I agree with the Chief Justice that the judgment for defendant Elias should be affirmed. But I do not agree that actionable negligence against the company was established. The crossing was not in the little village of Martin but outside in the open country. Plaintiff's brother Arthur, who was driving, testified:
"I had a view of that car approaching from the north for about 1,000 feet. I didn't take notice that when I was back there 150 feet I could have a view of the north of an approaching car for nearly half a mile. From a point in the highway, approximately 150 feet south of the first rail of the track you have a clear view of the north along the interurban track for quite a long distance, 1,000 feet, not more than that, to my idea. From that point 140 feet back from the track there are no objects to obstruct my view of the north, down the track."
The crossing was a crossing in the open country with a view for 150 feet back from it extending 1,000 feet in the direction from which the car came. Under our authorities negligence cannot be predicated on speed at such crossing. InRobinson v. Railroad Co., 79 Mich. 323 (19 Am. St. Rep. 174), it was said:
"It is to be presumed that the defendant had complied with the provision of the statute in regard to fencing its road, and constructing this crossing with due regard to the safety of persons and property passing over it, and providing its engine and cars with the proper appliances. Having done this, it was entitled to the use of its road for the passage of trains at all times, to increase the speed of its regular trains when behind time, and to run special or wild trains whenever its business required. The law did not limit the rate of speed of its trains. The business of the country demands of railroads rapid transit, both for persons and property. It has nowhere been held that a speed of even 60 miles an hour is negligence, when a train is running through the country outside of villages and cities, or through a sparsely settled community. It is well known that trains are now *Page 182 being run in many parts of the country at the rate of 50 to 60 miles an hour."
See, also, Shufelt v. Railroad Co., 96 Mich. 327; Mulvaney v.Railroad Co., 233 Mich. 350.
There were five occupants of the automobile. No one of them testified that he or she was listening for a car. Indeed, their testimony affirmatively shows that none of them were paying any attention or giving any heed to the railroad until the automobile was too close to the track to be stopped. Under these circumstances, I think their testimony that they did not hear any signals given was negative testimony under the rule laid down in Lambert v. Railway Co., 209 Mich. 107, where many of the authorities are considered.
I perceive no reason for reversing the judgment for both defendants.
SHARPE, STEERE, WIEST, and CLARK, JJ., concurred with FELLOWS, J.