Fritz v. Railway Co. collision. It is a rule recognized by repeated decisions of this court, and maintained by text writers, that the fact of a precedent negligence of plaintiff, resulting in producing a situation or a condition known to defendant, who, after the discovery of such condition, may, by the exercise of care, avoid injury, is not a contributory cause to an injury thereafter produced by disregard of this discovered condition. One of the earliest cases to lay down this rule is Davies v. Mann, 10 Mees. & W. 545. This rule is well stated in Bish. Noncont. Law, sec. 466: "It is sometimes very correctly said that, if one discovers another to have been negligent, he must take precautions accordingly, omitting which he is liable to the other for the damages which follow from said new want of care; for, however nearly related two separate negligences may be, the one cannot bar an action for the other unless it is contributory, and, though an unseen position might contribute to an accident, a discovered one cannot." See, also, Railway Co. v. Steen, 42 Ark. 321. This rule has been applied by this court in street railway cases. See Laethem v. Railway Co. (Mich.), 58 N. W. Rep. 996 and Montgomery v. Lansing City Elec. Ry. Co. (Mich.), 61 N. W. Rep. 543. In each of these cases the situation of plaintiff was such that it was apparent to the motorman that, if the car continued in its course, a collision would be inevitable, and this was apparent to him for a considerable time before the collision. Do these cases necessarily rule the present? In this case it is apparent that the collision was of a sudden. The motorman did not see in advance that the plaintiff was about to cross the track, nor until a very few seconds before the collision actually occurred. It is not a case in which the plaintiff had been driving up the track, and was run down by the motorman, but an attempt to cross the track, unexpected and sudden. If we assume that, under these circumstances, the plaintiff had by this act placed himself in a position where his negligence might have been dis Fritz v. Railway Co. covered, and the car brought under control, it will result that, in every case where an attempt to cross ahead of a street car is made, the question of whether there was a timely discovery of the situation will turn upon whether the motorman could have stopped his car after the attempt was made, and it would follow that, if he could, his negligence will authorize a recovery, notwithstanding the contributory ne gligence of plaintiff. With such a rule, there could no longer be any such thing as contributory negligence, defe ating a recovery, in any case where the defendant's negligence consists of failing to control the car. We think the circumstances of this case are not such as to justify the application of the doctrine of Davies v. Mann and kindred cases, and that the plaintiff's negligent act must be held to have directly contributed to the injury. See Cont. Pass. Railway Co. v. Chatterson (Ky.), 29 S. W. Rep. 18; Boerth v. West Side R. Co. (Wis.), 58 N. W. Rep. 376. Judgment affirmed. LONG, GRANT and HOOKER, JJ., concurred with MONTGOMERY, J. MCGRATH, C. J., dissented. NOTE.-This case is cited in Blakeslee v. Citizens St. Ry. Co., post. It is contributory negligence as matter of law for a person to drive upon the track of an electric street railway without looking or listening for approaching cars; and this none the less because his load and position upon it are such as to make it inconvenient to take such precaution. Cases of this series cited in opinion, appearing in bold faced type: McGee v. Consolidated St. Ry. Co., ante, p. 462; Fritz v. Detroit Citizens St. Ry. Co., ante, p. 480. APPEAL by defendant below from judgment of Circuit Court, Kent county. Facts stated in opinion. Kingsley & Kleinhans, for appellant. Earle & Hyde, for appellee. HOOKER, J.: The plaintiff, while driving a team attached to a load of barrels on a narrow street, turned his team upon the track of the defendant's trolley road, to pass a carriage standing by the roadside. As the front wheel of the wagon was brought upon or near to the westerly rail of the track, the load was struck upon the side, near the front, by defendant's car, whereupon the plaintiff's team ran away, and he was injured. He recovered a verdict in an action for negligence, and the defendant has appealed. The principal questions raised arise over the claims of the defendant's counsel that (1) plaintiff s contributory negligence conclusively appeared; (2) if not, the court erred in his instructions to the jury upon that subject. Blakeslee v. Railway Co. The evidence showed that the plaintiff sat in front of his load of barrels, which was 28 feet long, and 12 to 14 feet wide at the top, and that he occupied a position from which he could not see what was behind without moving to the edge of the load; that, without doing so, he turned his horses upon the track, to pass a vehicle, and was struck, as already stated. The testimony varied as to the distance between the wagon and the approaching car, one witness putting it about 100 feet; others, as low as 10 or 15 feet. It is contended that the evidence demonstrates the proposition that the car must have been so close when the plaintiff turned upon the track that it could not be stopped, and therefore that it should be held, as matter of law, upon established facts, that the plaintiff was negligent in turning upon the track in front of a rapidly approaching car, and that the defendant was not negligent. We are unable to say that the evidence is conclusive in this regard. In a crowded thoroughfare, where there are four tracks upon which cars are passing at intervals of four minutes, caution is necessary upon the part of all who use the street; and whether an accident is caused by the neglect of one or two parties must usually be a question of fact where, as in this case, the witnesses do not agree as to material circumstances. The use of electric cars involves, as it was intended it should, rapid transit. More or less time is required to stop them. They have the right of way, within reasonable bounds; and other travelers, by ordinary methods, owe the duty of making way for them without unnecessary or unreasonable delay. Of necessity, ordinary vehicles must be permitted. to drive upon and across the tracks when the cars are at a reasonably safe distance, and the railway company is in duty bound to keep a sharp lookout, and use prompt measures to prevent accidents when danger threatens. But persons should not pass upon a track without using some precaution to ascertain whether danger is imminent. Blakeslee v. Railway Co. The case of McGee v. Consol. St. Railway Co. (Mich.), is a case in point. In that case a pedestrian looked in one direction but not in the other, before stepping upon the track, when by doing so he would have seen the lights of the approaching car. In the more recent case of Fritz v. Detroit Citizens Railway Co. (Mich., decided April 16, 1895), it was held that one riding in a covered carriage, and thereby prevented from looking behind, could not recover against the street car company, when he turned suddenly upon the track in front of a car, and was injured. From these cases it appears that it is negligent to go upon a track without taking some precautions to ascertain whether it is safe and that a person cannot avoid this by placing himself in a position where he cannot easily see an approaching car. The defendant did this thing; and if the car was so close that it can be said to have been an imprudent thing to do, if ordinarily prudent persons, knowing the whereabouts of the car, would not have thus turned upon the track, his act was negligent, and should preclude a recovery, if it contributed to the injury. The charge of the court seems to qualify this duty to look for an approaching car by making it depend upon his convenience. After stating that he was not a trespasser upon the track; that the street car company had only an easement, and had no exclusive right to travel upon its tracks; and that it was bound to take the same care in preventing collisions as the driver of a wagon-he added, "But the plaintiff would not have the right to drive into apparent danger, such as would be in the face of an approaching car, if he knew, or could have reasonably ascertained, that fact, under the circumstances in which he was placed." And again he said: "If, under all the circumstances of the case, considering the wagon and rack that the plaintiff was using, the manner in which it was loaded, the place upon the rack where plaintiff was sitting, the team he was driving, the obstruction in plaintiff's way |