(dissenting). I think the learned circuit judge properly directed a verdict, and for the reasons stated in his instructions. Plaintiff knew that there were two tracks; that cars were liable to run each way at any moment; that stops were brief, for the purpose of letting passengers on and off; and that, if the car was at the time standing still, it was liable to start any moment. He kept his attention fixed on the moving car coming from the east. He had stopped about 40 feet from the track, near the sidewalk, to let his companion get out. He then started to cross, but, seeing the car approaching from the east, he “pulled up, and pretty near stopped again;” then, thinking he had plenty of time to avoid this car, he drove on. He admitted that a glance to the left would have shown him the other car approaching, and that, if he had so glanced, he could and would have avoided the accident. There is no claim that the car was going beyond the rate of speed fixed by the ordinance, to wit, six miles per hour. The car stopped only momentarily at the switch, about 100 feet away, when evidently plaintiff saw it. The only witness upon the car (Judge Maxwell) testified that he was not sure whether it just slowed up or stopped.
It was as much the duty of the plaintiff to look out- for himself, and watch the car, as it was the duty of the motorman to watch the plaintiff. Their obligations were mutual. If both violated such obligations, and acted negligently, neither can recover for injuries received. 'The motorman had the right to assume that the plaintiff, *623riding in plain sight, would and did see the car, and was under no obligation to bring his car to less than the allowed rate of speed, or to attempt to stop it, until he saw that plaintiff was taking no heed, and was about to ride into danger. If motormen were obliged to assume that everyone they saw approaching the track upon a public highway ■did not see it, and bring their car to a stop, the demands of public travel could not well be met. We so held in a case where the ordinance required street cars to stop when ■crossing the track of another road. It was there held that the motorman, who had made the stop required by the ■ordinance, and attempted to cross another road, whose ■car was approaching 150 to 200 feet away, and did not make the required stop, was not guilty of contributory negligence. We there said:
“If he must wait before he can go forward until he knows that the approaching car will stop, he will fail to meet the' demands of modern street-railway traffic.” Becker v. Railway Co., 121 Mich. 580, 586 (80 N. W. 581).
For the same reason a motorman cannot be required to check his car to less than a lawful rate of speed upon the assumption that a person, driving in his vehicle, does not see him. I think the case is expressly ruled by the following decisions of this court: McCarthy v. Railway Co., 120 Mich. 400 (79 N. W. 631); Hilts v. Foote, 125 Mich. 241 (84 N. W. 139); Bennett v. Railway Co., 123 Mich. 692 (82 N. W. 518); Henderson v. Railway Co., 116 Mich. 368, 374 (74 N. W. 525); McGee v. Railway Co., 102 Mich. 107 (60 N. W. 293, 26 L. R. A. 300, 47 Am. St. Rep. 507); Doherty v. Railway Co., 118 Mich. 209 (76 N. W. 377, 80 N. W. 36). In Hilts v. Foote we said:
“Thompson [the driver] had ample time to look both west and east in time to see the approaching car, and stop so as to avoid the accident. It was his duty to do this.”
It was equally the duty of the plaintiff in this case to do likewise. He had no right to assume either that the *624car would stand still until he had crossed, or that the motorman saw that he did not intend to stop, but to drive across, regardless of consequences.
The judgment should be affirmed. '