fifty, or sixty miles an hour. All train schedules are planned and framed upon practically that basis, and the business and commerce of the country demands that sort of speed, the public recognizes it, and the courts hold in view of that the public must also recognize, when they approach a railroad crossing in the country at any point, that they may expect and should expect, at any time, a passenger train, or a freight, for that matter, to be coming along at the rate of forty or fifty or sixty miles an hour, and they are all charged with notice of that. "The same rule I do not understand to obtain in cities or villages or congested communities. When trains leave the open country and approach settled districts, then it becomes a question of what care and caution ordinarily prudent men would exercise under such circumstances. "Now it is for you to say what the character of this particular crossing was; if it was, to all intents and purposes an open country crossing, then you would not be at liberty to consider the question of the high rate of speed as an element of negligence. It is for you to say what its character was, what the surroundings were, what the conditions presented there were on the occasion in question; how much of a settlement there was there; how much traffic there was there; what do the facts show as to what the conditions were? You have heard the testimony; you must say what it is. "Even at that crossing, or at any crossing, it would not follow that a speed of thirty-five or forty, or fortyfive miles per hour would, in and of itself, be negligence, or be negligent. It would not, as a matter of law, standing by itself, constitute negligence. It is a question to be determined in view of the facts and circumstances surrounding it, and the conditions presented. It must be found in the light of those surrounding circumstances and conditions, and you must say whether or not, in the light of those circumstances and conditions, this train was operated not only with reference to speed, but with reference to signals, in a prudent manner, and in a manner that ordinarily prudent men would have operated it under the same circumstances, or in an imprudent manner, or a careless, reckless manner. "A high rate of speed is not, in itself, negligence. The question for your determination is whether or not those in charge of the passenger train on approaching the crossing, operated the train with reasonable and ordinary care. In determining this, you are at liberty to consider all the testimony as to the speed of the train and warning by bell and whistle, or lack thereof, and in fact, all other facts and circumstances that have any bearing upon it. "In determining what would amount to reasonable and ordinary care in the operation of a passenger train on approaching a crossing, you may and should consider the conditions as they existed at the crossing so far as they were apparent to those operating the engine of the passenger train, or in so far as those conditions should have been apparent to those operating that engine had they been in the exercise of reasonable and ordinary care." It is the contention of counsel for the appellant that the submission of the question of speed was error, because it is their claim that the crossing in question was, in effect, nothing more than an ordinary country railway crossing and that there were no special circumstances and conditions existing at this crossing that would bring it from without the rule that upon an ordinary country crossing there is no legal limitation upon the rate of speed at which a train might be operated. With this contention we cannot agree. We think that the situation here presented was vastly different from those which surround the ordinary open country crossing. The crossing was virtually in a railroad yard. There was a freight train engaged in switching operations. There were four sets of tracks across the street at the point of crossing. The depot was about 1,300 feet east and was in plain sight of the crossing, and the crossing was upon one of the main traveled streets of the village of Schoolcraft, about 20 rods south of the business section of the village and within the village limits. It is true that there was no village ordinance with reference to the speed of trains operating across this crossing, but we do believe that the situation presented brings it within the rule which says that where there are special circumstances and conditions which should, and ordinarily would, induce an ordinarily prudent person to exercise greater caution, the question as to whether or not the train was operated with ordinary care and prudence with reference to speed is one for the jury. See Guggenheim v. Railway Co., 66 Mich. 150; Thayer v. Railroad Co., 93 Mich. 150; Haines v. Railway Co., 129 Mich. 475; Gorton v. Harmon, 152 Mich. 473 (15 Ann. Cas. 461); Folkmire v. Railways Co., 157 Mich. 159 (17 Ann. Cas. 979); Littlewood v. Railway, 189 Mich. 388; Halloran v. Railway Co., 197 Mich. 308; Coston v. Railroad Co., 201 Mich. 232; Block v. Railroad Co., 202 Mich. 341. We think that the charge as given by the court was justified under the circumstances of the case. 3. Section 8302, 2 Comp. Laws 1915, reads as follows: "A bell of at least thirty pounds weight and a steam whistle shall be placed on each locomotive engine, and said whistle shall be twice sharply sounded at least forty rods before the crossing is reached, and after the sounding of the whistle the bell shall be rung continuously until the crossing is passed, under a penalty of one hundred dollars for every neglect: Provided, That at street crossings within the limits of incorporated cities or villages, the sounding of the whistle may be omitted, unless required by the common council or board of trustees of such city or village; and the company shall also be liable for all damages which shall be sustained by any person by reason of such neglect." These statutory requirements were first brought into the case by defendant's requests Nos. 4 and 5, and the court read a portion of the statute to the jury and explained its effect. In the certificate of the judge 204-Mich.-26. annexed to the bill of exceptions is found the following: "At the close of the charge and immediately after the jury had retired, counsel for the plaintiff called to the attention of the court, in the presence of counsel for the defendant, the fact that the plaintiff had at no time, throughout the trial or in argument insisted upon any rights under the statute to which the court referred in the charge and the further fact that this statute was first brought into the case by reference thereto made by counsel for the defendant in argument to the jury and in their request to charge. To this, counsel for the defendant agreed. It was then in open court stated by Mr. Geer, representing the defendant, that no advantage would be taken by the defendant, on appeal, of such reference to the statute as was made by the court in the charge to the jury, thereby avoiding as it appeared to the court, the necessity of recalling the jury for the purpose of further instructions in regard to the statute." It was the contention of the plaintiff that because of the proviso in the statute, and it being conceded that the accident occurred within the limits of an incorporated village, the statute was inapplicable insofar as the failure to blow the whistle was concerned. There was testimony from witnesses that the bell was not ringing when it went over the crossing. In view of the concession made by counsel, according to the certificate of the judge, and in view of the positive testimony of witnesses that there was no bell ringing, we think that the question of the negligence of the defendant was properly submitted to the jury, and the inadvertent reference of the court in his charge to the statute should not at this time be taken advantage of. 4. A careful reading of this record has satisfied us that there was abundant evidence to warrant the submission of the question of the defendant's negligence to the jury and that the verdict was not so contrary to the great weight of the evidence as to warrant our holding that the court erred in refusing to set the verdict aside on that ground. We are of the opinion that the questions involved presented issues for the jury which were submitted to them with proper instructions as to the law applicable thereto. Finding no error, we are constrained to affirm the judgment. OSTRANDER, C. J., and BIRD, MOORE, STEERE, BROOKE, FELLOWS, and STONE, JJ., concurred. TIPSON v. JEANNOT. 1. COURTS-PROBATE COURTS-JURISDICTION. A probate court, having assumed jurisdiction of the estate of a deceased person, has exclusive jurisdiction with reference to matters concerning that estate which it can properly hear and determine. 2. SAME. The probate court, upon the final hearing as to the distri bution of the estate of deceased, can determine the rights of the parties under a postnuptial agreement between deceased and her husband settling their property rights pending divorce proceedings. 3. SAME. In a suit for the specific performance of a postnuptial con- |