
    GRANADER v. DETROIT UNITED RAILWAY.
    1. Street Railways — Personal Injuries — Crossing Accident— Negligence — Question eor Jury.
    In an action against a street railway company for personal injuries caused by a collision between a street car and a motor truck, testimony that, although when the car was more than 100 feet away it became evident that the truck was attempting to cross the track in front of the car, but the motorman made no effort to slacken the speed of the car until within a few feet of the truck, held, to present a question for the jury as to whether the motorman used such care as he should, under all the circumstances.
    
    2. Same — Pleading — Ordinances — Evidence — Trial — Instructions.
    In such action, a city ordinance regulating the speed of street cars that was neither pleaded nor received in evidence was unavailable, and an instruction as to the speed of street cars as fixed in the ordinance was reversible error.
    Error to Wayne; Hosmer, J.
    Submitted January 15, 1919.
    (Docket No. 41.)
    Decided April 3, 1919.
    Rehearing denied June 13,1919.
    Case by Jacob Granader, an infant, by his next friend, against the Detroit United Railway and another for personal injuries. Judgment for plaintiff. Defendant railway brings error.
    Reversed.
    
      Corliss, Leete & Moody and Benjamin Si Pagel, for appellant.
    
      Bauble & Baubie, for appellee.
    
      
      On 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.
    
   Bird, C. J.

Plaintiff, a boy 17 years of age, was riding on the platform of a motor truck owned by Morgan & Wright, and operated by one of its drivers, in the city of Detroit. The motor truck was going south on Brush street. When it reached the north curb line of Warren avenue the driver observed a street car about 250 feet away approaching from the west. He kept on his course and concluded he could cross in advance of the car. When he was entering on the track the car was about 125 feet distant. The motor truck was 40 feet long and before he could clear the track the street car struck the rear end of it and threw plaintiff therefrom to the ground and seriously inj ured his shoulder. The negligence charged in the declaration was excessive speed of the car; the failure to give warning of its approach and the negligent operation of the car. A trial resulted in a judgment for plaintiff of $3,500.

1. Defendant complains of the refusal of the trial court to direct a verdict in its behalf, its contention being that no negligence upon its part was shown. We do not agree with this contention. By the time the truck driver reached the north line of Warren avenue, both he and the motorman were in plain view of each'other. Each knew the other .was going to cross his pathway. It therefore became the duty of each to úse reasonable care to avoid a collision. The testimony left it an open question as to whether the motorman discharged his duty. The testimony shows that the motorman made no effort to slacken the speed of his car until he got within a few feet of the truck, notwithstanding the fact that he was considerably over 100 feet distant when it became obvious that the truck driver was attempting to cross in advance of him. The truck driver was an experienced operator and he appears to have thought from the way traffic ordinarily moves he could clear the track before the street car arrived. The motorman evidently thought so too, and he delayed taking any precaution until it was too late to be effective. The question as to whether the motorman used such care as he should have used, under all the circumstances, was clearly a question for the jury. Bush v. Railway Co., 113 Mich. 513; Rahaley v. Railway, 177 Mich. 96; Purulewski v. Railway, 181 Mich. 133; Millette v. Railway, 186 Mich. 634; Prince v. Railway, 192 Mich. 194; Hickey v. Railway, 202 Mich. 496.

2. Complaint is made of the following instruction:

“The ordinance of the city of Detroit provides that within the three-mile circle, and this would be within the three-mile circle, the cars may not run at a greater than an average rate of ten miles an hour, but when I speak of that, gentlemen of the jury, I do not mean to say that ten miles is a maximum speed, but is the average speed, including all the stops on the line, and I cannot say, gentlemen of the jury, that to run a car at 18 miles an hour or 17 miles or whatever the testimony shows, that this is an indication that there is a breach of the ordinance. But on the other hand, gentlemen of the jury, a truck driving along the street is not obliged to wait until every street car in sight has come and passed by, because in some places obviously, gentlemen of the jury, you would never get across. But what it does mean is this, that a person shall exercise reasonable care when a motorman is running at 18 miles an hour, which he may properly do under some circumstances. It does not mean, gentlemen of the jury, that it shall continue at 18 miles an hour when any vehicle which is approaching nearer the crossingdhan he is, attempts to cross in front of him, it is for you to say under the circumstances of this case whether or not the Detroit United Railway was guilty of negligence under the circumstances.”

It is argued that inasmuch as the ordinance referred to was neither pleaded nor received in evidence, the instruction was error, and it is urged that it was rendered more harmful by the fact that the principal ground of recovery was based on excessive speed of the car.

It was held in Richter v. Harper, 95 Mich. 221, that a city ordinance to be available in establishing the negligence of the defendant must be pleaded. In Gardner v. Railway Co., 99 Mich. 182, the rule was approved and the reason therefor stated to be that a common-law declaration will not support proof of a duty created by an ordinance, unless defendant is given notice thereof. This rule has since been adhered to by this court in many cases, although we have held that an ordinance, not pleaded, was admissible in evidence when offered solely for the purpose of affecting the question of plaintiff’s negligence. Putnam v. Railway, 164 Mich. 342; Millette v. Railway, 186 Mich. 634.

In the present case the declaration made no reference to the ordinance. Neither was it offered in evidence. Had counsel in his argument to the jury made the same use of the ordinance without correction by the court, it would have been regarded as a serious error. Coming as it did from the court it had greater force with the jury. While the case finally turned on the negligent operation of the car the question of speed was much relied on in connection with this question. In view of this we think the reference made to the ordinance by the court was harmful to the point of being reversible error. For this reason the judgment is reversed and a new trial ordered, with costs to defendant.

Moore, Steere, Brooke, Fellows, Stone, and Kuhn, JJ., concurred. Ostrander, J., did not sit.  