approach. The proximate cause of the injury, we contend, was the Ann Arbor Company running its train over this approach and not stopping when it was signaled at the proper place, but they ran over this approach when persons were using it to come to the place where it had invited them. When they did that, they violated that high duty that the law of our country imposes upon this railroad corporation when it allows them to engage in this business which is for the purpose of profit. It says, In doing those things, you shall handle them safe. It doesn't say 'reasonably safe' or 'ordinary care,' but it says 'safe,' and upon this proposition they told Mrs. Wells just as much as though they had handed her a paper.

"Mr. Shields: I take exception to the argument. "Mr. Chapman: I withdraw that. They owed her the duty when she stepped upon that place; they said to her, "This is safe;' that 'we will insure you that you do not get hurt by us on account of our negligently managing our trains.'”

The court advised the jury that it was the duty of the defendant to provide a reasonably safe and convenient means to reach the station, not having done which, plaintiff was rightfully upon the right of way; that it was defendant's duty to keep a sufficient lookout to discover whether there were persons at the station signaling the car, and if it was so dark that such persons could not be seen, to slow the speed of the car so that it could stop it if necessary; that if they found that signals were given upon this occasion and defendant did not regard them and ran its car until it struck the plaintiff, and plaintiff was without negligence, she could recover. The jury was also advised that if plaintiff had time to get out of the way "after she had realized that the car was not going to stop at the station" she could not recover unless defendant was guilty of gross negligence. Thereafter the court instructed the jury upon the subject of gross negligence, applying the doctrine in this wise:

"And if said engineer did actually see Mrs. Layton [the daughter] when she was signaling the train to stop, as she has testified, and saw Mrs. Wells approaching the station in the manner in which she has described, within a distance where, by the use of reasonable care, the engineer could have stopped his car, and he saw there was danger of running his car against plaintiff or so near her that the plaintiff might be struck, then said defendant would be guilty of gross negligence, and plaintiff would be entitled to recover, whether she was guilty of contributory negligence or not."

In argument opposed to granting the motion for a directed verdict one of the counsel for plaintiff said upon the subject of gross negligence:

"In the first place, your honor, the defendant was guilty of gross negligence in not lighting its premises so the motormen could have seen persons congregating at the platform and signaling them. There is no presumption, by myself at least, that a motorman would be so malicious, so wanton, so calloused to every touch of humanity that he would want if he saw these women there signaling and saw them signaling at the regular passenger station, it can't be that he is such a monster that he wouldn't have stopped. He undoubtedly didn't see them because the railroad company had neglected its duty to light the premises, and if your honor please, and if he couldn't see them and he knew that was a place where people approached the crossing, he knew that a party had gone up, or the defendant knew that a party had gone up there that morning from Howell and would naturally want to take the train back to Howell that night, and if he couldn't see whether people were congregating there to take it or not, he owed a duty to be careful, according to the circumstances, and approach that crossing with his train under control, and that is alleged as one of the duties he owed in these premises. They are guilty of gross negligence, if your honor please, in not protecting their passenger, who was seeking to take passage upon the train, by proper conduct. First, by lights; second, by not approaching

their station as they ought to; and, third, your honor, in colliding with the woman at all."

No theory of discovered negligence of defendant is indicated by the declaration. These considerable references to the record are made to show how wide a range the testimony took and how many subjects were covered by the charge of the court, when in fact the real issue was a narrow one. No one disputes the right of plaintiff to go, as she did go, to a place upon the platform which was defendant's place to stop its gasoline cars to take on and discharge passengers. If defendant had maintained a safe and convenient way from the north to the platform, the fact might have been shown, perhaps, as affecting the right of the plaintiff to be where she was, but as affecting the defendant's negligence, it was immaterial, because it was not on account of the absence of such a way that plaintiff was injured; she did not approach the platform from the north, and did approach it by the convenient way across the farm and from the south. Yet it is plain that considerable was made of the fact that approaches to this platform from both directions were not maintained. Again, considerable was made of the fact that the platform was not lighted and provided with some means of signaling a car. Reference to the time-table, Exhibit M, discovers that no car was scheduled to stop at Preston at an hour when, in the summer season, a light would be necessary or even convenient. It is assumed that these matters probably affected the jury, since it is clear that the injury was the result of plaintiff's careless

ness.

Assuming that defendant was negligent in any, or in all, of the respects alleged in the declaration, the injury cannot be reasonably ascribed to its negligence. Plaintiff knew the car was late; that the night was

dark; that the platform was not lighted; that no means of signaling the car had been provided. She tried, properly enough, to signal the car. She wanted to go home. But it is obvious that she had no occasion to place herself in a position of danger, and equally obvious that the conditions, as they appeared to her, did not invite her into a place of danger. She was in no danger except from the moving car. There was every evidence that it would not stop at the platform. If the motorman saw the signals, and saw her, but, for any reason had determined not to stop at this station, he could not suppose that she would stand, or walk, so near the car as to be struck by it. Unfortunate as the affair was, it is clear that plaintiff's want of ordinary care contributed, at least, to the result. For this reason the court should have granted the motion for a directed verdict.

Errors were committed by counsel for plaintiff in making the opening statement to the jury and in the closing argument. The rule was violated in opening the case to the jury. A proper opening statement to a jury is neither an argument of the facts nor a discussion of the law of the case.

A proper closing argument does not permit counsel to ask the jury which one of them would accept the injury plaintiff is alleged to have suffered for a stated sum of money, or, in a case like this one, to ask a juryman what he would think it worth if plaintiff was his wife. Although admonished by the court, counsel repeated and elaborated such appeals to the jury.

Counsel, apparently in good faith, defends his action in closing the case, and this is the reason for doing more than merely advert to the subject here. He directs our attention to the opinion in Detroit, etc., R. Co. v. Van Steinburg, 17 Mich. 99, 119, where it is said, in effect, that in determining whether an injured person did or did not act prudently, in view

of circumstances presented to him, the jury must place themselves in the position of the injured person and examine the circumstances as, at the time, they were presented to him. This is a long ways from the position that, in estimating the damages which should be awarded for a particular injury, the jury may fix such sum as they would be willing to accept and suffer the injury, or such sum as they would accept if a wife or other member of the family was so injured. Counsel should not ask a jury to adopt this rule for awarding damages because it is not the true rule. If a court were to advise a jury that such a rule should be followed, the error would be immediately apparent. See, among other cases holding that the argument was reversible error, Morrison v. Carpenter, 179 Mich. 207 (146 N. W. 106); Hughes v. City of Detroit, 161 Mich. 283 (126 N. W. 214, 137 Am. St. Rep. 504).

No new trial will be granted.

BROOKE, C. J., and MCALVAY, STONE, BIRD, and STEERE, JJ., concurred with OSTRANDER, J.

MOORE, J. I think the questions involved were for the jury, and that, except for the argument of counsel, the case should be affirmed, but because of the argument it should be reversed.

KUHN, J., concurred with MOORE, J.