the plaintiff might show that it had existed for a considerable length of time; and this court held that evidence introduced showing instances of other horses shying at the hole tended to show that knowledge of such conditions was brought to the attention of the township authorities. A like question arose in Moore v. City of Kalamazoo, 109 Mich. 176 (66 N. W. 1089), which was an action against the city for injuries received by stepping into a hole in a defective sidewalk. Evidence that there were other defects in the immediate vicinity, and that other persons had stepped into the same hole in the walk, was held admissible as bearing upon the question of notice. We think the instant case can readily be distinguished from the cases cited. There was here no hole or obstruction which would be a continuing notice of the dangerous condition. The mere occurrence of the car having been stopped on prior occasions would not probably be of sufficient importance to be reported to the company, or cause any comment, or operate as a notice. Because this same plaintiff on a prior occasion was crossing the track of the defendant at this particular place with an equipment that was so imperfect as to cause its stoppage on the railroad crossing, it can hardly be said that because of that fact the defendant should be charged with notice, and therefore required to operate its cars along the stretch of track approaching this crossing at a decreased rate of speed for the reason that such condition was likely to recur. But, as we have already said, the testimony offered was received, but not used for the purposes of notice. Neither are we able to find that the court was requested to charge the jury upon that subject by the appellant.

4. It is claimed that there was error in permitting the defendant to explain the meaning of its rules by parol

evidence.

The rule referred to was defendant's rule 295, reading as follows:

"Enter slowly all curves, special work, temporary tracks, subways and viaducts; run slowly over them and leave them slowly."

and within the meaning We think that the witness as to the application of We think it was compe

It is claimed by appellee that this rule did not apply to the running of interurban trains in the country, but related to the operation of its cars in the city of Detroit; the rule having been labeled "The Rules of the Detroit United Lines." The assistant superintendent testified that the defendant had curve signs at all curves that were designated curves, and that the slight curve shown upon the diagram here was not called a curve within the meaning of railroad terms, of the rules of the defendant. was here testifying to a fact its rules to a certain condition. tent for him to state that it was not intended to limit the speed of cars while passing over this particular portion of the track, or any other portion where the deviation from a straight line was so slight. The witness did not attempt, as is claimed by appellant, to give the meaning of the word "curve," but was only stating its application to a portion of the road. The reason for the rule must be apparent. Its only purpose must have been, and is, to avoid the danger of high speed on such portions of the tracks as curve sufficiently to make fast running over them hazard

ous.

5. We have examined with care the remaining subheads and assignments or error relating to the requests of appellant to charge and the charge of the court. We find no reversible error in this branch of the case. While there is some confusion in the charge, yet it distinctly appears that the court submitted the case to the jury upon the subject of gross negligence. We think that the language of the court with reference to the definition and subject of gross negligence cannot justly be complained of by

the appellant. The court, among other things, charged the jury as follows:

*

"If, therefore, you find from the evidence that the defendant, if guilty of anything, was only guilty of ordinary negligence, and was not guilty of wilful or wanton and reckless conduct, your verdict should be for the defendant, as the rule is that, if the plaintiff is guilty of negligence contributing to the destruction of its property, it cannot recover unless the defendant was guilty of gross negligence, and, under the law of this State, it is contributory negligence for a person to propel and cross a railroad track with a traction steam road roller with a train of four wagons, in all 100 feet in length, and requiring some minutes to cross, without sending a man up and down the track to flag approaching cars. **Now, gentlemen, this is a question for you to determine from all the facts and circumstances in evidence in the case. You may consider the evidence in reference to the distance at which the road roller could be seen by the defendant company; the degree of the curve in the track; the blowing of the whistle; the distance in which a car can be stopped running at 50 miles an hour; the distance the car was from the steam roller when the defendant company anticipated, or should have anticipated, danger, and its ability or inability to avoid the collision after it anticipated, or should have anticipated, danger. So the plaintiff cannot recover in this case unless you find by the fair preponderance of the evidence, as above described to you, that injury occurred by reason of the gross negligence of the defendant. But it is not meant that the motorman must have actually intended to do the particular wrong complained of. By gross negligence is meant intentional failure to perform a manifest duty in reckless disregard of the consequences as affecting the life or property of another, and also implies a thoughtless disregard of the consequences without the exercise of any effort to avoid them. Unless, therefore, you find from the evidence that the motorman after he saw plaintiff's steam roller upon the track, and when he had no reason to believe it would vacate the track, before the car would reach the highway crossing did nothing to prevent the collision, but ran on in reckless disregard of the consequences, you cannot find a verdict for the plaintiff, and must find for the defendant."

We are of opinion that the question of gross negligence

was here fairly submitted. Labarge v. Railroad Co., 134 Mich. 139 (95 N. W. 1073); Knickerbocker v. Railway Co., 167 Mich. 596 (133 N. W. 504).

We find no reversible error in the record, and the judgment of the circuit court is affirmed.

MOORE, C. J., and STEERE, MCALVAY, BROOKE, OSTRANDER, and BIRD, JJ., concurred. KUHN, J., did not sit.

GRADYSZEWSKI v. DETROIT UNITED RAILWAY.

1. STREET RAILWAYS-Operation of Cars-NEGLIGENCE. Evidence that plaintiff, a boy of seven years and upwards, crossed defendant's car tracks in front of a car approaching about 100 feet away, that his cap fell off in the middle of the tracks, and as he stopped to pick it up, the car struck and injured him, that as he stooped to recover his cap it was 12 or 14 feet away, was insufficient to show negligence in the operation of the car or excessive speed.

2. SAME-PERSONAL INJURIES.

A motorman is not bound to anticipate that a pedestrian crossing the track will place himself in a position of danger, but may assume that if he is able to cross safely he will do so, if not, that he will remain in safety: it is impracticable to require that the car should be checked whenever persons approach the track; only when the motorman becomes aware of peril is he required to adopt precautions to avert injury.'

Error to Wayne; Murfin, J. Submitted October 18, 1912. (Docket No. 69.) Decided November 8, 1912.

'As to right of motorman to assume that person on track will get out of way, see note in 21 L. R. A. (N. S.) 880.

Right of motorman to assume that no one will attempt to cross track so close in front of car as to render a collision probable, see note in 5 L. R. A. (N. S.) 1059.