I find reversible error. The court instructed the jury:
"In other words, the testimony in this case shows that as a matter of law that this defendant railroad company was guilty of negligence, and that this negligence was the proximate cause of this accident, so we needn't spend any time upon that part of the case."
This was an instruction to find for plaintiff, and was not corrected by subsequent instruction that if plaintiff was guilty of contributory negligence she could not recover. Under the undisputed evidence defendant was entitled to a directed verdict. The court was in error in instructing the jury:
"I know of no rule of law, or statute of this State, that requires having a person look for any train at any given distance; they are bound to use reasonable *Page 462 care before going upon any railroad track or endeavoring to cross the track."
This instruction was preceded, but not immediately, by the following:
"Her testimony is, as I have already given it to you, that she, when 15 feet east of the spur track, observed this engine standing upon the highway with the tender at least partly onto that part of the street lying between the pavement and sidewalk, and that she did not again look to see whether or not that engine had started up, or whether she was in a place of danger."
Under the circumstances, plaintiff was in a position and had opportunity to watch the movement of the engine, and it was her duty to maintain a watch of its progress as well as heed that of her own, and, had she done so, the accident would not have happened.
She was guilty of a want of ordinary care, and the accident happened by reason of the negligence of defendant and the contributory negligence of plaintiff. Johnson v. Railroad Co.,246 Mich. 52.
The judgment is reversed, with costs to defendant, and without a new trial.
SHARPE, NORTH, FEAD, and BUTZEL, JJ., concurred with WIEST, J. *Page 463
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