(dissenting). This cause has been tried a second time, and defendant has appealed from a verdict and judgment for the plaintiff. The outlines of the case will be found in 137 Mich. 580, and the proofs are much the same upon this record as upon that. Upon that hearing we refrained from granting a new trial, upon the ground that the verdict was against the evidence, inasmuch as the case was to be reversed upon other grounds, and we did not pass upon the question of defendant’s negligence. We did hold that there was that in the case which made contributory negligence a question for the jury.
The facts stated show conclusively as to most questions, and with but a little evidence to the contrary as to some of them, that the plaintiff drove his horse and wagon upon the track and stopped within a couple of rods of an approaching engine; that he had abundant opportunity to see it for a distance of 30 to 40 feet before it reached the highway, and while he was yet in a place bf safety; that a brakeman, upon the footboard to make a coupling, signaled the engineer as soon as it became apparent that he intended to cross, and stepped off the engine, which was running slowly, as he well might do, to avoid injury to himself; that all of this time an automatic crossing alarm bell was clanging, and the engine *375bell was ringing, and both were plainly heard by persons near; that there was no evidence that there were any other vehicles or pedestrians in the immediate vicinity, or any unusual travel on the street. There is a bare scintilla of evidence, and hardly that, upon one point, viz., the presence of the brakeman upon the engine, supporting the suggestion that he was not there at all.
It is said that the cause was properly allowed to go to the jury upon the theory that, although there was no negligence in any one of the particulars alleged, there might be in all taken together, and that the surrounding circumstances might make conduct negligent which otherwise would not be. We need not question the latter proposition as a general principle; but we are able to say that none of the things done or omitted should be made negligence by the surrounding circumstances of this case. The former contention we think unsound.- We are therefore of the opinion that a verdict should have been directed for the defendant upon the ground that negligence was not shown. We are also of the opinion that the evidence most clearly shows contributory negligence, and while we think that we should not say that as a matter of law — though it is a close case upon that point — it would itself be a sufficient reason for setting aside the verdict under the statute.
The judgment should be reversed, and, as there is every reason to suppose that the full case is before us, the defendant should not be subjected to further litigation.
Grant, J., concurred with Hooker, J.