
    ADAMS v. GRAND TRUNK WESTERN RAILROAD CO.
    1. Railroads — Contributory Negligence — Gross Negligence— Watchman.
    Failure of railroad company to keep watchman at crossing to warn public of approaching trains was not gross negligence excusing contributory negligence of 12-year old boy who was injured while attempting to cross between two freight cars.
    2. Same — Subsequent Negligence.
    In absence of claim that members of crew saw 12-year old boy attempting to cross tracks between two freight cars of standing train, railroad company was not guilty of gross or subsequent negligence in starting train without warning, resulting in injury to boy.
    3. Same — Negligence.
    Where 12-year old boy was guilty of contributory negligence in attempting to cross between two freight cars of standing train, and was injured when train started, railroad company was not liable, in absence of showing that it was guilty of gross or subsequent negligence.
    Ou violation of statute or ordinance in relation to blocking train at crossing as affecting liability of injury, see annotation in 47 L. R. A. (N. S.) 820.
    As to duty of railroad company to maintain flagman at crossing, see annotation in 16 A. L. R. 1273.
    Contributory neglige .ee in attempting to cross a train standing on crossing, see annotation in 13 L. R. A. (N. S.) 1066; 34 L. R. A. (N. S.) 466; 50 L. R. A. (N. S.) 1012.
    Error to Wayne; Toms (Robert M.), J.
    Submitted October 29, 1930.
    (Docket No. 172, Calendar No. 35,276.)
    Decided December 2, 1930.
    Case by Albert Adams, an infant, by Ms next friend, against Grand Trunk Western Railroad Company and another for personal injuries. From verdict and judgment for plaintiff, defendants bring error.
    Reversed.
    
      George D. O’Brien, for plaintiff.
    
      Frederic T. Harward (William W. Macpherson', of counsel), for defendants.
   Butzel, J.

Albert Adams, a bright young lad of the age of 12 years and 3 months at the time this cause of action arose, brought suit by next friend against defendant railroad companies. The names of the Grand Trunk Western Railroad Company and that of the Canadian National Railway appear interchangeably as defendants in the pleadings. Defendants make no objection. The train and trades in question belonged to the Grand Trunk system. The crossing is now protected by a viaduct which was in process of construction at the time of the accident. A long string of freight cars was moved each day by the Grand Trunk from one section of the city of Detroit to the other, and crossed 25th street about 6 p. m. Albert’s home was situated four or five short city blocks from where the ¡defendants’ railroad tracks crossed 25th street, and he was familiar with them. About 6 p. m. on the 25th day of June, 1925, Albert, with another lad, found the 25th street crossing obstructed by a long string of cars. They desired to cross. According to Albert’s testimony, the engine attached to the cars was so far distant from where he attempted to cross that he could not see it. It was three or four blocks from the crossing. The train consisted of 64 freight cars with an engine and caboose, was approximately 2,465 feet in length and extended over the crossings at 25th street and approximately six or more streets in the immediate vicinity. Both the front and rear ends of the train were a long distance from the 25th -street crossing. Albert stated that he waited upwards of five minutes before attempting to cross between the cars; that after seeing a number of men cross, either by climbing over the top of the cars or over the couplings between them, he attempted to cross between two box cars by climbing over the couplings. Just as be was about to alight'on the other side, the train started without a warning. The jerk from the sudden start caused him to fall and the train ran over his right leg. It had to be amputated above the knee.

At the time of the accident Albert had just completed the B fifth grade in the Detroit public schools and passed to the A fifth grade. He had taken an active interest in athletics and was a bright, normal boy. He admitted on cross-examination that at the time of the accident he fully appreciated the danger that he was taking in climbing between the cars.

The train was manned by a regular crew of five men, the conductor and rear brakeman being stationed in the cupola of the caboose, and the head brakeman, together with the engineer and fireman, was in the cab of the engine; this was where they belonged. There is no claim whatsoever that any of the crew saw Albert until after the accident occurred.

Negligence is claimed on the part of defendants in their failure to comply with an order of the Michigan public utilities commission directing that two watchmen be stationed at the 24th street and 25th street crossings to “warn the public of approaching engines and trains;” also in obstructing the highway by maintaining for an unreasonable length of time an idle train of cars, extending over a distance of several city blocks and starting the train without a warning or proper signal to persons using the highway. Under the ordinances of the city of Detroit, a public street or highway cannot be obstructed by a train for over five minutes, and fines and penalties are provided for in case of the violation of this law by the railroad company, engineer, or conductor. It is further claimed that the negligence consisted of starting the train without a proper signal or warning to persons using the highway, and that defendants knew or should have known the custom and practice of crossing cars at said intersection. In an additional count, plaintiff further complains of gross negligence on the part of defendants in doing or failing to do the things set forth in the previous count.

The court instructed the jury that plaintiff was guilty of contributory negligence, but that they might consider whether there was any gross, wilful, or subsequent negligence on the part of the defendants. The charge is quite lengthy. The gist of it in regard to gross negligence is that the jury might consider whether defendants did discover or should have, discovered plaintiff’s peril and thus have avoided the accident after plaintiff’s contributory negligence occurred. There is no testimony on the part of plaintiff or his witnesses that he was even seen by defendants’ employees at any time until, after the accident occurred. The testimony of defendants shows that he was not seen until after the accident.

Many of the claims of plaintiff are disputed, and there are questions of admissibility of evidence. Assuming, however, that all of the evidence was properly admitted, and that the train did obstruct the crossing for more than.the time permitted by law, that there was no watchman at the crossing, that the train started without any warning or signal, there, nevertheless, was no testimony of any gross negligence. Notwithstanding this, the jury rendered a verdict in favor of plaintiff.

The conductor was watching the signal tower or semaphore built up in the air a long distance from the caboose and was waiting for the signal to proceed. The claim is made that his failure to see plaintiff and the others passing between the cars, and the starting np of the train without warning, constituted gross negligence. The 25th street crossing was not as far from the engine as the signal board. Plaintiff went between the cars, where he could not be seen. The order of the Michigan public utilities commission states that its purpose is to warn the public of approaching engines and trains. Albert needed no warning of the approach of the train, for he not only saw it but climbed on it. The failure. to keep a watchman can not be deemed to be gross negligence. A semaphore or signal light may be seen from a very long distance both at day and nighttime. The fact that a conductor stationed in the caboose of a train could see this light up in the air, as the testimony shows, from a very long distance, would not make defendants or their employee guilty of wilful, wanton, reckless, or gross negligence in not watching people three or more blocks away, waiting at street crossings and detecting them crossing between cars. Naturally, any one crossing while between the cars would be hidden from the conductor’s line of vision.

While one is deeply moved by the unfortunate accident to this young lad, he was guilty of contributory negligence, and there must be gross or subsequent negligence on the part of defendants in order to hold them responsible. The record fails to dis-. close any. Our attention is called to the case of Battishill v. Humphreys, 64 Mich. 514, where a child less than three years of age was some distance directly in front of the engine on a railroad track, and it was held that it was reckless negligence on the part of the lookout in not seeing the child. The case of Gibbard v. Cursan, 225 Mich. 311, is also referred to. In this case plaintiff was seen in peril in ample time by defendant to avoid' the accident. In the case of Shindler v. Railway Co., 87 Mich. 400, also referred to by counsel for plaintiff, cars were shunted without warning across a highway where it was known that people were constantly passing. The facts in these cases are different from those in the present one. The cases of Lahnala v. Railway Co., 192 Mich. 460, and Nagy v. Railroad Co., 241 Mich. 134, are directly in point. In both of these cases boys met with accidents while attempting to cross over cars of a train that blocked a street crossing. We held that they could not recover. It is true that in these cases the claim of wanton, wilful, gross, or subsequent negligence was not made. In the present ease, there is absolutely no testimony to support such a claim.

The judgment for plaintiff is reversed, with costs, and without a new trial.

Wiest, G. J., and Clark, McDonald, Potter, Sharpe, North, and Fead, JJ., concurred.  