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The plaintiff was engaged in the business of constructing gravel and macadam roads, and, at the date above mentioned, was constructing such a road at a hamlet called Marysville, located a short distance south of said crossing. It hauled its material by means of its engine road roller with four dirt wagons attached, making an outfit about 100 feet in length over all. This conveyance traveled along the highway at from 1 to 2 miles an hour; that being its utmost speed. About 1 o'clock in the afternoon of the day in question, plaintiff's said engine road roller, with the four dirt wagons attached, approached said crossing from the east, in the sole charge of its engineer, one Saul Tice. He ran the engine up to within five or six feet of the east rail of the defendant's track, when he stopped. He got off the rear of the engine, and walked in the neighborhood of 25 or 30 feet to the track. went forward, and stood in front of the engine. He was close enough to the east rail so that he got a good view of the track. He looked up and down the track, and could see beyond Greenwood on the south. He saw no car coming in either direction, and heard no whistle. He then walked back, got up on the engine, blew the whistle, and started the train ahead. When the front roller of the engine was on the west rail of the track, he saw a car coming from the south beyond Greenwood waiting room, about the time it came around a slight curve. He testified that he immediately blew his whistle, threw the reverse lever, and jumped out of the south side of the engine, and that defendant's car hit the engine about the time he landed from his jump. He testified that, when he first saw the car, it was so close to him that he did not have time to back his engine a sufficient distance to clear the track. The width of the space inside the track or rails was 4 feet 8 inches, and the bearing on each rail was 2 inches. It was conceded that the defendant's car was running at the rate of 50 miles an hour at the time it came around the curve, and also that for at least a third of a mile south of this crossing the defendant ran over its

private right of way. The car violently struck the road roller, throwing it a distance of 49 feet to the northeast, as indicated on the diagram. It was conceded at the trial that the road roller was practically demolished, and was, after the injury, of no value except for scrap iron. It appeared that plaintiff's engineer had been employed at said work for some months, and was familiar with the location of defendant's track and the crossing, and with the fact that both local and limited cars were frequently run over the line. The evidence showed that the motorman gave a whistle at about the same time the plaintiff's engineer sounded his whistle, and there was testimony that the motorman applied the air brake on the car. It being conceded that the car when it came in view was running at the rate of 50 miles an hour, it would travel about 74 feet a second, and the road roller's rate of speed would be from 2 to 3 feet per second.

The trial judge ruled, and instructed the jury, that the plaintiff was guilty of contributory negligence in attempting to cross the track in the manner in which it did, and in the handling of the outfit, and submitted to the jury the question whether the defendant was guilty of gross negligence in the operation of the car. It appeared that plaintiff's engineer was alone, and unattended by any other person in the operation of the roller and outfit.

Considering the length of plaintiff's outfit and its slow movement, it seems clear to us that the trial court did not err in holding that it was guilty of contributory negligence in the manner in which it attempted to cross the track. Our legislature has sought to protect the public in the use of vehicles or trains such as the plaintiff was operating. Our statute (see Act No. 71, Pub. Acts 1903, 2 How. Stat. [2d Ed.] § 4235), which regulates the use of steam engines, steam wagons, and other vehicles which are in whole or in part operated by steam on the public highways of this State, makes it unlawful to permit or use the same to pass over, through, or upon any public highway, road, or street, unless such owner or owners, agent, servant, or

employé shall send before the same a person of mature age at least 10 rods, and not more than 40 rods, in advance, to notify and warn persons traveling upon or using said highway or street with horses or domestic animals of the approach of such carriage, vehicle, or engine. Considering the time consumed by plaintiff's engineer in returning from the track, and getting upon and starting his engine, and also considering the rapidity with which the defendant's car was running, it is not strange that a collision took place which might have been avoided had the plaintiff exercised ordinary care and prudence by the use of a flagman or other precaution, as above indicated, or had he remained upon the engine and reversed the motion of the train, for it is undisputed that, when he first saw the car, it was from 700 to 800 feet away, and would require at least ten seconds to reach the crossing, whereas in two or three seconds the engineer could have backed his train off the track. But it may be said that the engineer had not time to act deliberately in this latter regard. However, it seems very clear to us that had he exercised the prudence and care which the circumstances required, by calling to his assistance persons to guard the track while he was crossing with his slow-moving outfit, not only would the plaintiff's property have been saved, but the life of the motorman also, which seems to have been sacrificed by the want of proper care and management on the part of the plaintiff.

The jury returned a verdict for defendant, and judgment was entered accordingly, and the plaintiff has brought the case here upon writ of error, assigning numerous errors to the rulings of the court, the refusals to charge, and the charge of the court.

It is the contention of the defendant that the evidence did not warrant the submission of the case to the jury upon the question of gross negligence of the defendant. We do not agree with this claim, and think the court did not err in submitting the question to the jury.

There are 33 assignments of error in the record, but ap

pellant's counsel discuss the alleged errors under the following subheads:

(1) The refusal of the court to permit the plaintiff to show changes in the premises.

(2) Failure to reprove counsel for using improper language.

(3) Refusal to permit evidence of the narrow escape from prior collisions to be considered as tending to establish notice.

(4) Permitting defendant's assistant superintendent to testify that a curve is not a curve within the meaning of defendant's rules, and refusing to charge on this point as requested.

(5) Defendant's negligence.

(6) Alleged contributory negligence of plaintiff. (7) Refusal to direct a verdict for plaintiff.

(8) Improper statement as to the elements of plaintiff's

case.

(9) Gross negligence.

(10) Prejudicial repetition of the sentence: "Plaintiff cannot recover," and other like phrases.

1. Upon the first point it seems the plaintiff sought to show changes in the premises after the accident. Clearly this was immaterial, except perhaps in the event that the plaintiff had received an order from the court permitting the jury to view the scene of the accident. No direct request was made of the court for such view. If such request had been made and refused, error could not have been assigned thereon; the whole matter resting in the sound discretion of the court. Dupuis v. Traction Co., 146 Mich. 151-162 (109 N. W. 413). We do not think there was any reversible error in the ruling of the court upon this subject.

2. Failure to reprove counsel for using improper language. This question arose in the cross-examination of the witness Charles A. Bailey, sworn on behalf of the plaintiff. In his direct examination it appeared that he went to the crossing with a Mr. Moore about an hour after the accident, and took some views upon the track, placing Mr.

Moore at the crossing while the witness went south. On his cross-examination he testified as follows:

"I made an observation about 30 feet south of the station (Greenwood station). This point is not shown on the map. I stopped there because it was the farthest point south I could have a perfect unobscured view of Mr. Moore standing on the crossing.

"Q. From that point you could see Mr. Moore on the crossing, but from any other point farther south it would be impossible to see, or else very difficult, is that true?

"A. Well, you could see the road roller further south, but I couldn't see Mr. Moore any further south, and that is the reason I did not go any farther.

"Defendant's Counsel: Now, if your honor please, I ask to have this answer as stated struck out, and I take exception to it. This man is not an ordinary witness. He is the head and shoulders of the company, a man experienced in law, and he knows that that answer to that question is improper, and I desire to take exception to it. "Q. Now, I ask you to answer this question?

"Plaintiff's Counsel: I desire to take an exception. A. I did answer your question, that that is the farthest southern point I could see Mr. Moore.

"Plaintiff's Counsel: I desire to take exception to the statement of Mr. Walsh that this witness was the head beetler of this company, and that he was not an ordinary witness, and that he was experienced in law, as being improper; there being no evidence to support any such statement.

"Defendant's Counsel: Well, the jury will judge of that, I guess.

"Plaintiff's Counsel: And an exception to that remark."

It will be observed that the court was not called upon by motion, or otherwise, to either reprimand counsel, or take any other action, or make any ruling thereon. Under repeated decisions of this court, relating to remarks of counsel, such exceptions are of no validity. It is not necessary to cite our numerous decisions upon this point. Neither do we think the remark of counsel was of such a serious or prejudicial nature as is contended for by appellant.