in the case of this boy it is a question to be settled by

12 men.

The case of Bird v. Railroad Co., 86 Mich. 79, cited by defendant's counsel, does not apply. In that case the deceased was killed in attempting to climb over the bumpers between the cars. It has never yet, I think, been announced as negligence per se to cross the railroad track in a public highway either in the front or rear of a standing engine and tender; and whether it is negligence to turn one's back upon the rear of such engine and tender, and take a few steps away from them, seems to me to depend upon the circumstances of the particular case in which it is done, and, if so, the determination of the question is very appropriately one for a jury.

It is also contended that, if the plaintiff had not been "rattled," he might have escaped. One put suddenly in peril is not required imperatively to do that which, after the peril is ended, it is seen he might have done and escaped. The law makes allowance for the fright and lack of coolness of judgment incident to such peril. It would be absurd to require of this boy, when he saw and heard the car upon him, and was suddenly called upon to decide how he should escape it, to exercise the same coolness and forethought that an uninterested by-stander might manifest. Strand v. Railway Co., 64 Mich. 219. Under our own decisions, this case should have gone to the jury. Detroit & Milwaukee R. R. Co. v. Van Steinburg, 17 Mich. 100; Cooper v. Railway Co., 66 Id. 261; Hassenger v. Railroad Co., 48 Id. 205.

In stating the facts of this case, regard has been had only to the evidence on the part of the plaintiff. If the witnesses for the defense are to be believed, there is no question but the plaintiff was negligent. But the truth of the issue made in the record is for a jury to deter

mine, and on the plaintiff's showing there is certainly made a case upon which reasonable men might fairly differ in passing upon the question of his negligence.

The judgment is reversed, and a new trial granted, with costs of this Court to plaintiff.

MCGRATH and LONG, JJ., concurred with MORSE, J.

GRANT, J. (dissenting). Plaintiff was injured by the tender of a switch-engine in a public street known as "Park Avenue," in the city of Jackson, where that avenue crosses the defendant's tracks, September 19, 1887. He claims that the tender and engine were backed up against him without any warning by ringing the bell or blowing the whistle. The allegation in the declaration is that he was injured "while walking on and along said public highway, with all due care and caution."

Plaintiff was 14 years and three months old. He was born and reared in Germany, in a town of about 2,000 inhabitants, through which a railroad passed. He there lived within half a mile of a railroad crossing, and saw the cars daily. He went to school till he was about 14 years old, when he came to this country, arriving at Jackson in July, 1887, where he lived with his uncle. On the morning of the accident he was on his way to his daily work, being late. On page 614 is a diagram showing the situation of Park avenue, the railroad tracks, and the passenger-house.

Main street crosses Park avenue nearly, at right angles, and to the north of the passenger-house, the north-west corner of the passenger-house being very near Main street. The accident occurred on track marked "No. 3." The engine and tender were standing on this track near the east side of Park avenue, with the engine facing east. Plaintiff's place of work was in the north-western part of the city. His home was south upon Park avenue. The

course he took on this morning was not the most direct from his home to his work, nor the one he usually took. He approached the crossing on the west side of the avenue. As he approached the track, he inclined to the right, and testifies that he was near the center of the avenue when he reached track No. 3; his intention then being to go around the passenger-house on Park avenue, north to Main street. He then changed his mind, and concluded to go to the platform of the passenger-house, across the company's grounds, and reach Main street at the north-west end of the depot. He did not go from that point directly across the tracks to the platform, but turned his back to the tender, and walked in the center of track No. 3 to the west. He heard no bell or whistle. He had taken but two or three steps when the tender approached him. He heard the noise, looked back, and, seeing it very near him, in his confusion jumped first to one side and then to the other, when he was struck. Such, in brief, is his statement of the manner in which the accident occurred. He had lived in Jackson about two months, and had crossed these tracks on Park avenue several times, and had daily crossed the railroad for a long time, either there or elsewhere. Once he had jumped onto a train near the Michigan Southern depot, and was driven off. The case is of sufficient importance to quote some of his testimony.

On direct examination he testified:

"Was going to work in the morning, and cut across the track. First I was going around the depot, then I made my mind up and went towards the platform. That engine was standing on the east side of the crossing. I was going west, and I kept right on going west, and the engine started off. I didn't hear it coming, and as soon as I heard it rattle I looked around, and she was right up to me, about two or three feet from me. I made a jump, but could not get off. She caught me on the heel, and throwed me down, and dragged me quite a ways."

On cross-examination he testified as follows:

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Q. If I understand you, you walked right between those rails?

"A. Yes, sir.

"Q. Then you were not going towards the depot platform, was you?

"A. Yes, sir.

"Q. You could not be going towards the depot platform and keep on between the rails, could you?

"A. Yes, I could.

'Q. The track didn't run up to the platform?

"A. It runs towards the platform up that far, and then I cross over.

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Q. Isn't it a fact that you started to walk down the track to go out to Main street?

"A. I started on that way, but I made up my mind I was going to go to the platform.

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Q. You had not steered directly towards the platform, had you?

"A. No, sir.

"Q. But walked right along the track?

"A. Yes, sir.

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Q. West? And this engine right behind you? "A. Yes, sir.

"Q. You expected when you turned to go right down. across the railroad grounds to Main street, did you?

"A. I expected to go to the platform, and on the platform to Main street.

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Q. You were not going to the depot on any business that you had with the road?

"A. No.

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Q. You had stopped walking along the street? "A. No, sir.

A. Yes, sir.

"Q. Then you had stopped crossing the railroad along with the street? You had stopped going that way, the same way the street goes, and had turned to go the same way the tracks were?

"A. That is all; I turned.

"Q. And had gone how far on your road along between the rails when you heard the engine just behind you?