(dissenting). I can find no material difference between the record in this case and that in the case of Klanowski v. Grand Trunk Ry. Co., 57 Mich. 525.
In'that case the administratrix of the father of the plaintiff in this case recovered a judgment against the defendant, for the killing of the father by the same act and transaction which occasioned the injury to the son, for which damages were recovered in the present action.
The facts are so clearly set forth in the opinions filed in that case that I do not consider it necessary to again specify them. It is sufficient to say that, in my opinion, the question as to the negligence of the plaintiff and defendant were each properly submitted to the jury.
As to the ■ discrepancy between the declaration and the proofs as to the name of the crossing, as the point was not raised in the court below, and no particular stress is laid upon *290it in this Court, we shall disregard it. It could have been amended at the trial, if attention had been called to it, and the ends of justice are not intended to be defeated by a mere technicality.
A witness, Henry Voelkner, was permitted to testify that on the sixteenth of August following the accident, which occurred June 23, 1883, and before the bushes along the line of the railroad were cut, he went with his brother, and made some observations. He went out with a wagon, with a box upon it, with a board across the box, abont the same as the one described by the witnesses as being used by the Klanowskis. The Voelkners placed themselves in this wagon, about where the plaintiff in this case told them he and his father stopped and looked and listened at the time of the accident. He then detailed what he saw and noticed when the train came along.
This evidence was objected to as incompetent, irrelevant, and immaterial, and an exception taken.
I fail to discover any error in the introduction of this testimony. It became a material question upon the trial as to whether the bushes along the line of defendant’s track had any perceptible bearing upon the question of the plaintiff’s negligence in not seeing the head-light of the approaching train. It was competent for any person before the bushes were cut to place himself in the same position the plaintiff was, and testify what effect the bushes or the telegraph poles had upon his vision. It would have been competent for the court, in his discretion, to have allowed the jury to have inspected the premises, if the bushes had not been cut down before the trial, and to have thus determined, by their own observation, the truth of the contested question, whether or not such bushes obstructed the view of plaintiff,1 Such experiments and observations are frequently made by witnesses, and admitted without question.
*291Whether he stood in the right place, in the spot located by plaintiff, or whether such point was properly located by the plaintiff, were questions of fact, to be determined by the jury; but if they were satisfied that Voelkner was In the same place, and situated towards the track as the plaintiff was at the time of the accident, his testimony as to what he could see and hear was important and admissible. If, as contended on the argument, and as would appear from the testimony, he .saw the head-light of the train, his evidence in that respect was of more benefit to the defendant than the plaintiff; and this fact is cited in defendant’s brief as a strong point in favor •of the theory that plaintiff was negligent.
But it is objected that his testimony to the effect that, after he saw the head-light of the approaching train, he jumped out •of the wagon, and walked rapidly to the track to see how long it would take, and that when he got to the track the train was passing him, and that it took him 55 seconds to walk 65 feet, was inadmissible, and tended to prejudice the jury against defendant.
It is urged that there were no elements of certainty about these comparisons; that it could not be certainly ascertained from his evidence what the rate of the speed of the train ■was, or where it was located when he first observed its headlight. But it has been often decided that it is competent for a witness to testify as to his judgment of the rate of speed of a, railway train; and while nothing is absolutely certain when .the information to be obtained must pass through the mouths of witnesses, or depend upon their judgment, I fail to perceive how this evidence could have been of any detriment to -defendant.
The defendant had within its power and reach the evidence •of the speed of its train on both occasions, and the headlight, according to Voelkner’s testimony, was observed as .-soon as it could have been seen from that point, as he stationed himself there before the train came in sight. It is *292claimed by the counsel for the defendant that the evidence of Yoelkner tends entirely to establish the negligence of plaintiff, as he both saw and heard the train in time to avoid accident.
He does testify that while stopping there he both saw and heard the train. If the fact of his being allowed to testify that he got out of the wagon, and walked to the track, and thereby giving the time it took the train to pass the crossing after he first saw its light, was error, it certainly was a harmless one, as the controverted point was not the speed of the train, but whether the plaintiff stopped and looked and listened, and did not see or hear the train, as he testified.
I do not think the case should be reversed on this ground»
It is also complained that the charge of the court was not specific enough, and that the jury were left to draw improper inferences from the testimony, and were given an opportunity to find that there might be unusual circumstances which.made the high rate of speed, not negligence in itself ordinarily at such a crossing as the one where the accident, occurred, unreasonable, and therefore negligent, and without defining what these unusual circumstances should be in-order to create negligence.
The principal negligence of the defendant relied upon and made prominent upon the trial was the neglect to ring the-bell or sound the whistle for this crossing. The rate of speed of the train was of secondary importance.
The court was requested by the counsel for defendant to instruct the jury as follows:
“ The evidence does not show that at or about the Miller-crossing there was any such unusual or extraordinary circumstance or special danger, forbidding or making unreasonable the rate of speed at which the train was running when, approaching this crossing.”
If the court had absolutely refused this request, there-would have been no error committed; as if, as claimed by *293plaintiff, bushes were permitted by the defendant corporation to grow up and stand within its right of way, obstructing the view of approaching trains, a proper care and caution upon the part of the company would have necessitated a slowing up at this crossing. The court read the request, and then said:
“ That is a fact for you, gentlemen, and I leave that to you •to say whether there was any unusual circumstance.”
I can find no error in this instruction. It is not likely, •nor to be presumed, that the jury would go hunting around ■to find something not in the testimony, upon which to base negligence in this regard. It is evident to my mind that the ■negligence found by the jury was the failure to use the signals required by the statute; but if they had found that the rate of speed was unreasonable, under the conditions of the night and the crossing, I should not feel, by any means, impelled to disturb their verdict.
A hareful consideration of the evidence and the charge of the court confirms my opinion, entertained upon the argument, that the judgment is right, and should be affirmed.
See How. Stat. § 7630.