This case has been considered again, on rehearing. Mr. Justice CLARK has written on the rehearing. *Page 398 I am in accord with his conclusion, but am at variance with his statement that "the theory of gross negligence ought to have been omitted from the charge." It is conceded that LaBarre, the brakeman in charge, waved the waiting vehicles across the track behind the caboose. The occupants of the vehicles could not see the west-bound track to the east, and but for the brakeman's invitation it was a negligent act upon their part to attempt to cross behind the caboose without knowing what was on the west-bound track at the east. But, being assured by the brakeman's invitation, Volkner started across. As soon as he had cleared Fischer followed him. When he moved up plaintiff's decedent started, lie started into a place of danger but did not know it. The brakeman claims he did not know it until later, when conductor Clark notified him. It was his duty to know it. He was at the rear end of the caboose, and by taking two or three steps to the north, where he could have seen east on the west-bound track, he could have observed the passenger train approaching, and could have kept plaintiff's decedent from going across. Had he done so, this lawsuit would not be here now, but plaintiff's decedent would be. His failure to ascertain that plaintiff's decedent was going into the danger zone and notify him was subsequent or gross negligence.Denman v. Johnston, 85 Mich. 387; Frost v. Railroad Co.,96 Mich. 470; Knickerbocker v. Railway Co., 167 Mich. 596;Wexel v. Railway Co., 190 Mich. 469; Vought v. Traction Co.,194 Mich. 343; Simon v. Railway, 196 Mich. 586;Flanagan v. Arnold, 236 Mich. 180.
The negligence of plaintiff's decedent was in attempting to make the crossing behind the caboose over a double track without learning what was coming on the north track. For this he relied upon the assurance of the brakeman. But conditions changed after *Page 399 the other two men started across and before he attempted it. It was then hazardous. The brakeman should have discovered this and protected him. His failure to do so was subsequent or gross negligence. I am unable to see anything in this contention which in any way conflicts with the holding in Gibbard v.Cursan, 225 Mich. 311.
The judgment of the trial court is affirmed.
SHARPE, C.J., and SNOW, STEERE, and McDONALD, JJ., concurred with BIRD, J.