(after stating the facts). It is said in the brief for plaintiff — appellee—that—
“In view of the testimony and the law applicable, the case, when finally submitted to the jury, presented a clearcut issue of fact which may be stated as follows:
“Was the crew of the engine negligent while proceeding from the Beaver street crossing to the standing cars, in failing to heed or observe the warnings of danger given to stop the engine before hitting the standing cars, which resulted in the injury to plaintiff?
“On this issue of fact the jury found the defendant negligent. The court properly charged them on the law, calling attention to the main and decisive issue in language not at all unfavorable to defendant.”
It is also said:
“The material issues in the case and to which the testimony was directed, were the operation of the engine, and the care, or lack of care, of its crew, from the Beaver street crossing up to the time of the coupling to the standing cars. The negligence claimed was the absence of a lookout on the gondola car, the failure to observe and heed the warning cries and gestures of Mrs. Ranney, and to bring the engine to a stop before attaching it to the standing cars, and which caused an injury to plaintiff, there being ample time to do so and *271avoid the accident, if the defendant was not negligent and careless in respect to the operation of its engine under the circumstances.”
An examination and analysis of the pleadings and of all the testimony makes it apparent that when the taking of testimony was concluded plaintiff’s case rested upon the proposition that actionable negligence was made out because some of the switching crew did not sooner observe and understand the actions and calls, or exclamations, of the witness Ranney, assuming that the jury believed her testimony to be true, and stop the movement of the engine' before it reached the standing cars. The court might very properly have eliminated and removed from the consideration of the jury every other charge of negligence, because it does not appear that any other alleged negligent act contributed to the injury of plaintiff.
Regarding the testimony most favorable to the plaintiff, it appears that the theater of action was small, and possible action was measured by seconds of time. Called upon to determine so narrow an issue, the jury was told that—
“If Mrs. Ranney signaled to these men in time so that, if they had been observing her, if they .had been looking out for danger of any kind, they could have seen her and could have stopped the train, then they would have been negligent.”
This i$ the only application which was made by the court of the law.to the facts, the only specification of what would be negligent conduct on the part of defendant's servants. See, generally, Linstrand v. Lumber Co., 65 Mich. 254; Schindler v. Railway Co., 77 Mich. 136; Anderson v. Boom Co., 57 Mich. 216; Heller v. Railway Co., 109 Mich. 53 (63 Am. St. Rep. 541); Huggett v. Erb, 182 Mich. 524 (Ann. Cas. 1916B, 352).
This instruction does not state the measure of the duty of defendant in the circumstances. It does not *272leave to the jury any question of disputed fact. That Mrs. Ranney could have been seen and in time to have stopped the engine is not a disputed fact. Whether she stood upon the porch of her house or ran towards the engine, she was within the range of the vision of defendant’s servants. If the jury believed her, she signaled, — cried out, waved her hands, advanced towards the engine and its crew, — at a time when, if she was observed and understood, the engine could have been stopped. Obviously, the duty of the switching crew was to observe the cars they were approaching, and any knowledge they may have possessed that children were sometimes on the right of way would naturally cause observation to be directed towards the standing cars.
Beyond this, we think the measure of their duty, stated abstractly, was to heed notices and warnings of danger and peril observed and understood by them, and, reference being had to the work they were doing, they should have observed in this connection those things, which the ordinarily prudent person about the same work would have observed. Manifestly, in order to fix defendant’s liability, the duty must have arisen and have been disregarded at a time when, by prudent conduct, injury could have been avoided. Applied to the circumstances disclosed in this case, the rule does not-require that defendant’s servants search, with their eyes, the porches of the houses in view for signals of danger, nor that they should apprehend peril, because some one was, or appeared to be, waving to them. If Mrs. Ranney’s. actions were observed and their meaning understood; the engine should have been stopped as soqn as it was reasonably possible to stop it. If Mrs. Ranney’s. actions were so plainly in view, her person so near to the right of way, her purpose so evident, that a member of the switching crew, exercising ordinary care in performing his duty, would *273have observed and understood her, the engine should have been stopped.
The case is so close a one upon the. facts, — there being so much convincing testimony supporting the conclusion that defendant’s servants were guilty of no negligence — that the charge of the court complained about may be supposed to have largely influenced the jury in arriving at a verdict. And as the instruction cannot, for reasons stated, be approved, the judgment must be set aside and a new trial granted. The court might well have given defendant’s ninth preferred instruction, or its equivalent. It was not error to refuse the other preferred requests above set out.
We do not consider other assigned errors, it appearing that they raise questions, none of which need arise, or are likely to arise, upon a new trial. With costs to appellant.
Bird, C. J., and Moore, Steere, Brooke, Fellows, Stone, and Kuhn, JJ., concurred.