This case has been once before in this Court, and is reported in 77 Mich. 136. Only three of the Judges were sitting at the time of the argument. The judgment was reversed and the case remanded for a new trial; Mr. Justice Champlin 'and the writer of this opinion concurring in the reversal of the judgment, but reserving their opinion upon the question of defendant’s negligence, and agreeing to the reversal upon the ground that the declaration did not properly allege the defendant’s duty, and its neglect úo observe such duty. The case has been retried, resulting in a verdict and judgment for the plaintiff for the sum of $8,500. Defendant brings the case to this Court by writ of error.
The opinion by Mr. Justice Campbell, reported in 77 Mich. 136, sets out in great detail the most of the circumstances involved in the case, though I shall have occasion to «notice at some length some of these circumstances, and others which are made to appear in the present trial. The plaintiff at the time of the injury, which occurred on the 29th day of January, 1887, was an infant aged five and a half years. The place where the injury occurred, and the location of the railroad tracks and the streets of the village, as far as the highway crossing where the injury occurred, together with the depot grounds, freight buildings, and the building where the beer was stored, are fully represented by the map on following page.
Since the former trial the declaration, by permission of the trial court, has been amended. As amended it contains two counts, but upon the trial the circuit judge *403■compelled the plaintiff to elect on which count he would proceed, and he elected to proceed on the first. This counts sets out what is claimed to be the duty of the •defendant in running its trains over what is called “the track to Sunday Lake Mine,” and its neglect of duty by which it is claimed the injury was occasioned, and charges that the defendant was guilty of gross negligence in the management and control of the three cars which were pushed or kicked backward along this Sunday Lake branch track over and across this highway leading from the corner of Nunnemacher street and Sunday Lake street towards the beer-house, situate near the main line -of the defendant's railroad; said cars being kicked across .said road with great speed, unaccompanied by a locomotive, unattended by a brakeman or the conductor of the train, or by any person to set brakes or give signal or warning, and with no one at the rear or advancing end thereof to observe the crossing, or signal or warn approaching travelers in case of need, and with no one on or about said detached and moving cars acting as a lookout, watchman, or brakeman, with no flagman or switchman at the crossing to warn persons approaching, and without the knowledge of plaintiff or Schupp (in the rear end of whose sleigh plaintiff was riding). The declaration alleges that this was gross negligence on the part of the defendant towards the plaintiff.
*402
*403The declaration further alleges, as to the place where the injury occurred, that at the time of the injury there was, from a point at or near the junction of said Nunnemacher and Sunday Lake streets, a private road which led across said Sunday Lake branch track in a southeasterly direction, to the warehouse grounds situate along defendant's main line and side tracks, which road had been for a long time prior thereto used by the public of Wakefield village, and others who chose to use it, for *404travel" between the village on the Nunnemacher side of said tracks and the warehouse grounds, and that such use was permitted and encouraged by defendant at the time of the injury; that children, at and before that time, had been accustomed to pass and repass along said private road, and over said crossing, which was well known to defendant; and that defendant then and there owed a duty to all persons traveling over said road, and about to cross said branch track thereon, to take precautions in running cars over said crossing to prevent injury to persons thereon.
Some additional evidence appears in this record to that which appeared upon the former trial. The defendant’s counsel present a brief containing 50 pages of printed matter. The brief argues many questions which have been settled by the jury.
At the close of the testimony counsel for defendant submitted the following questions to be specifically answered by the jury, which were answered as hereinafter stated:
“ 1. Did the employés of the defendant, in charge of its train at Wakefield at the time of the accident, know that the child Arthur Schindler was in the sleigh of John Schupp,?
“A. No.
“2. During the time Schupp was moving from the beer-house towards the crossing C were the cars of defendant being backed upon Sunday Lake spur track?
“A. Yes.
“3. Was there anything to obstruct the view of Schupp' of the cars that were backed from the time he left the beer-house until he reached the crossing C?
“A. Yes.
“A. Was the action of the trainmen in charge of defendant’s train at the time of plaintiff’s injury, in pushing or shunting the cars on Sunday Lake spur track in the manner which they did, such as would indicate they were regardless of the consequences, and did not care whether they ran the plaintiff down or not?
*405“A. Yes.
“5. Could John Schupp, by the exercise of such care and prudence as an ordinarily careful and prudent man should have exercised under the circumstances, have discovered that the. cars of defendant were being backed upon Sunday Lake spur track im time to avoid the acci- ■ -dent?
■ “A. Yes.’*
One of the main questions involved in the controversy here is'that, under the findings of the jury, their general verdict should have been in favor of the defendant. Counsel for defendant say in their brief that any claim plaintiff has for recovery must be based upon the fourth question and answer; that of the five questions the second and third are unimportant, as they bear only upon Schupp's negligence, and by their answer to the fifth question the jury have distinctly found Schupp guilty of negligence. It is contended that the answer of the jury to the first question shows that the defendant was in utter ignorance of the presence of any one there to whom it owed a special duty; that the answer to the fourth question, in the light of the answer to the first question, is a plain contradiction and absurd; and that, irrespective of the first question and answer, this fourth .answer is utterly unsupported by the evidence. Thus it is that the learned counsel for defendant attempt to .sweep away the special findings of the jury, éxcept their finding that Mr. Schupp, the driver of the sleigh in which plaintiff was riding, was -guilty of contributory negligence.
As we have said, the declaration charges the defendant with gross negligence. The jury have found the defendant guilty of gross negligence by the finding that its servants were regardless of consequences in shunting the cars upon the Sunday Lake spur track in the manner they did, and that these servants and employés of the *406defendant did not care whether they ran the plaintiff down or not.
The answer of the jury to the first question does not bear the interpretation for which counsel contend. The finding that the employés of the defendant did not know that the child was in the sleigh of John Schupp is not a finding that the employés did not know that people were frequently in the habit of crossing and recrossing this spur track with the knowledge and consent of defendant company. It is not a finding that these employés did not know that John Schupp was at the beer-house at the time their train came down the main track, and at the time they shunted or kicked these three cars loose from their train across this private way, over which people were accustomed to pass and repass. The testimony shows conclusively that these employés saw Schupp at the beer-house when their train came in, and knew he was on his way to that crossing at the very time when they kicked these cars across this highway. The fact, therefore, that these employés did not know that the plaintiff was in John Schupp’s sleigh would have no bearing upon the question of the gross recklessness of these employés in kicking these cars across this-way in the manner they did. The defendant and its employés owed a duty to all persons crossing and recrossing at that point; for it appears by the testimony in this record, which was fairly submitted to the jury, that the railroad company not only permitted its use to all persons crossing over to this warehouse, but had opened that very way by shoveling out the snow for people to pass and repass across this spur track at that point.
It is asserted by counsel for defendant that the answer to the fourth question is utterly unsupported by the evidence. It must be remembered that this question was propounded by counsel for defendant, and, now that the *407jury have found the fact against him, he complains that there was no testimony in the case tending in the slightest degree to support this finding. The testimony introduced on the part of the plaintiff tends to show that the children in the village of Wakefield often used this crossing, played upon and about it, and walked and rode back and forth upon it, to the knowledge of, and without objection from, the servants and employés of the railroad company stationed there; that from five to seven small children went with Schupp, hanging upon his sleigh, across this track to the beer-house on that day, and were with him there at the time of the coming in of the train to which these cars were attached, and were upon that side of the railroad crossing at the time these cars were shunted across this highway; and, if the trainmen had been in their proper places, and had looked, undoubtedly, from the testimony given, they could have seen these children in and around Sehupp’s sleigh at the time they shunted the cars across. There was no other way by which Schupp and these children could get back to the village.
The crew of the freight train consisted of Cole, the conductor; Glavin, engineer; Falvey, fireman; Dnrkie and Sutton, brakemen. When the train came in it ran its entire length beyond the switch marked “W” on the plat, and remained there only a few minutes, when it was moved backward along the spur track, eastward, towards the crossing C. The brakeman Durkie turned this switch, and when the train had acquired considerable momentum uncoupled the three rear cars, composed of; the caboose and two freight-cars loaded with square tim-. her, and these three cars, thus separated and kicked along the spur track, ran with considerable speed towards the crossing. The plaintiffs testimony tends to show *408that the engineer and fireman sat in the cab of the engine, and, with the cars between them and the road crossing C, their sight of this crossing was obstructed. No bell or whistle was sounded, but this may be unimportant, and probably would not be evidence of want of care at this particular crossing, being a private way across defendant’s grounds, had other necessary precautions been taken to prevent persons being injured in attempting to cross there. The plaintiff’s evidence tends further to show that not one of these trainmen got upon these cars, or pretended to exercise any control over them; that no one of them was at the brakes; that Durkie, who opened the switch, stood upon the ground where he uncoupled, and remained with that part of the train attached to the engine; that Cole, the conductor, was across Nunnemacher street, in O’Brien’s saloon, drinking. Sutton, the other brakeman, is not produced as a witness, and his whereabouts at the time of the accident are not accounted for. It is true that Durkie says that he got upon the top of these cars on one side of the boxcar next the cut-off train, and Conductor Cole claims that he was upon the forward, end of the caboose, between it and the car ahead; but we are considering the question whether there was any testimony upon which the jury-were warranted in finding the defendant guilty of gross negligence, and will confine the discussion to the evidence tending to show this fact, without reference to the question whether it was in dispute. We think the evidence and circumstances surrounding the case sufficient to warrant the finding.
It is said that, under the circumstances of this case, knowledge by the defendant’s employés of the presence of the plaintiff there was essential to indicate that these employés were guilty of wanton and reckless conduct in *409shunting these cars over. Counsel, in support of this proposition, cited Chicago & N. W. Ry. Co. v. Smith, 46 Mich. 504. In that case it appears that—
“An 8-year old boy, trespassing upon the premises of the railway company, got on the top of the engine, and was ordered off by the fireman, and, as he jumped off, he fell. The locomotive was started at that moment, and the tender passed over his leg. He was a boy of more than average intelligence, and had been warned against going on the premises or riding on the engine. It was held that the railway company could not be held liable for the injury without showing that the engineer or other servants of the company in charge of the locomotive knew that the child was in the way, or that they had been reckless or negligent in the management of the engine, or could have anticipated the injury.”
The circumstances in the present case do not indicate that Schupp or the plaintiff were trespassers upon the defendant’s premises. Though not a legally laid-out highway, yet it was a way kept open by defendant’s employés, and the public were permitted, by consent of the company, to use it as a highway. It was the only way in use to this beer-house, situate along said company’s main track, and upon the company’s premises; and defendant owed to the public that same degree of care in handling its trains over and across this way as though it had been a public way, except, perhaps, a statutory duty of ringing its bell or blowing its whistle on approaching the way. Hanks v. Railroad Co., 147 Mass. 495 (18 N. E. Rep. 218); Duame v. Railway Co., 72 Wis. 523 (40 N. W. Rep. 394). In fact, it appears by this record that the company’s employés, in making up trains standing across this way, had been, accustomed to open the train at this crossing for the purpose of public travel over it, and that in shunting its cars theretofore its brakemen had been accustomed to climb upon the top of the cars, with their hands upon the brake, thus keeping *410control of the cars shunted or kicked backward towards this way. The circumstances of this case, and the manner in which these cars were permitted to make this crossing, and the rights of the plaintiff over this way, certainly do not bring this case within the ruling of this Court in Chicago & N. W. Ry. Co. v. Smith, 46 Mich. 504. It is said by defendant’s counsel that the testimony tended to show that the conduct and management of' these cars upon that occasion was not reckless and wanton, but was the usual and customary conduct of trains in similar circumstances and in similar places; but, as we-have said, the jury found this fact against the defendant, and we now know of no rule or decision of any court which holds the defendant not guilty of gross and wanton negligence in kicking or shunting cars across a highway without guard or brakeman upon such cars to control them, in the face of the fact that people are constantly passing and repassing over the way; and, if this is the customary and ordinary way of shunting out cars over traveled ways, it is time that railway companies took some precaution to prevent accidents, which are very likely to occur by this method of business.
It is claimed that the negligence of Schupp is to be imputed to the child, and counsel cite in support of this proposition Lake Shore & Mich. Sou. R. R. Co. v. Miller, 25 Mich. 277, as settling the rule i-n this State. In that case, Mrs. Miller, the plaintiff, was a woman of full age and discretion, and was riding with Mr. Eldridge, who-was driving the team. It was said by the Court in that case that the evidence tended affirmatively to prove actual and gross negligence on their part which contributed directly to produce the injury complained of, and that they were both aware in fact that danger was to be apprehended there; and the rule was-settled in the case that the negligence of Eldridge, the driver of the *411team, was the negligence in fact of the plaintiff; that this was a private conveyance, and the plaintiff identified herself with the driver, and, unless the driver was free from negligence, she could not recover. This is the general rule, and has been since followed in this State. But the facts in the present case plainly distinguish it from that. The charge in the declaration is for gross negligence. The jury have found the defendant guilty of gross negligence. There is no room, therefore, for the claim that the defendant company should be excused for its negligence, though Schupp may have been negligent, and his negligence might have been imputed to the child. Whether, under the circumstances stated here, Schupp’s negligence could be imputed to the child, we do not determine, as under the finding of the jury there is no room for contending that Schupp’s or the plaintiff’s contributory negligence could be made applicable in determining the rights of the parties in this case. The term “gross negligence” has been used in cases decided by this Court, and has a definite meaning, when referred to as authorizing a recovery for a negligent injury, notwithstanding the contributory negligence of the plaintiff. It means the intentional failure to perform a manifest duty, in reckless disregard of the consequences, as affecting the life or property of another. It also implies a thoughtless disregard of consequences, without the exertion of any effort to avoid them.
Counsel for defendant say in their brief, in referring to Lake Shore & Mich. Sou. R. R. Co. v. Miller, 25 Mich. 277, and other cases cited sustaining the doctrine there laid down:
“But, again, all the above cases were cases of adults, and in that respect differed from the case at bar, of an infant 5 years old, and incapable of taking care of itself.”
*412Counsel, in support of their first proposition that Sehupp’s negligence was the negligence of the child, cite Waite v. Railway Co., El. B. & E. 719. In that case it appears that the plaintiff was an infant aged five years, and accompanied Mrs. Park, his grandmother, to the railway, and by her negligence, combined with the negligence of the servants of the railway company, the plaintiff was severely injured, and brought an action by his next friend against the company. It was held by the court of exchequer chamber, affirming the court of queen’s bench, that the child was so identified with Mrs. Park, in whose care he was when the accident happened, that her contributory negligence would prevent recovery. In that case the question of the' gross negligence of defendant was not presented, and therefore the case has no weight in the consideration of the present one, under the claim made.
Some other questions are raised by counsel in their brief. It is claimed that there was variance between the proofs and the allegations of the declaration in reference to Sunday Lake street. The declaration alleges—
“That at.the time aforesaid, leading from a point at or near the junction of said Nunnemacher and Sunday Lake streets, on the north side of said Sunday Lake branch track, a private road existed and led across said Sunday Lake branch track, in a south-easterly direction, to the warehouse grounds situated along said defendant’s main line and side tracks, and thence beyond, which private road, and the crossing thereof over said Sunday Lake branch, was, at the time aforesaid, and had.been for a long time prior thereto, used by the public of Wakefield, and others who chose to use it, for travel between the village on the north side of said tracks, and the warehouse grounds, and beyond, in crossing said Sunday Lake branch track; and the use thereof, as aforesaid, was permitted and encouraged by the defendant at the time aforesaid.”
*413There was no such variance as claimed by defendant’s counsel.
It is also claimed that the court was in error in not permitting the counsel for defendant to read in evidence on the trial the testimony of one Luke Sweet, which was taken upon the first trial of the cause. In support of this claim counsel cite Labar v. Crane, 56 Mich. 585. That was an action for malicious prosecution. The case had once been tried. At the time of the second trial it appeared that one Allen, who was the justice who issued •¿he warrant, was beyond the jurisdiction of the court, and the plaintiff offered to put in evidence the testimony given by him upon the first trial in the circuit court. For this purpose he called the stenographer who took the testimony, and he testified that he had it present, and that it was taken correctly. The plaintiff then offered to read it, but the defendant objected, on the ground that he had since the trial taken the deposition of Allen in the case, by the consent of the plaintiff? and that he had it present then in court. This was conceded, but the plaintiff insisted that, notwithstanding this, he was entitled to read the testimony of Allen given upon 'the first trial, and the court received it. It was held by this Court that the trial court was not in error in receiving this testimony. It was said by this Court in that case:
“ It may be that the deposition was only supplementary and complemental to the former testimony, or was taken to bring out on the part of the defense some one point not sufficiently presented or explained before. In such a ease it would be clear that the deposition would not exclude the reading of the former testimony. But we are not satisfied that it should be excluded if the deposition had been shown to cover the whole case. The plaintiff had examined the witness in open court, with full liberty of cross-examination, and, if the defendant on his own part had examined him with equal fullness afterwards, *414there would seem to be no good reason why each party should not be at liberty to put in evidence the testimony he had taken. It may be said that the deposition would be most likely to be taken down with accuracy, and this would be fair matter of argument if the two were found to differ; but we do not think the defendant could exclude the plaintiff's right to put the evidence he had taken before the jury by subsequently retaking it on his own behalf."
The present case does not fall within that ruling, and the reasons given are not applicable to the present case. In the present case it appears that there had been two trials in the circuit court before the present trial. On the first trial the plaintiff had verdict and judgment, which was reversed in this Court, and a new trial ordered. At that time the declaration did not allege gross negligence, and, under the intimation of this Court, plaintiff in the court below, after the case was remanded, amended his declaration by alleging the gross and wanton and. reckless conduct of the defendant's servants and agents jn the manner in which they kicked those cars backward across this highway. The cause was tried upon that issue, and Sweet, who had been examined as a witness upon the first trial, was again examined by the defendant. This trial resulted in a verdict for the plaintiff, and this verdict was subsequently set aside by the trial court. The present trial is the third one, and,' Sweet not being present, the counsel for defendant proposed to read his testimony taken upon the first trial, and not upon the second. This was objected to by plaintiff's counsel, who claimed that the defendant was entitled to read the testimony taken upon the second trial, but not upon the first. This was so ruled by the court,' and defendant's counsel read to the jury the testimony of Sweet taken upon the second trial. ■ We find no error in this. The issue made by the amended declaration was quite different from that *415upon the first trial, and it appears that upon the second trial the witness was fully examined and cross-examined by counsel.
But we need not rest the question upon this reason alone. Mr. Sweet was one of the. sectionmen of the defendant company. He lived a mile and a half from this crossing, and testified that it might have been two weeks before the accident since he had seen the crossing, and that it might have been used as a crossing, and that it probably was so used. He was called by the defendant for the purpose of showing that he was directed by the roadmaster to take n'p the crossing at the crossing C, and that he did so in the fall before, and notified Schupp and other teamsters not to cross there, and he so testified. The witness was fully examined and cross-examined on the second trial, under the issues then made, and the court was not in error in holding that the testimony given by him on the first trial, under the issues then made by the pleadings, could not be read in evidence by the defendant. We have looked into the record here containing the testimony of Luke Sweet on the first trial, and are satisfied that the defendant was not prejudiced by the court ruling it out. The testimony given by him on the second trial was as favorable to the defendant as that given by him on the first trial. In fact, it is substantially the same.
Some other errors are alleged, but we do not deem it important to notice them, and such as are not noticed herein are overruled. The oral arguments, in the main, were directed to the points which are here discussed.
We find no error in the record, and the judgment must be affirmed, with costs.
Champlin, 0. J., and McGrath, J., concurred with Long, J. Morse, J., did not sit.