had the car under control, he could have prevented the injury. And it is held that, notwithstanding the negligence of the deceased, it was a question for the jury to determine whether or not the motorman used that care and caution which, under the circumstances, he was bound to exercise, in view of the danger as he must have seen it.

2. In a personal injury case the declaration averred that the plaintiff was seriously hurt, wounded, and crippled, and his back and spine seriously hurt, crippled, bruised, sprained, and injured, by his being struck by the defendant's car, which injuries were permanent and incurable. A physician was allowed to testify that the condition of plaintiff's lungchronic inflammation of the lung-and the tenderness of the spine might result from a severe injury to the back and spine. The testimony was objected to on the ground that no injury to the lung was averred in the declaration. And it is held that the declaration is sufficient to admit the evidence, under the rule laid down in Johnson v. McKee, 27 Mich. 471, which does not require the plaintiff to aver all the physical injuries which he sustained, or which may have resulted from or been aggravated by the tort, even though they do not necessarily result from the original injury; that if such injuries can be traced to the act complained of, and are such as would naturally follow from the injury, they need not be specifically averred.

Error to Ingham.

(Person, J.)

Submitted on briefs

October 12, 1894. Decided December 18, 1894.

Negligence case. Defendant brings error. Affirmed.

The facts are stated in the opinion.

Moore & Moore and Smith, Lee & Day, for appellant.

M. V. & R. A. Montgomery, for plaintiff.

LONG, J. May 22, 1893, John O. Grinnell, the deceased, and eight others, constituting the Frank Tucker Theatrical Company, were engaged in giving a street parade in Lansing. They had gone to North Lansing, and had returned on a street car, getting off the car a few blocks below Michigan avenue, where the car stopped. They passed ahead of this car, four walking on one side of the car

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track, single file, about six feet apart; the others walking on the other side of the track, in the same order. Mr. Grinnell was on the east side, and near the track. Six were ahead of him, each playing a wind instrument, and two behind him playing snare and bass drums. He was playing a cornet. The car from which they alighted followed soon after, and overtook them just as they reached Michigan avenue. The platform of the car passed Grinnell, but the body of the car struck him on the shoulder, knocking him down. Mr. Grinnell on the trial testified:

I

"I was very near the car track, but not between the rails. I remember something striking me. I heard nothing; heard no bell indicating any warning. I recollect something struck me, and after that the first thing I knew I was on my feet, and people were holding me up. was struck about at the point of the right shoulder blade. I knew I was hurt as soon as I came to my senses. They took me to the hotel. Two of my teeth were loose, besides one that was knocked out. After getting to the hotel, and while confined there, I discovered the injury to my back, my arm, and my right side, and a slight injury to my right hip. I got hurt on Monday, and got out on Friday. Before leaving the hotel, I noticed a sore spot on my right chest, perhaps two or three days after the accident. It was followed by spitting of blood. I never had anything of that kind before. This spitting of blood continued for about two weeks. At the end of two weeks, or perhaps a little longer, I had a dry cough started,hacking cough,-and I had it ever since up to about five weeks ago, and from that time until now I have been conghing very bad, and it is growing worse all the time. When I was hurt I weighed about 132 pounds; now I weigh about 109 pounds. Aside from whooping cough and scarlet fever, which I had when quite small, I have never been sick."

He was asked:

"State to the jury whether you were thinking about or looking out for any indication that a car was coming.

"A. Yes, sir; I always did, because I always had to walk so close to the track. I was playing at the moment I was hurt. I thought I was far enough from the track

to be out of the way. I was looking out for the car, and was positive that I would hear the signal, if there was any near."

On further examination, Grinnell testified that he knew the car could not pass without hitting him, but that he was looking out for it, and had no doubt that he could hear the bell and get out of the way.

Some considerable testimony was given tending to show that no bell was rung or other warning given when the car approached Michigan avenue, where the accident happened, and there was testimony also that the car was running at a rate of speed greater than usual, and that it did not slow down when it reached Michigan avenue. Just what rate of speed it was going plaintiff's witnesses do not state, but many of them say that it was faster than the car usually ran, and some say it was running rapidly. One witness testified that he had been in the employ of the defendant company before that time; that he noticed the car approaching the band, and, when within half a car length of Grinnell, he noticed the lever in the fourth notch,-that is, next to the last notch,the last notch giving the car the fastest speed it could attain, and that no bell was sounded. Both the motorman and the conductor, as well as others, testified that the bell was sounded, and that they were going slow, the motorman saying, "Not more than three miles an hour." The conductor testified, further, that his orders were to slow down at the Michigan avenue crossing. The motorman testified that a high wind was blowing from the west, and, as he saw the members of the band ahead of him, his attention was directed to the man carrying the bass drum, as he feared he would be blown upon the track; that he saw Grinnell; saw him brace up against the wind, but did not pay so much attention to those on the east

103 MICH.-4.

side, as he was afraid the wind would carry those on the west side onto the track. He says that when about five or six feet from Grinnell he saw him; that he was walking along blowing his horn, and as the wind came down Michigan avenue he leaned over to protect himself against it, and that was the reason the car struck him; that, if Grinnell had continued to walk the same distance from the track, the car would not have struck him. The motorman denies that the lever was in the fourth notch, and says that he did not have any current on when he crossed Michigan avenue, but that he ran about 34 feet after he struck Grinnell. On his cross-examination he was asked:

"Suppose you had run up behind these people carefully and slowly, until you had attracted their attention by your bell, that would not have been a difficult job? "A. Oh, no."

Under this testimony, the court directed the jury:

1. That Grinnell was guilty of negligence, and "under some circumstances this would prevent a recovery, but in this case it may or may not, as you may determine regarding certain other facts to which I shall call your

attention."

2.The car which struck the plaintiff had that same forenoon carried the band to North Lansing. The same conductor and motorman were in charge. They knew that the band paraded Franklin street. They had brought this band from the Franklin-street parade down Washington avenue to Ionia street, and there let the band off. The band from that point had proceeded down Washington avenue, to the knowledge of the street-car men, had passed the street car in front of the bank, was in plain view of the motorman when the car started, and the motorman knew what the purpose of the plaintiff and the other members of the band was in being on the street. It was not a case where the injured party was supposed to be crossing the street, but it is a case where the motorman in charge of the car knew that the band was parad

ing the street, knew that their backs were towards him, knew the positions of the members of the band, and knew the noise they were making with their instruments.

"It is sometimes very correctly said that if one discovers another to have been negligent he must take precaution accordingly, omitting which, he is liable to the other for the damages which follow from his own want of care; for, however nearly related two separate negligencies may be, the one cannot bar an action for the other unless it is contributory, and, though an unseen position might contribute to an accident, a discovered one cannot.

"The plaintiff, Grinnell, was not a trespasser upon the street-car tracks in any sense. The right of the street railway in the street is only to use the street in common with the public. It has no exclusive right of travel, even upon its track; and it is bound to use the same care in preventing a collision as is the driver of a wagon or other vehicle. Street cars have precedence necessarily in the portion of the way designated for their use. This super

ior right must be exercised, however, with proper caution and due regard for the rights of others; and the fact that it has a prescribed route does not alter the duty of the defendant to the public, who have a right to travel upon its track until met or overtaken by its cars. There is no question made in this case but that the motorman saw this band. He says that he saw the plaintiff, and he says that because of the wind he was watching the man with the bass drum, on the west side of the track.

"If the plaintiff, Grinnell, and other members of the band, were, or if the plaintiff, Grinnell, alone was, when viewed from the motorman's position on the car, in a place of danger, either on or near the track, it was the duty of the motorman, taking into consideration his knowledge of the situation and of the purpose and intention of the band,-it was the duty of the motorman to run his car with corresponding care, and in a manner reasonably safe under the circumstances, both as to speed and control; and if, under these circumstances and such duty, the motorman intentionally ran his car at what he knew was a high and dangerous rate of speed, not, indeed, intending to injure any one, nor wishing to injure any one, but in reckless disregard of the consequences to the plaintiff and members of the band, and if because thereof the plaintiff was injured, then the company was to blame,