due, improper, illegal, or excess rate of speed, and there is no evidence in this case that the emission of steam from the engine was improper or negligent. It is the duty of the engineer to see that the track ahead of him is clear of obstruction, but the proximity of the Fike team to the railroad track would not of itself be sufficient reason to require him to stop his train. The fact that the plaintiff was injured is not evidence that the defendant is guilty of any negligence that would make it liable in damages; the fact of the injury does not prove that the defendant is liable.

"I charge you that in considering this case you must only consider the evidence introduced in court, and must determine the case as between the parties without sympathy, prejudice, or passion. Having heard all of the testimony in this case, if you are unable to determine by a fair preponderance of the testimony that the defendant was guilty of subsequent negligence or gross negligence, then your verdict must be for the defendant. I charge you that you should not disregard the testimony of the operators of the train, or other of defendant's witnesses, through prejudice or caprice, or without cause, merely for the reason that they are in the employ of the defendant company.'

No time need be spent in considering the first and second reasons for reversal stated by defendant's counsel, because the trial court charged the jury that the plaintiff and her husband were both guilty of contributory negligence in driving upon the track, and that the negligence of the husband was imputable to the plaintiff.

Even if the plaintiff was guilty of gross negligence in driving upon the track, that fact was not necessarily controlling of the case. We are of opinion that it cannot be said, as matter of law, that she was guilty of contributory negligence in not attempting to escape or jump from the wagon, under the circumstances of the case.

The third, fourth, and fifth reasons urged for reversal may be considered together, and they present the important question in the case. Was a case for the jury, on the ground of subsequent negligence of the defendant, made

out by the plaintiff? If so, contributory, antecedent negligence of the plaintiff is not a bar to recovery.

In Cooley on Torts, at page 674, the true doctrine is stated in the following language:

"If, therefore, the defendant discovered the negligence of the plaintiff in time, by the use of ordinary care, to prevent the injury, and did not make use of such care for the purpose, he is justly chargeable with reckless injury, and cannot rely upon the negligence of the plaintiff as a protection. Or it may be said that in such a case the negligence of the plaintiff only put him in a position of danger, and was, therefore, only the remote cause of the injury, while the subsequently intervening negligence of the defendant was the proximate cause."

See, also, 29 Cyc. p. 496.

The same rule is stated in 7 Am. & Eng. Enc. Law (2d Ed.), at page 437, as follows:

"And notwithstanding negligence upon the part of the person injured, he may recover if the railway company, after such negligence occurred, could, by the exercise of ordinary care, have discovered it in time to have avoided inflicting the injury."

See cases cited in the note, including Donohue v. Railway Co., 91 Mo. 357 (2 S. W. 424, 3 S. W. 848), in which it was said:

"Counsel indulges in a criticism of the cases in which this court has held that if the negligence of a defendant, which contributed directly to cause the injury, occurred after the danger in which the injured party had placed himself by his own negligence, was, or by the exercise of reasonable care might have been, discovered by the defendant in time to have averted the injury, then defendant is liable, however gross the negligence of the injured party may have been in placing himself in such position of danger. Such is the well-established doctrine of this court."

This rule is well stated by Justice MONTGOMERY in Richter v. Harper, 95 Mich., at page 225 (54 N. W., at page 769), as follows:

"It is true that the contributory negligence of the plaintiff does not prevent recovery in a case where the defendant, who knows, or ought by the exercise of the most ordinary care to know, of the precedent negligence of the plaintiff, by his subsequent negligence does plaintiff an injury. Battishill v. Humphreys, 64 Mich. 514 [38 N. W. 581]; Railroad Co. v. Mann, 107 Ind. 89 (7 N. E. 893); Cooley on Torts, 674."

After quoting the language of that author as quoted by us above, he continues:

"This rule does not permit recovery, notwithstanding plaintiff's contributory negligence, but it recognizes that such discovered negligence of plaintiff, or his negligence which should have been discovered, is not a contributing cause to the injury in a legal sense. This, we think, is the logical statement of the rule as deduced from the authorities."

In Labarge v. Railroad Co., 134 Mich. 139, on page 145 (95 N. W. 1073), Chief Justice HOOKER, after reviewing the Michigan cases, said:

"In all of these cases the negligence of the defendants occurred when there was a condition of danger, and it may be said that it was unimportant how such antecedent condition arose, or whether it was due to the negligent act of the plaintiff or not. The defendant's wrong being a want of ordinary care, which care would have prevented the accident notwithstanding plaintiff's antecedent negligence, it was responsible for it, and plaintiff's antecedent negligence being at most a remote cause, and there being no other negligence on the part of the plaintiff, he might recover. It has in some cases been said that his negligence might be said to be a remote, and not the proximate, Whenever the defendant sees a plaintiff in danger, or by exercising only ordinary care in the discharge of his duty should discover such danger, in time to avert an injury, and either fails, after discovering it, to take steps to avert it, or fails to discover the danger, the fact that the plaintiff's danger arose, in the first place, through his own negligence, does not prevent his recovery for an injury sustained."

cause.

* * *

See, also, the language of Justice LONG in Montgomery v. Railway Co., 103 Mich., at page 54 (61 N. W. 546,

29 L. R. A. 287), where reference is made to the case of Richter v. Harper, supra, and the Missouri cases:

"The cases do not attempt to define these acts as gross negligence, but place the right of recovery upon the ground that the proximate cause of the injury is the act of the defendant."

In Bladecka v. Electric Co., 155 Mich. 253 (118 N. W. 963), the trial court charged the jury, among other things, that, if they found that plaintiff's dangerous position and situation was apparent to the motorman in charge of the defendant's car—

"For a sufficient length of time to enable said motorman to stop his car and avoid running into plaintiff, and that said motorman, instead of stopping his car, negligently allowed the same to run upon and into said plaintiff while she was in the position aforesaid, and injured her, then the defendant is liable in this case, even though you should find that the plaintiff or her husband were originally negligent in driving into said dangerous position."

This court held that the charge was clearly correct, and affirmed a judgment for the plaintiff. Many more cases might be cited to the same effect, but we desist for want of space.

Counsel for appellant, in their brief, state the rule as follows:

"It is gross negligence where the wrongdoer, by the exercise of the most ordinary care, should have known of the precedent negligence of the plaintiff and of his peril, and subsequently does him an injury. Baldwin on Personal Injuries, § 138. Gross negligence, therefore, may be: (a) A deliberately wilful act; (b) an act so reckless as to be akin to wilful, and therefore presumed in law to be wilful; (c) a failure to exercise ordinary care to prevent injury to another, after his peril is, or should have been, discovered in the exercise of ordinary care. Such failure to exercise ordinary care to prevent injury is so reckless that the law presumes it to be wilful; wilfulness or deliberate intent may be inferred from all of the circumstances-citing cases.

"If the claim of the plaintiff presents a case of gross negligence at all, it is under subdivision 'c' of the definition above given."

Whether plaintiff was in a position of danger a sufficient length of time to have been seen by defendant's engineer, and to have enabled him to stop the train, was a question for the jury, and we think that question was properly submitted to them, in the language of the charge which we bave quoted.

The distance within which the train could have been stopped, under the circumstances, including the condition of the engine when the emergency brake was applied, and the claimed fracture of the packing leather; the effect of such fracture upon the driving wheels of the engine, and upon the train-these were all questions of fact for the jury to consider, and were properly submitted to them. It will be noted that the engineer nowhere claims that he thought the team would get off the track before he reached it, but he says he did not see it.

Was the verdict against the weight of the evidence? Proper consideration of this question has rendered it necessary for us to read and consider the entire evidence in the case. This we have done.

We said, in Gardiner v. Courtright, 165 Mich. 54 (130 N. W. 322), after a review of the decisions of this court, that we would only reverse a case upon the question of the weight of the evidence, when the verdict was against the overwhelming weight of the evidence; and that the verdict must be clearly against the great weight of the evidence, to require this court to overrule the decision of the circuit judge refusing a new trial. In view of this well-established rule, we cannot say that a verdict for the plaintiff in this case was against the weight of the evidence, or that the circuit judge erred in denying the motion for a new trial upon that ground.

Was the verdict excessive in amount?

The plaintiff, a housewife of a common laborer, of the