
    TOMCZYK v. DETROIT, GRAND HAVEN & MILWAUKEE RAILWAY.
    1. Death — Presumption of Decedent Motorist’s Due Care — Railroad Crossing.
    
      Prima faeie presumption that decedent motorist, whose car was struck on highway crossing railroad by engine of a passenger train, was exercising due care is not applied where known facts prevent it as where decedent had unobstructed view of approach of train for upward of a mile.
    2. Railroads — Negligence — Proximate Cause — Contributory Negligence.
    That train was being operated at speed in violation of city ordinance does not fasten liability upon defendant where decedent motorist’s want of care was proximate cause of accident.
    3. Witnesses — Matters Equally Within Knowledge of Deceased.
    Testimony of engineer that whistle was sounded and bell was ringing upon approach to railroad crossing held, not inadmissible where it is not affirmatively established that deceased did know of such faets (3 Comp. Laws 1929, § 142Í9).
    4. Motor Vehicles — Contributory Negligence — Subsequent Negligence.
    Deeedent motorist was guilty of contributory negligence as a matter of law where, having ample opportunity to see approaching passenger train and stop in a place of safety, he got upon tracks and received injuries resulting in death; and such facts negative issue of subsequent negligence.
    Appeal from Wayne; Webster (Clyde I.), J.
    Submitted April 17, 1934.
    (Docket No. 118, Calendar No. 36,938.)
    Decided June 4, 1934.
    Case by Stella Tomczyk, administratrix of the estate of Anthony Tomczyk, deceased, against Detroit, Grand Haven & Milwaukee Railway for the alleged negligent killing of plaintiff’s decedent at a railroad crossing. Directed verdict and judgment for defendant. Plaintiff appeals.
    Affirmed.
    
      Harry J. Lippman, for plaintiff.
    
      H. V. Spike, for defendant.
   Wiest, J.

The afternoon of May 20, 1926, plaintiff’s decedent drove an automobile upon the track of defendant’s railroad at the crossing of the Seven Mile road in the city of Detroit, and was struck by the engine of a passenger train and received injuries causing his death. This suit was brought to recover damages and resulted in a directed verdict for defendant.

Plaintiff’s decedent drove east on the Seven Mile road and approached the railroad crossing where there were four tracks crossing the street. A train was going north on the third track from the point of his approach, and that track was 40 feet from the westerly line of the railroad right of way. At that crossing the driver of an automobile, at any point within such 40 feet, had an unobstructed view of the railroad tracks and of the approaching train for upward of a mile. No eyewitness testified to the approach of the automobile to the tracks and the rule of presumptive care on the part of the driver is invoked in behalf of plaintiff. The known facts prevent application of the prima facie presumption accorded by the no eyewitness rule. See Rushford-Surine v. Railway Co., 239 Mich. 19.

Whether the train was being operated at a speed in violation of the city ordinance does not fasten liability upon defendant for plaintiff’s decedent’s want of care was the proximate cause of the accident.

' Objection was made to the testimony of the engineer that the whistle was sounded and the bell was ringing upon approach, to the crossing, and exclusion was urged under the rule that it was equally within the knowledge of the deceased (3 Comp. Laws 1929, § 14219). The case of Noonan v. Volek, 246 Mich. 377, settles the point against the contention.

Plaintiff also relies upon the question of subsequent negligence. The facts negative such an issue. Plaintiff’s decedent had ample opportunity to see the approaching train and to stop in a place of safety and, whether he saw the train or not, he was guilty of contributory negligence as a matter of law. See, Downey v. Railway Co., 230 Mich. 243; Brady v. Railway Co., 248 Mich. 406; Richman v. Railway Co., 254 Mich. 607.

Judgment is affirmed, with costs to defendant.

Nelson Sharpe, C. J., and Potter, North, Fead, Butzel, Bushnell, and Edward M. Sharpe, ' JJ., concurred.  