I concur in the opinion of my brother Blair, except upon one point. I do not think the case* is one for the application of the doctrine of discovered negligence ; i. e., negligence on the part of the motorman after discovering that the plaintiff was in a dangerous position on account of his own negligence. Plaintiff, under his own testimony, was in no position of danger until he suddenly turned across the track, when the car was but a, ' few feet behind him. The whole thing happened almost instantly. I do not think there is any evidence to show that the motorman did not do all withinjhis power to avoid the accident when he saw the plaintiff turn his horse directly across the track. If there is any room for the application of the doctrine of discovered negligence, it must be because-it was the duty of the motorman to anticipate that, because the plaintiff had driven into a narrow space, he (the-motorman) must anticipate that he was liable to turn across the track. I regard it as settled by the decisions-of this court that it was plaintiff’s duty, knowing the-proximity of the car, that it was approaching, and that it. could not turn out, to stop before putting himself in a, place of danger, and let the car pass. This court said, in Rascher v. Railway Co., 90 Mich. 413, speaking through. Chief Justice Morse: “Street cars have precedence, necessarily, in the portion of the way designated for their use.” It was there also said that “this superior right must be exercised with proper caution and due regard for the rights of others.”
Plaintiff could not deliberately place himself in the narrow space between the track and the curb, knowing that *507the car was coming close behind him, and then invoke the doctrine that he was in a place of danger and had the right to act upon the spur of the moment as it seemed to him best to secure his safety. We held, in Redson v. Railroad Co., 120 Mich. 671, that, where plaintiff was guilty of gross negligence in leaving his team upon the track in front of an approaching train, he could not be permitted to recover upon the theory that the engineer, knowing the danger, willfully ran them down, where there was no proof to contradict the engineer’s testimony that he acted with proper caution as soon as the situation became apparent to him. Although that was a case of a steam railroad, I think the rule there established is equally applicable to this case. If, however, the question was one for the jury, I think the court should have given the following request:
“ The drivers of wagons have the same right upon the approach as has the railroad company. Each must go and come with due regard to the rights of others. It is well known that a street car cannot turn out; that it cannot stop readily and quickly; and persons in going on or across a street railway track must make sure that no car is approaching within such a distance that the person operating the car will be unable to stop it so as to avoid an accident. And if you find from the evidence in this case that, at the time the plaintiff undertook to cross the street railway track, if he did undertake to do so, a car was so close to him that the operatives of the car could not, with the use of the means at their command, stop the car in. time to prevent an accident, then your verdict must be for the defendant.”Hooker, J., concurred with Grant, J.